Last week, a three-judge panel of Democratic-appointed judges on the U.S. Court of Appeals for the 9th Circuit refused to halt the Biden appointee’s order.

Approving the factors laid out by Frimpong, the panel observed that apparent Hispanic or Latino race or ethnicity has limited relevance in this context, because large numbers of native-born and naturalized citizens have such physical characteristics, especially in central California. The judges further noted that many people who are lawfully in this country speak Spanish or accented English. They likewise downplayed any suspicious nature to being at a particular location or working a certain job, citing Supreme Court precedent on the Fourth Amendment.

In its emergency application to the Supreme Court, the administration conceded that “no one thinks that speaking Spanish or working in construction always creates reasonable suspicion.” But U.S. Solicitor General John Sauer wrote that “in many situations, such factors — alone or in combination — can heighten the likelihood that someone is unlawfully present in the United States.” Sauer complained that immigration agents can’t detain people based on those factors “even after encountering someone who speaks only Spanish and works as a day laborer at a worksite that has been cited 30 times for hiring illegal aliens as day laborers.”

As the administration has done throughout President Donald Trump’s second term, Sauer casts the latest litigation as yet another instance of the justices needing to check their lower court colleagues. “When lower courts have tried to stymie other areas of immigration enforcement with unlawful, blunderbuss injunctions, this Court has not hesitated to stay those orders,” he wrote, citing recent examples of the high court siding with the administration (over dissent from Democratic-appointed justices).

Against that backdrop, Sauer is pleading with the justices to free the administration from what he called the “straitjacket on law-enforcement efforts.” How the court handles the request could indicate whether the justices agree with that dramatic framing, or whether they see that claimed confinement as a consequence of the Constitution rather than defiance of it.