Kristi Noem says that virtually anyone could face a Kavanaugh stop

Trump started off the day with an Insurrection Act threat. DHS Sec. Noem followed up by saying that anyone "surrounding" any DHS target has to prove their legal status.

As President Donald Trump ramps up his threats against the people he is supposed to be working for, his administration’s extreme immigration enforcement led Homeland Security Secretary Kristi Noem to admit that anyone — U.S. citizen or otherwise — should be prepared to have to prove their citizenship to DHS agents.

Asked about U.S. citizens being asked to provide proof of citizenship in Minnesota and whether that is “targeted enforcement,” Noem said the following:

In every situation, we’re doing targeted enforcement. If we are on a target and doing an operation, there may be individuals surrounding that criminal that we may be asking who they are and why they’re there and having them validate their identity. That’s what we’ve always done in asking people who they are, so that we know who’s in those surroundings, and if they are breaking our federal laws, we will detain them as well until we run that processing.

Importantly, Noem did not reject the premise of the question or reassure Americans that such a question is ridiculous. Instead, she merely tried to limit when and under what circumstances it is happening — and, presumably, will continue to happen — under her leadership.

But, with a closer look, even that falls apart.

First of all, there is a mountain of evidence that the first sentence of Noem’s statement is a lie. Ask Frank Miranda or Maria Greeley, ask Jesus Gutiérrez or Mubashir, ask any of the “more than 50 Americans who were held after [immigration] agents questioned their citizenship’ during 2025” who were identified by Pro Publica.

But, for a moment, let’s set that to the side.

The secretary of Homeland Security on Thursday said that if you are found in the vicinity of a person subject to DHS’s “targeted enforcement” operations, you are likely to be detained if you cannot prove your citizenship or legal status — if you cannot prove that to whatever agent might be involved in the operation.

The limitlessness of that is clear if one examines what she said — and didn’t say.

Noem didn’t say what constitutes the “surrounding” area. Given the broad evidence of sweeps of parking lots and places of employment, blessed by the U.S. Supreme Court in its September shadow docket order allowing the racial profiling in the Los Angeles area of Latino people in low-wage jobs, the limitations claimed in her statement become virtually meaningless — particularly if you are not white.

Stops OK’ed in Noem v. Vasquez Perdomo have subsequently become known as a Kavanaugh stops due to Justice Brett Kavanaugh’s opinion concurring in the order, the only opinion authored by any of the Republican appointees in the majority.

If, as Noem said on Thursday, the administration’s view is that anyone “surrounding” any person involved in a Kavanaugh stop can have their citizenship questioned — a Kavanaugh stop once removed, if you will — then virtually anyone in the U.S. could find themselves subject to a Kavanaugh stop.

On top of that, Noem didn’t say what constitutes “validat[ion]” of legal status — a question that kept one woman in detention for 25 days because DHS officials didn’t believe that she is an American citizen.

Further still, this comes as video evidence mounts of the violent, masked, anti-constitutional project being engaged in by the federal immigration agents sent to Minnesota and elsewhere. The lack of concern for the First, Fourth, and Fifth amendments is manifest, as is — Minnesota and Illinois argue in their lawsuits against these mass-immigration-enforcement actions — the Trump administration’s attack on the Tenth Amendment.

Sharp abridgment of speech, free exercise, and assembly; unreasonable searches and seizures; an appalling lack of due process; and a complete disregard for states’ rights and the rights of the people.

In a lawsuit filed on Thursday by the ACLU and ACLU of Minnesota — with support from the law firms of Covington & Burling, Greene Espel, and Robins Kaplan — the stark reality on the ground in Minneapolis and St. Paul was laid bare and in great contrast to Noem’s statement:

The justices of the Supreme Court knew perfectly well what the Trump administration is when it issued the order in Vasquez Perdomo. Kavanaugh knew when he wrote his concurrence. And his effort to dial back that damage by way of a late December footnote in an unrelated order has done absolutely nothing to blunt, let alone change, the behavior of the president, administration officials, and the people who work for them.

These are Trump, Stephen Miller, and Noem’s actions, but what is happening in Minneapolis — and what Noem admitted on Thursday — is the world the Supreme Court unleashed.

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The Insurrection Act threat

Noem’s statement was (at least) the second extremely alarming statement from the administration of the day, coming hours after Trump’s Thursday morning Insurrection Act threat.

Over at Executive Functions, Bob Bauer and Jack Goldsmith gave an initial and helpful, if disturbing, primer:

Trump Threatens to Invoke the Insurrection Act

Check it out, but the gist is summed up in a group publication that they co-led and quoted from in the piece: “The Insurrection Act in its current form provides broad authority without sufficient checks and balances.”

Over at the Brennan Center, meanwhile, Joseph Dunn and Elizabeth Goitein had earlier published an explainer on the law — of which they initially noted that, while “it is often referred to as the ‘Insurrection Act of 1807,’ the law is actually an amalgamation of different statutes enacted by Congress between 1792 and 1871.“

More substantively, they continued, “Under normal circumstances, the Posse Comitatus Act forbids the U.S. military — including federal armed forces and National Guard troops who have been called into federal service — from taking part in civilian law enforcement. … Invoking the Insurrection Act temporarily suspends this rule and allows the president to deploy the military to assist civilian authorities with law enforcement.“

And, though they were in agreement with Bauer and Goldsmith that the law gives the president broad and vague powers, they did also highlight some key — and relevant — limitations:

Most important, no statute can override the Constitution. Accordingly, troops deployed under the Insurrection Act may not violate individuals’ constitutional rights. They may not, for example, search a person’s home without a warrant. And while the Insurrection Act is an exception to the Posse Comitatus Act, it is not an exception to other federal laws that might apply to their conduct (for instance, the law criminalizing the presence of federal troops at polling places).

Dunn and Goitein also provide a list of the times the Insurrection Act has been invoked.

Moving forward, expect more on these Insurrection Act questions at Law Dork, but this should suffice to provide a starting point for those looking for the first-step reading materials on the law and history in light of Trump’s threat.

In that presser, Noem was asked about the Insurrection Act.

She quickly responded — with a cheery look.

“I think the president has that opportunity in the future,” she said, adding, “It’s his constitutional right, and it’s up to him if he wants to use it.”

The Insurrection Act is a law, not a constitutional right. But, you, dear reader, already know that. Someone tell Noem, please.