The Supreme Court Enables Trump’s Cruel Immigration Agenda
In May, 1939, more than nine hundred Jewish refugees sailed aboard the M.S. St. Louis from Hamburg, seeking refuge from Nazi persecution—first arriving in Cuba, then, after most were denied entry, in the United States. The ship came so close that passengers could see the lights of Miami, but it was forced to return to Europe, where more than two hundred and fifty of the passengers eventually died in the Holocaust, in death camps like Auschwitz and Sobibór, or while hiding from the Nazis. In the aftermath of this humanitarian tragedy, the United States took steps—or so lawmakers thought—to prevent it from happening again, ultimately writing asylum protections into federal law. Supreme Court Justice Sonia Sotomayor, dissenting Thursday in a Supreme Court ruling that allows immigration authorities to evade these protections, invoked the memory of the St. Louis to underscore the cruelty of the majority’s approach.
“Congress passed the Refugee Act in 1980 because it did not want this country to repeat the mistakes of its past,” Sotomayor wrote, joined only by the court’s two other liberals, Justices Elena Kagan and Ketanji Brown Jackson. “Yet if the refugees on the M.S. St. Louis were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U.S. soil. The majority’s interpretation permits the Government to do that even if the refugees complied with all applicable laws and regulations, even if the port had ample capacity to inspect them, and even if turning them back would result in the very persecution from which they narrowly escaped.”
The decision in Mullin v. Al Otro Lado was part of a pair of immigration rulings in which the six conservative Justices, professing judicial restraint and careful adherence to statutory text, sided with the Trump Administration’s efforts to prevent migrants from entering the country and to expel hundreds of thousands of others who are lawfully here. The Al Otro Lado case, which sparked Sotomayor’s anguished dissent, involved the Administration’s bid to avoid processing asylum claims. The Trump Administration claimed, and the Court majority agreed, that it could sidestep the language of the asylum law—which allows anyone who “arrives in the United States” to claim legal protection—simply by preventing asylum seekers who arrive at the border from setting foot in the country. (A version of the policy began during the Obama Administration, when a surge of Haitian migrants at the Mexican border led officials to begin “metering” the number of asylum applicants admitted for processing. It was expanded during Trump’s first term but suspended in 2021, by the Biden Administration.)
“This case presents a straightforward question: whether an alien who seeks to enter the United States from Mexico ‘arrives in the United States when he or she is still in Mexico,’ ” Justice Samuel Alito wrote for the majority. “In ordinary speech, no one would say that a person ‘arrives in’ a place—for example, a house, a city, or a country—before the person enters that place.” For Alito, that sufficed, and he kept the analogies flowing. “A running back does not arrive in the end zone when he reaches the 1-yard line,” he wrote. “A guest does not arrive in a house when he knocks on the front door. An army does not arrive in a city by encamping outside its walls.” Alito portrayed the “metering” system as an inconvenience, at worst. “Metering does not permanently bar any alien from arriving in the United States and then applying for asylum,” he wrote. Indeed, the policy “merely delayed entry by some aliens as a way of improving a situation that both interfered with the proper conduct of inspection and created unsanitary, inhumane, and sometimes dangerous conditions at ports of entry.” (Justice Clarence Thomas, typically, would have gone even further; in a concurring opinion, he questioned whether Congress could even require the President to allow migrants into the country to have their asylum claims heard.)
But, as Sotomayor’s dissent made clear, the case was nowhere near as easy as Alito’s portrayal suggested. “The majority,” she wrote, “ignores that ‘arrival’ and ‘arriving’ in the immigration context have never focused on the precise location of a noncitizen’s feet.” Indeed, she wrote, “This Court has previously recognized that immigration statutes and procedures should not be construed to ‘create a perverse incentive to enter at an unlawful rather than a lawful location.’ Yet, the majority’s construction does exactly that: It tells asylum seekers that they may apply for asylum if they can make it across the border illegally but that they cannot apply if they patiently wait at the edge of a port of entry.” The majority’s benign portrayal of “metering,” Sotomayor continued, was belied by the facts. It “created dire humanitarian conditions at the border,” with “tens of thousands of those turned away waiting days, then weeks and months, for asylum processing that often never took place.”
The second ruling, Mullin v. Doe, concerned the Administration’s efforts to revoke the Temporary Protected Status (T.P.S.) granted to some three hundred and fifty thousand refugees from Haiti, after a devastating 2010 earthquake, and some sixty-one hundred refugees from Syria, during the repressive regime of Bashar al-Assad. The 1990 law in question allows the Secretary of Homeland Security to grant temporary legal status to those whose countries are deemed unsafe owing to war, natural disaster, or other crises. It also states that courts cannot review “any determination . . . with respect to the designation, or termination or extension of a designation, of a foreign state.” The majority, again in an opinion by Alito, interpreted “determination” to cover not only the ultimate decision about whether to grant or remove T.P.S. but also “the chain of events leading up to a decision.” But process matters, or should, to courts, and as Kagan argued in dissent, joined by the other two liberals, although Congress left the final decision up to the Secretary, it also set out a series of requirements for reaching that judgment, including consulting with “appropriate agencies” about “conditions” in the countries involved. Whether the Secretary complied with those requirements, Kagan noted, is a matter ordinarily subject to judicial review; here, the scant evidence was that an aide to then Homeland Security Secretary Kristi Noem advised the State Department that the T.P.S. designations were up for review, and the Department responded that it had “no foreign policy concerns.” Kagan summarized: “After today, a Secretary can announce to the world that she didn’t consult with anyone—more, that she didn’t evaluate country conditions at all—before making, extending, or terminating a TPS designation. And the courts will be powerless to intervene.”
The even more alarming part of Alito’s ruling involved an aspect of the case that the majority agreed was subject to judicial review: the claim that the decision to end T.P.S. for Haitians involved racial animus, in violation of the equal-protection clause. The evidence on this was abundant and came from the President himself. Haitian refugees, Trump has said, “are eating the pets” and “probably have AIDS”; he’s called Haiti a “shithole country” and “filthy, dirty, disgusting.” As Kagan put it, “The references—of filth, disease, and primitiveness—are shot through with racial stereotypes and tropes. It is hard to imagine the statements being made today of any White community.” Trump’s remarks, she concluded, “fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.” Alito and the other conservatives managed not to hear any of that. “None of the cited statements by either the president or the secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications,” Alito wrote—although he could not bring himself to quote any of them. These hear-no-evil contortions were reminiscent of the conservative majority’s 2018 ruling in Trump v. Hawaii, the Muslim travel-ban case, in which those Justices declined to look beyond the “facially neutral” language of the ban to examine Trump’s anti-Muslim statements.
What is going on here? Some members of the conservative majority have, on occasion, exhibited a willingness to stand up to Trump’s most egregiously unlawful actions. In February, three of them—including, much to Trump’s fury, two of his own appointees—joined with the liberals to slap down his assertion of emergency power to impose tariffs. Next week, I expect, will provide additional examples: a ruling against Trump’s executive order to eliminate birthright citizenship and another limiting his authority to fire members of the Federal Reserve. But it is also true that this Court is inclined to be unduly deferential to Presidential power, especially when it comes to matters of foreign policy and of immigration enforcement. The conservative Justices take a consistently grudging view of challenges to Presidential determinations in this arena, privileging executive authority over the rights of individuals—particularly when those individuals are migrants.
The nation’s immigration laws are badly in need of fixing. Petitions for asylum have at times overwhelmed the immigration courts, and it is necessary to consider reforms that would streamline the asylum system and make it more manageable. Similarly, T.P.S. is, by definition, not intended to be permanent; at some point, it can and should be ended. But this Administration is not interested in making a flawed system work better. It is bent on a maximalist campaign to close borders and expel as many migrants as possible, whether they are here legally or not. In this un-American endeavor, the Court’s conservative majority is proving itself, once again, Trump’s willing accomplice. ♦