What To Make Of The Supreme Court’s Ruling That Appears To Upend Decades Of Asylum Law

Thing is, the President always brags about appointing judges who “interpret the law exactly as written”. (As if Liberal judges always freelance, improvise and legislate, and Conservatives don’t!)

U.S. Asylum law, exactly as written, right now is this:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum.

That doesn’t mean they get to stay. And the President has a lot of say over who does and who doesn’t.

But if you were interpreting law exactly as written, it’d be that. Nothing about spending time in Mexico. Nothing about first being rejected for asylum by Honduras if you and your family are from Guatemala, or vice-versa.

Now, we’re not accusing the Supreme Court of being blatantly political when it overturned a lower court ruling last week compelling Trump to hold off on new rules effectively blocking asylum seekers from Central America from applying for asylum in the U.S. The new Trump rules require asylum seekers who pass through another country on the way to the U.S. to first apply for and be denied asylum in that country before they can apply for asylum in the U.S.

That action by the Supreme Court to loosen things up for Trump, came as the result of an emergency application for relief by the Justice Department. The Trump Administration has been astoundingly aggressive about going to the Supreme Court and whining about things that aren’t going their way. (Although maybe not so astounding when you look at Trump’s record as a businessperson: suing everybody all the time.)

The Supreme Court didn’t actually issue a final ruling on the case “Barr v. East Bay Sanctuary”. It’s still waiting to consider that case. What it did was overturn a District court judge who’d blocked Trump’s plans, presumably until the Supreme Court had time to decide. Instead, the Supreme Court said Trump could go right ahead and implement his policy in the meantime.

Some weird things were already happening with this case: for instance just a few days ago, the 9th Circuit Court limited the influence of the stay to California and Arizona, but not Texas and New Mexico. But then the District Court judge reversed that so that it covered the whole border again.

But why exactly did the Supreme Court change it up altogether? We don’t know. In these types of actions, Justices don’t have to say why they did what they did, and they didn’t. And they also don’t have to say who voted for what, and they didn’t. The only explanation came from Justice Sonia Sotomayor, and endorsed by Justice Ruth Bader Ginsburg, who dissented, explaining why the two of them didn’t agree with the Court’s overall decision. Everyone else clammed up.

Writes Justice Sotomayor:

Granting a stay pending appeal should be an ‘extraordinary’ act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.”

So the only thing we know is that those 2 Justices were against letting Trump put his new rules into effect right away, prior to a definitive Supreme Court decision in the case. But that doesn’t necessarily mean 7 Justices were for it. It could’ve only been 5 Justices. Or 6. We don’t know. (The result is the same anyway.) And the fact that this matter was first referred to Justice Elena Kagan, and yet she wrote nothing about the result, means nothing. All it means is that it was her turn to handle appeals of this type. And it’s typical, especially if it’s an important case, for the whole court to then weigh in.

What isn’t typical is for the Supreme Court to overturn a temporary lower court ruling with another temporary ruling. So while Supreme Court Justices offered no explanation, this does offer us a clue. Because as Justice Sotomayor pointed out, the Supreme Court usually would not go to the bother of overturning a ruling it might eventually uphold, in a case it almost certainly will hear, unless Justices think there’s a pretty good chance they’ll overturn it. In fact, District Court Judge Jon Tigar, used the reasoning that he thought the Supreme Court would eventually rule against Trump as part of his reason for suspending Trump’s plan in the first place. It’s “likely invalid because it is inconsistent with the existing asylum laws”, he wrote.

So this could signal the reverse of that. But as we said, there’s no way to know definitively.

About the only thing we do know for sure is the Trump Administration is now green-lighted to deny an asylum claim to anybody who hasn’t already been denied asylum by a country they might pass through on the way. So a family from Honduras could not reach the U.S. border and apply for asylum without first applying for asylum in Mexico, and being rejected there. Which basically means Trump’ll get his wish of the U.S. being “full”, and people who are truly in peril will probably die as a result. (And most of the Central American refugees are Christians, who Trump has vowed to support both inside and outside the U.S., just not in these cases…)

Both Guatemala and Honduras lie on the Caribbean coast, and the Gulf of Mexico isn’t far. But while a sea voyage would “solve” the issue of passing through a 3rd country, it would be much more perilous and much less affordable to most refugees than the already brutal trek through Mexico and maybe another country or two…It’s not like when people from Cuba escaped to Florida, which was dangerous enough: the shortest distance by sea to the U.S. from the Central American countries that have been the source of most refugees is about 1500 miles, making that option tremendously difficult. (Unless, of course, some foreign government really wants to embarrass Trump and the U.S. and starts financing that kind of thing.) But right now this idea is pretty far-fetched. This map’ll give you an idea of what we’re taking about:

Really the only way to go is by land, through Mexico, which under Trump’s new rules automatically makes asylum-seekers ineligible

So let’s finish where we started today:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum.

So what’s the Supreme Court thinking? As we said, we don’t know; there’s no way to know. But we’ve come across some guesses by legal scholars and reporters that we think are work considering: (if you have any other guesses/ideas, let us know).

  • Lawfareblog suggests maybe the administration argued to the Court’s satisfaction that current law gives them some flexibility to put in special rules when asylum applications spike.
  • Or that maybe the Court feels the organizations that brought the suit didn’t have “standing” to do so, that is, couldn’t prove they were directly harmed by Trump’s actions. Lawfare blog points out if this is the case, the ruling will almost certainly create plaintiffs who do have standing, since it’s sure to lead to people being denied asylum at the border.
  • University of Texas law Professor Steve Vladeck has another interesting idea: the Supreme Court is simply getting fed up with injunctions against the federal government.

Since we still truly believe the Supreme Court is not in the business of rewriting laws on behalf of the President that he couldn’t otherwise get passed, there’s only one broad reason we can think of: that the Justices believe the Constitution gives the President some special powers, which would allow him to take the action he’s taking, even with that law on the books. And other laws too. And probably also international treaties regarding refugees that the U.S. is signed on to, which automatically make them law. (Let’s not forget that Attorney General William Barr’s sole purpose in life seems to be getting to a place where the President can do whatever he wants regardless: it’s a big part of the reason Trump hired him for the job).

Remember also, when Chief Justice John Roberts was the deciding vote in the decision to keep the citizenship question Trump wanted off the 2020 Census, it wasn’t because he didn’t think Trump had the right to put the citizenship question on the 2020 Census. It was because of a preponderance of evidence that Trump and his cohorts were lying about why they wanted it on.

So even though what Trump is doing now to refugees goes against the Statue of Liberty, it may not, in the Court’s view, go against the law of the land.

View Our Archived Newsletters