Note: This post has been updated to include a discussion of what conclusions can (and cannot) be drawn about the justices’ votes on the government’s request.
The Trump administration won a major (if, at least for now, only temporary) victory on immigration today at the Supreme Court. The justices gave the government the go-ahead to enforce a new rule that would bar most immigrants from applying for asylum if they pass through another country – such as Mexico – without seeking asylum there before arriving in the United States. The U.S. Court of Appeals for the 9th Circuit had blocked the government from implementing the new rule in Arizona and California, but now the government can enforce it nationwide while it appeals a decision by a federal judge in California to the 9th Circuit and, if necessary, the Supreme Court. Tonight’s order drew a dissent from Justice Sonia Sotomayor (joined by Justice Ruth Bader Ginsburg); there were no other recorded dissents.
The government came to the Supreme Court seeking emergency relief late last month. The Trump administration wanted to be able to implement an interim rule that it had enacted to address the crisis along the U.S.-Mexico border. U.S. Attorney General William Barr explained that the rule was aimed at reducing the “burdens associated with apprehending and processing hundreds of thousands of” immigrants along the southern border while carving out exceptions to protect immigrants who legitimately fear torture or persecution in their home countries.
After immigrant- and refugee-rights groups challenged the new rule, U.S. District Judge Jon Tigar barred the government from enforcing the rule anywhere in the United States. Tigar concluded that the interim rule “is likely invalid because it is inconsistent with the existing asylum laws,” such as the provision barring asylum for an immigrant who can be removed to another country where he will be safe.
The 9th Circuit narrowed the scope of Tigar’s order. It prohibited the government from enforcing the new rule in the geographic area covered by the 9th Circuit – which would include the U.S.-Mexico border in California and Arizona – but allowed the government to enforce the rule elsewhere in the United States (including along the 1,254-mile border that Mexico shares with Texas). The court of appeals also left open the possibility that the district court could add to the record and once again extend the scope of its order to cover the entire nation.
The government asked the justices to allow it to enforce the rule nationwide while its appeals to the 9th Circuit and, if need be, the Supreme Court itself, are pending. The government stressed that the interim rule “serves important national purposes,” such as protecting “the integrity of our borders,” and “is part of a coordinated and ongoing diplomatic effort regarding the recent surge in migration.”
The challengers pushed back, telling the justices that the government’s rule would work a “tectonic change to U.S. asylum law” by eliminating “virtually all asylum at the southern border, even at ports of entry, for everyone except Mexicans.” And that, they continued, “would not only upend four decades of unbroken practice,” but also “place countless people, including families and unaccompanied children, at grave risk.” The government’s invocation of a crisis at the border, the challengers added, “cannot justify ignoring the laws Congress passed.” And the government’s “claims of urgency” are simply not accurate, because the number of immigrants seeking asylum in June and July of this year actually decreased “significantly.” But even if the situation were as urgent at the government asserts, the challengers maintained, any changes to immigration law to address this problem would be “an issue for Congress, which is well aware of border crossing numbers and the number of asylum seekers.”
The picture changed on September 9, when Tigar entered a new order once again barring the government from enforcing the asylum rule anywhere in the United States. The government returned to the Supreme Court the next day, asking the justices to rule promptly and allow it to enforce the rule nationwide. The government stressed that the ban on enforcement of the rule “greatly impairs the government’s and the public’s interest in maintaining the integrity of the border, in preserving a well-functioning asylum system, and in conducting sensitive diplomatic negotiations.” The government agreed with Tigar that it is important for the entire country to have a consistent immigration policy. But the way to do that, it argued, is for the Supreme Court to take up and resolve conflicts among the courts of appeals, “not for an individual district court to enter a universal injunction the moment it confronts a rule or policy that it views as unlawful.”
Tonight, the Supreme Court gave the government the go-ahead to enforce the rule nationwide while its appeal winds its way through the 9th Circuit and, if necessary, the Supreme Court. Consistent with the court’s ordinary practice when granting or denying temporary relief, the justices did not explain the reasoning behind their decision, nor did they indicate whether all seven of the justices who did not publicly dissent had voted in favor of the stay; all we know is that there were at least five votes – the number required for a stay – for the government. As Greg Stohr of Bloomberg points out, Justice Samuel Alito did not publicly dissent earlier this year when the justices blocked the execution of a Buddhist inmate who wanted to have his spiritual adviser in the execution chamber with him. Six weeks later, however, Alito wrote an opinion in which he indicated that he had in fact dissented in the case and explained why.
In her five-page dissent, Sotomayor suggested that the new rule may be “in significant tension” with federal laws governing immigration. She added that it was “especially concerning” that the new rule “topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in.”
Sotomayor criticized the Supreme Court’s decision to intervene at this stage of the process. “Granting a stay pending appeal should be an ‘extraordinary’ act,” she stressed, but “it appears the Government has treated this exceptional mechanism as a new normal” – and, she lamented, the justices have acquiesced.
This post is also published on SCOTUSblog.