Justices rebuff government on asylum ban

Last week the federal government went to the Supreme Court, asking the justices to block a ruling by a federal judge that bars the Trump administration from denying asylum to immigrants who enter the United States illegally from Mexico. Today the justices turned down the government’s request, which means that the government will not be able to enforce its new policy on asylum while the government appeals to the U.S. Court of Appeals for the 9th Circuit and, if it comes to that, the Supreme Court. Chief Justice John Roberts provided the deciding vote, as four justices – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – indicated that they would have granted the government’s application.

The dispute has its roots in the Trump administration’s announcement, in early November, of a new policy on asylum. Under the old rules, an immigrant in the United States could seek asylum – that is, the right to stay in the United States because she believed she would be persecuted if she returned to her own country – no matter how she came to the United States. But under the new policy, immigrants who cross into the United States illegally from Mexico would be ineligible for asylum.

The policy was aimed at the so-called “caravan” of migrants who were then traveling toward the U.S.-Mexico border. In a statement that accompanied a proclamation from President Donald Trump, the White House suggested that the migrants in the “caravan” would try to enter the United States illegally and then seek asylum, even though most would not ultimately receive it. The immigration system, the statement stressed, “is being overwhelmed by migration” through the U.S.-Mexico border: Immigrants who enter the United States illegally and try to claim asylum are often allowed to stay in the United States while their cases are being considered, making it very difficult to deport them later. But if all immigrants have to enter at designated crossing points, the White House continued, they can be processed more efficiently.

Immigration groups went to court to challenge the new rule, arguing that it clashed with federal immigration laws – which, they say, allow anyone in the United States to apply for asylum, no matter how they got here – and U.S. District Judge Jon Tigar barred the government from enforcing the rule.

Tigar’s ruling prompted Trump to criticize him as an “Obama judge,” and Trump predicted that the government would “win that case in the Supreme Court of the United States.” Trump’s comments elicited a rare public rebuke from Chief Justice John Roberts, who shot back that the federal judiciary does not “have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Last week the Trump administration went to the Supreme Court, asking the justices to put Tigar’s order on hold while it appeals his ruling to the U.S. Court of Appeals for the 9th Circuit and, if necessary, the Supreme Court. The government told the justices that if Tigar’s order stays in place while the appeal moves through the federal courts, it will frustrate “a coordinated effort by the President, the Attorney General, and the Secretary to re-establish sovereign control over the southern border, reduce illegal and dangerous border crossings, and conduct sensitive and ongoing diplomatic negotiations.”

The immigration groups challenging the new rule urged the court to leave Tigar’s order in place, telling the justices that even if there were a crisis – which, they said, there is not – it would be up to Congress, not the president and the executive branch, to make any changes to the U.S. asylum scheme. The groups’ position was bolstered by a somewhat unlikely ally: a group of former senior officials who served in the Department of Justice during the Reagan and Bush administrations, who filed a “friend of the court” brief agreeing with the groups that the court should deny the administration’s request.

Today the Supreme Court turned the government down, in a cursory order that indicated only that the government’s request had been denied. The government would have needed five votes to prevail; the fact that four justices – Thomas, Alito, Gorsuch and Kavanaugh – publicly noted that they would have granted the government’s request presumably means that Roberts joined his four more liberal colleagues in voting to block the government from enforcing its new asylum policy while litigation over its legality plays out. The administration may eventually, as Trump predicted, win in the Supreme Court, but this round went to the challengers, and the eventual fate of the case almost certainly lies in Roberts’ hands.

This post was originally published at Howe on the Court.