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Yesterday, the Supreme Court granted a “extraordinary” request by the Trump administration to allow the administration to implement a regulation that Justice Sotomayor describes as, “forbid[ding] almost all Central Americans—even unaccompanied children—to apply for asylum in the United States if they enter or seek to enter through the southern border, unless they were first denied asylum in Mexico or another third country.”
This new regulation, as Justice Sotomayor states, “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.” Yet, the Supreme Court acquiesced in the Trump administration’s “extraordinary” request which, as Justice Sotomayor explains, “risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency.”
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “This Supreme Court decision is devastating to thousands of Central Americans and others seeking safety under well-established U.S. law. At the same time, as Justice Sotomayor, joined by Justice Ginsburg, explained in her dissenting opinion, it is becoming more and more clear that this Supreme Court is acquiescing to Trump’s political requests rather than protecting its founding principles of independence as a third branch of government, governed by the rule of law, and impartial to the whims of politics. If the Court’s own justices are questioning the impartiality of decisions by this Court, how is the American public supposed to trust that the next big immigration decision by this Court will be one that is made free of politics and pressure from this administration?”
David Leopold, Counsel to DHS Watch, Chair of Immigration at Ulmer & Berne and former President of the American Immigration Lawyers Association, said: “Justice Sotomayor’s dissenting opinion underscores the damage the Supreme Court has done by permitting Trump’s legally suspect asylum restrictions to go into effect. The resulting human carnage is real and irreparable. The question now is where is Justice Roberts? Will he continue to bury his head in the sand as Trump usurps the Supreme Court as part of his administration? Or will the Chief Justice lead the Court in defense of an independent judiciary and jealously guard the rule of law?
Founding Principles of the Supreme Court
As stated on the U.S. Supreme Court website, the Founding Fathers had a clear vision for the Court enshrined in the words above the entrance, “Equal Justice Under Law.” The Court’s website explains,
[Founding Father James] Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
Yesterday’s Asylum Decision Suggests This Supreme Court Has Deviated From Founding Principles
In a short but powerful dissenting opinion, Justice Sotomayor, joined by Justice Ginsburg, succinctly describes how this Supreme Court has departed from its role as an impartial arbiter of the law free of the whims of politics. Key passages of the dissenting opinion are quoted below.
[T]he Government asks this Court to intervene and to stay the preliminary decisions below. This is an extraordinary request. Unfortunately, the Court acquiesces.
In sum, 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. Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here.
By granting a stay, the Court simultaneously lags behind and jumps ahead of the courts below. And in doing so, the Court sidesteps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rulemaking process. I fear that the Court’s precipitous action today risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency.
The lower courts’ decisions warrant respect. A stay pending appeal is “extraordinary” relief.
The District Court found that the rule was likely unlawful for at least three reasons.
The rule here may be, as the District Court concluded, in significant tension with the asylum statute. It may also be arbitrary and capricious for failing to engage with the record evidence contradicting its conclusions. It is especially concerning, moreover, that the rule the Government promulgated 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.