The Supreme Court Enables Trump’s Cruel Immigration Agenda

“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 2src1src earthquake, and some sixty-one hundred refugees from Syria, during the repressive regime of Bashar al-Assad. The 199src 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 2src18 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.