Chief Justice John Roberts stands with U.S. Supreme Court Justices in the House chamber prior to the 2016 State of the Union address. (photo: Reuters)
26 December 18
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 in accordance with this section or, where applicable, section 1225(b) of this title.
– US asylum law, statement of scope (8 US Code 1158 (a)(1)
nited
States asylum law, duly enacted by Congress and the president of the
United States, has remained unchanged and largely unchallenged since
2008. The clearly stated intent of the law is to allow any
alien physically present in the US to apply for asylum, in a legal
process consistent with both international and federal law. The unstated
subtext of the law is that the US should be a compassionate country
where people fleeing oppression, persecution, and violence may find a
safe haven.
This one of America’s founding myths, that we are a
country of immigrants, in the best sense of the word. Despite glaring
violations, the myth has served as the basis of consensus national
policy until very recently. And it has been the settled law of the land.
On November 1, 2018, in a provocative and less than honest speech on immigration,
President Trump set out on a campaign to change all that, as he
challenged the law of the land and the constitutional process by which
law is created. Masking the constitutional challenge, Trump distracted
attention with threats that US military would kill asylum seekers if
they threw stones. Despite his deliberate demagoguery, Trump’s extreme
language failed to have a discernible effect on the fall election.
On November 9, in the latest strike in his unrelenting war on immigrants, Trump issued a proclamation
asserting that he, as president, had the unilateral authority to change
any law passed by Congress – in this case, the asylum law. The
proclamation implemented a 78-page “interim final rule”
issued the previous day by the US Departments of Justice and Homeland
Security. The Washington Post, adopting Trump’s false framing,
disingenuously and falsely headlined this move as “Trump administration
tightens immigration asylum rules as caravans continue to push for US
border.” NBC News had a somewhat different take on the interim final
rule:
The Trump administration expects to be sued over the draconian new immigration plan it unveiled Thursday afternoon, say two senior administration officials with knowledge of the discussions — but with Justice Brett Kavanaugh now on the Supreme Court, it expects to win.
Lawsuits followed, as expected. In San Francisco, the
ACLU (American Civil Liberties Union) promptly filed suit on behalf of
four organizations involved with immigrant rights.
On November 20, US District Judge Jon Tigar issued a temporary restraining order
that barred the administration from implementing the interim final rule
until it had been fully litigated. In his ruling, Judge Tigar wrote:
The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA [Immigration and Nationality Act of 1965] and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.
The White House responded by attacking the judge for being appointed by President Obama. The White House also issued a statement falsely describing reality
on the border and falsely representing the president’s authority. The
White House appealed to the full 9th US Circuit Court of Appeals to stay
Judge Tigar’s ruling. If granted, the stay would allow the White House
to move forward with the interim final rule.
On December 8, a three-judge panel of the 9th Circuit upheld Judge Tigar and rejected the White House request. Writing for the unanimous court in a 65-page decision,
Judge Jay Bybee (previously well known in the Bush administration for
writing memos justifying torture) began by reiterating the legal and
historical baseline for considering applications for asylum in the US:
For more than 60 years, our country has agreed, by treaty, to accept refugees. In 1980, Congress codified our obligation to receive persons who are “unable or unwilling to return to” their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Congress prescribed a mechanism for these refugees to apply for asylum and said that we would accept applications from any alien “physically present in the United States or who arrives in the United States whether or not at a designated port of arrival … irrespective of such alien’s status. [Emphasis in original]
Judge Tigar’s temporary restraining order lasted only
until December 19, when he held a hearing on the White House appeal to
let the interim final rule go into effect.
After hearing argument from
both sides, Judge Tigar concluded that “Plaintiffs [ACLU] have
established an overwhelming likelihood that the new rule barring asylum
is invalid.” The judge then granted a preliminary injunction barring the White House from implementing unlawful restrictions on asylum seekers.
The White House had already applied to the Supreme
Court for a stay of Judge Tigar’s restraining order and allow the new
rules to go forward. The Supreme Court rejected the request without
comment on a 5-4 vote. The entire Supreme Court order reads:
The application for stay presented to Justice Kagan and by her referred to the Court is denied. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application for stay.
It’s not really news that Justices Thomas, Alito,
Gorsuch, and Kavanaugh have no objection to the president rewriting
Congressional legislation on his own, without review even by the
judiciary. These men are all well known for their shaky adherence to
constitutional law when the opportunity to support authoritarianism
presents itself.
Nor is it really news that Justices Kagan, Ginsberg, Sotomayor, and Breyer come down in support of the rule of law.
The news – and it really looks like good news – is
that Chief Justice John G. Roberts is the swing vote here in opposition
to legislation by presidential diktat. As NBC News reported, the White
House expected to win this in the Supreme Court. We should be grateful
that their expectation was wrong, at least for now. The asylum case is
far from over. The White House is almost surely going to go on trying to
create a presidential dictatorship. But for now, we’re still one
justice shy of the end of constitutional government.
William M. Boardman has over 40 years experience
in theatre, radio, TV, print journalism, and non-fiction, including 20
years in the Vermont judiciary. He has received honors from Writers
Guild of America, Corporation for Public Broadcasting, Vermont Life
magazine, and an Emmy Award nomination from the Academy of Television
Arts and Sciences.
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