The Supreme Court on Wednesday cleared the way for President Trump and his administration to enforce a ban on nearly all asylum seekers arriving at the southern border.
In a one-paragraph order, the justices by a 7-2 vote granted an emergency appeal from Trump administration lawyers and set aside decisions from judges in California who had blocked the president’s new rule from taking effect.
While it is not a final ruling on the issue, the decision is nonetheless a major victory for Trump and his effort to restrict immigration because it allows the asylum ban to be enforced at the southern border while the dispute wends its way through the courts. That potentially could last for the remainder of Trump’s current term in office.
The president praised the decision, tweeting Wednesday night, “BIG United States Supreme Court WIN for the Border on Asylum!”
Wednesday’s order is further evidence that Trump is changing how the Supreme Court works. Prior to 2017, it was rare for federal judges to issue nationwide orders that blocked actions of the federal government. And it was also rare for the high court to intervene in such pending cases with emergency orders, rather than holding oral arguments and releasing written decisions.
Justice Sonia Sotomayor dissented along with Justice Ruth Bader Ginsburg.
“Once again the executive branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution,” Sotomayor wrote. “Granting a stay pending appeal should be an extraordinary act. Unfortunately, it appears the government has treated this exception as the new normal.”
She added, “Not long ago, the court resisted the shortcut the government now invites. I regret that my colleagues have not exercised the same restraint here.”
It is the second time in recent weeks that the Trump administration has succeeded by going directly to the high court to challenge an injunction handed down by judges in California.
In late July, the justices cleared the way by a 5-4 vote for Trump to spend $2.5 billion from the military budget to pay for border wall construction. Congress had refused to appropriate the money, and a federal judge in Oakland and the U.S. 9th Circuit Court of Appeals in San Francisco blocked the transfer.
Trump has chafed at the asylum law and its promise of protection for foreigners who are fleeing persecution and violence in their homeland. The law allows those who arrive at the border to ask for asylum and to have their claims heard by an immigration judge.
But on July 16, the administration announced that migrants would be deemed ineligible for asylum if they had not sought and been denied such legal protection in Mexico. Officials said the fleeing migrants should be required to seek asylum in the first safe country. The practical impact of the rule would be to deny asylum to nearly all migrants from Central America who travel by the thousands through Mexico to reach the United States.
Advocates for the migrants say many are fleeing violence in their home countries. El Salvador, Honduras and Guatemala, the sources of most asylum seekers in the last few years, have some of the world’s highest homicide rates.
Administration officials, however, say that many of the migrants do not meet the legal standard for asylum: a reasonable fear that they will face persecution at home because of their beliefs or membership in a specific ethnic or social group. Instead, they say, smugglers have coached migrants to claim persecution and obtain a court hearing in the United States. Cutting short the asylum system, they argue, will remove the ability of smuggling gangs to manipulate the process.
Lawyers for the American Civil Liberties Union sued on behalf of four migrant aid groups, alleging that the new rule conflicted with a 1980 law and its open-door policy for asylum seekers.
U.S. District Judge Jon S. Tigar in San Francisco agreed and issued a nationwide injunction that barred enforcement of the new rule. The 9th Circuit Court upheld this order, but restricted its reach to California and Arizona.
U.S. Solicitor Gen. Noel Francisco filed an emergency appeal with the Supreme Court in late August in the case of Barr vs. East Bay Sanctuary Covenant. He urged the justices to lift the injunction and allow the new rule to take effect immediately. Doing so would “alleviate a crushing burden on the U.S. asylum system,” he said.
ACLU lawyers called the ban “a blatant end-run” around the law and said the court should not endorse “an expansive view of executive authority to rewrite the statute.”
“The stakes are enormous,” said Lee Gelernt, the ACLU lawyer who had urged the courts to block the asylum ban. “If the ban can be applied now, it will effectively mean the end of the asylum process Congress has maintained at the southern border for four decades, since it first enacted the nation’s asylum laws.”
But he also called Wednesday’s order “just a temporary step,” saying, “We’re hopeful we will prevail at the end of the day.”
It will probably be at least a year or two before the Supreme Court takes up the case and makes a final ruling on the legality of Trump’s order.