Immigrant groups sought relief from Trump in court. It isn’t working.

Why We Wrote This

Will the judiciary act as a check on the executive branch, or will it offer deference on national security? That’s been the question on immigration since the Trump administration’s first travel ban. It’s being answered by the Supreme Court.

Fernando Llano/AP
A U.S. border officer checks the documents of migrants seeking to apply for asylum in the U.S. as they depart Nuevo Laredo, Mexico, on Sept. 17, 2019. Tent courtrooms opened Monday in two Texas border cities to help process thousands of migrants who are being forced by the Trump administration to wait in Mexico for asylum requests to be considered.

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When the Supreme Court allowed the administration’s new restrictive rule on asylum-seekers to stand while the legal battle over it winds through the lower courts, court watchers took notice.

The rule effectively bans almost all migrants on the southern border from applying for asylum. While the high court’s decision is temporary, it may well be a sign of things to come, says Theresa Cardinal Brown, an immigration expert at the Bipartisan Policy Center in Washington.

The fact that the Supreme Court “was willing to do this and jump into the middle of the process does not bode well for future litigation efforts against the administration,” writes Ms. Brown. “In the first two years, advocates relied on the courts to be a check, but that strategy now ... seems to not be working.”

In fact, the administration has gone to the Supreme Court for extraordinary relief with “unprecedented frequency,” according to an analysis by law professor Steven Vladeck cited by Justice Sonia Sotomayor. Notably, the court has “largely acquiesced.”

This is a break from the past, where the court has more typically refrained from interfering in order to see how lower courts work through new legal questions.

Since President Donald Trump took office vowing to build the wall, immigrant advocacy groups have been pursuing a strategy heavily reliant on the courts – fighting the administration’s restrictive policies on legal immigration through lawsuits and often finding success.

But some immigration observers say a moment of truth has arrived: The courts may not prove to be the check on the president that rights groups have hoped.

Last week, the Supreme Court allowed the administration’s new restrictive rule on asylum-seekers to stand while the legal battle over it winds through the lower courts. The rule effectively bans almost all migrants on the southern border from applying for asylum. While the high court’s decision is temporary, it may well be a sign of things to come, putting additional important cases, such as that of young immigrant “Dreamers,” at risk, says Theresa Cardinal Brown, an immigration expert at the Bipartisan Policy Center in Washington.

The fact that the Supreme Court “was willing to do this and jump into the middle of the process does not bode well for future litigation efforts against the administration,” writes Ms. Brown in an email. “In the first two years, advocates relied on the courts to be a check, but that strategy now ... seems to not be working.”

  • Last year, the Supreme Court upheld President Trump’s modified “travel ban” that restricts entry from seven countries. The 5-4 ruling fell along party lines of justices appointed by Republican presidents and those appointed by Democrats. It was a significant win for the president, supporting his executive powers to protect national security under immigration law.
  • In July, the high court lifted a lower court’s injunction against using Pentagon spending for a border wall, and allowed it to go ahead. Again, the Republican-appointed majority on the bench backed the decision – though, like last week’s asylum decision, it was another one that allows a policy to stay in place until it’s gone through the court system.
  • And in May, a panel of the 9th Circuit Court of Appeals in San Francisco ruled that the administration, for now, may go ahead with its “remain in Mexico” policy. The policy requires asylum-seekers to stay in Mexico during their proceedings, rather than wait for resolution in the United States.

Partly at work here are President Trump’s and Republican Senate Majority Leader Mitch McConnell’s concerted efforts to quickly fill federal court vacancies with conservative judges – most significantly, the Supreme Court, says Carl Tobias, who tracks judicial appointments and teaches at the law school of the University of Richmond in Virginia.

The president has set a record for the most appellate judges appointed at this time in a presidency, says Professor Tobias – 43 as of Sept. 1. “The biggest impact has been at the Supreme Court, with two new conservative justices,” he adds. 

In November, the high court will hear oral arguments about the legality of the Deferred Action for Childhood Arrivals program, which allows people brought to the United States illegally as children to work and study without fear of deportation. The program was begun under President Barack Obama; the Trump administration moved to end it in 2017. The case will decide the future of between 690,000 and 800,000 young men and women. Given the court’s actions so far, “the Dreamers are definitely at risk,” says Ms. Brown, in a follow-up interview. “So are the TPS holders,” she adds, speaking of more than 300,000 people with temporary protected status from 10 countries affected by war or natural disaster. 

Setting new precedents?

“There’s got to be a moment when immigration advocates have to rethink whether or not going to court on everything is the right strategy,” Ms. Brown says. They’re taking a risk, she explains, because the Supreme Court may well make decisions that set precedent on immigration matters that have been left unsettled for a long time. 

True, there’s always a risk when filing lawsuits, says Lee Gelernt, who is leading the American Civil Liberties Union in its fight against the new asylum rule on behalf of migrants represented by the ACLU. “My own feeling is that the court takes each case on its own, and that it’s difficult to extrapolate from these temporary decisions.”

The ACLU will not stop fighting in the courts he says, pointing to some “significant” victories in the lower courts, including a ruling by a federal judge ordering the reunification of migrant parents and children separated by the Trump administration. He emphasizes that last week’s ruling was a “temporary decision,” with no opinion issued. “We’re going to continue fighting the case.”

But Stephen Vladeck, a law professor at the University of Texas, sees a warning in the aggressive pattern of the administration to fight lower-court injunctions at the Supreme Court. Justice Sonia Sotomayor referenced Professor Vladeck’s analysis in her dissent to the court’s asylum decision last week.

The law professor writes in a July abstract for the Harvard Law Review that the administration has gone to the Supreme Court for emergency or extraordinary relief with “unprecedented frequency.” Notably, the court has “largely acquiesced.”

This is a break from the past, where the court has more typically refrained from interfering in order to see how lower courts work through new legal questions.

While the most common explanation for the increase in requests for relief might be the rise in “nationwide” injunctions, Professor Vladeck writes, “it may have more to do with subtle (but more broadly significant) shifts in the Supreme Court’s procedural doctrine.” A majority of the court now “appears to believe” that the government suffers irreparable harm whenever a lower court blocks a statute or policy, and they are “calibrating” their decisions according to what they expect the outcome to be, if and when the case is decided by the court on the merits.

Out-of-court strategies

While Mr. Gelernt is fighting the administration on a policy level, Patricia Ortiz, director of Esperanza Immigrant Rights Project in Los Angeles, is trying to adjust to the new asylum rule on the ground.

“We’re really having to rethink our strategy and what we’re going to do,” she says. One possibility: Pursue what’s known as “withholding of removal.” If granted that status, an immigrant will not be removed, but unlike asylum-seekers, there is no path to citizenship. The threshold of proof of persecution is also much higher.

Ms. Ortiz, too, questions the reliability of the courts as a check on the president. “There’s definitely a trend toward more restrictive tendencies on immigration, and so, based on what we’ve seen in the last year or so, I don’t know that we can really rely on the courts as much as we thought we could.” She’s also not optimistic about the Supreme Court, and sees last week’s decision as a “hint of what’s to come.”

But what, she asks, is the alternative? Congress has proven incapable of passing immigration reform.

Mr. Gelernt points to a multipronged approach: through the courts, yes, but also continuing to educate the public (as it did on family separation) and pressing Congress for hearings. In one poll, a Harvard CAPS/Harris survey released exclusively to The Hill in July, immigration has overtaken health care as the top issue for voters.

And the election will not create a greater sense of certainty, observers say. If a Democratic candidate were to win in 2020 and reverse President Trump’s executive orders, that will only create another set of temporary policies to be potentially reversed by another future president – particularly if the high court favors such executive powers.

“None of this is permanent immigration policy,” says Ms. Brown, of the Bipartisan Policy Center. “It should not be done by the executive branch, swinging 180 degrees between administrations.” But absent Congress taking back its authority and passing new immigration laws, the courts will fill that void – quite possibly bolstering executive power.

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