Asylum Really Was the Canary in the Coal Mine

Today's SCOTUS decision furthers a worrying trend toward ignoring the rule of law that began with another federal statute

Earlier this term, the Supreme Court issued a handful of emergency rulings that seemed to draw some outer limits around the government’s ability to abuse the rights of immigrants without due process. But now—this week—the Court has issued not just one but two decisions that reached precisely the opposite conclusion—generally without any clear explanation why.

On Monday, the nation’s highest court handed down on an emergency ruling that theoretically would allow the administration to start deporting people to third countries without notice (absent some other basis for relief that the plaintiffs can devise). And now—today—the Court has decreed that lower courts may not issue injunctions granting nationwide relief for constitutional violations.

Neither of these decisions actually overrules the statutory and constitutional rights of immigrants (and the children of immigrants) at issue in each case. But at the same time, both constitute procedural work-arounds that effectively permit the government to ignore these rights in practice.

It seems there are two ways for the Supreme Court to undermine the rule of law: one is to overturn existing precedents and write constitutional violations into law (which we know they’ve also done at times). But the other—perhaps even more insidious way—is the one they appear to be pursuing this week: simply to let these rights lapse through judicial indifference and an unwillingness to enforce them against the executive.

This may seem unprecedented—but it’s not. It’s part of a broader pattern. The White House and the judiciary have already dismantled another major federal statutory right for immigrants and noncitizens: namely, the right to asylum. In this sense, asylum was the tip of the spear. It was the place where the government first tested out its powers to ignore federally-granted rights—and succeeded.

But first, let’s break down what’s actually at stake in each of these decisions:

The Birthright Citizenship Case

Today’s ruling in Trump v. Casa was not a final decision on the merits of Trump’s order banning birthright citizenship for the children of undocumented immigrants and temporary visitors. Indeed—at the oral argument in this case—no justice seemed remotely inclined to defend the government’s position on the underlying executive order. After all, the White House’s order violates longstanding precedent and any commonsense reading of the text of the 14th Amendment.

But what they have done will nonetheless allow the government to proceed with trying to strip the birthright citizenship of some people born in this country (and hence properly citizens under the 14th amendment)—unless the latter can all obtain relief separately through one-off or class-based litigation. The justices accomplished this by dramatically narrowing the remedy of nationwide injunctions.

A nationwide injunction should not actually be a controversial thing. All it really means is that if the federal judiciary concludes that a government action is unconstitutional, it is unconstitutional for everyone—not just for the people who happened to bring the case.

If the government issued an order saying “No one can write blogs,” and I brought suit alleging this violated my First Amendment rights—it is not absurd to think that the federal court would have an inherent equitable power to say that the government’s order was unconstitutional not just with respect to me, but to anyone in the country.

This power of the courts is reviewable and limited. Typically, these injunctions are issued at first only on a preliminary basis, to try to preserve the status quo while the court decides the merits of the case. (In this case, that just meant the government couldn’t start denying citizenship to children born here until federal courts decided whether that was constitutional or not. And spoiler alert: it almost certainly wouldn't be.) They can also be stayed by higher courts (or by the district court itself), if they find it was wrongfully granted.

So, by limiting the availability of nationwide injunctions, the Court is effectively saying that—no matter how grossly and blatantly unconstitutional the government’s action may be—a district court will have no power to stop it from going into effect nationwide. Nor was the government willing to commit at oral argument to respecting the precedents of each circuit court within its regional jurisdiction.

And so—this raised the specter that Justice Kagan described at oral argument: namely, that each set of people affected by this order might have to sue separately in each district court, get certified as a class, and win their case for relief in all 94 federal districts one-by-one.

And indeed—they might actually prevail in every single district court where they bring suit. That’s how terrible and baseless the White House’s legal position is. But this raises yet another specter—which Kagan also laid out in the oral argument—namely, that the matter might never reach the Supreme Court for final resolution, because plaintiffs would have no basis to appeal if they keep winning—and the government might choose not to ask for certiorari from SCOTUS because they know they would ultimately lose.

And that, my friends, is how you make birthright citizenship a dead letter in practice—without ever actually explicitly ruling that it is overturned.

The Third Country Deportations Case

Earlier this week, SCOTUS pulled a similar maneuver with respect to the Convention Against Torture. The district court in that case had sought to bar the government from deporting people to countries they are not actually from, without first offering them notice as to where they were being taken or giving them a reasonable time period to contest their removal on grounds that they face a fear of torture in the destination country.

And remember—this fear of torture is not abstract. The district court’s order applied to things like the government’s attempts to remove people to El Salvador’s CECOT prison—where several hundred innocent people are still being confined on Trump’s orders to this day—at the expense of us all as U.S. taxpayers—without charge, trial, conviction, or any chance to contest their imprisonment.

The Trump administration has also been actively trying to deport people to South Sudan—where there is no functioning government; and to Libya—a country where migrants are known to be confined in sprawling detention complexes, where they have been subject to beatings, torture, human trafficking, and enslavement. The district judge’s order blocked these deportations as well—until SCOTUS intervened to lift the order.

Understand: the district judge here was not blocking these deportations out of the pure goodness of his heart. He wasn’t freelancing as a human rights crusader. He was simply applying federal statute. The U.S. has incorporated the provisions of the UN Convention Against Torture into federal domestic law. This means the government cannot deport people to places where they face a likelihood of torture.

And, since people have a statutory right not to be removed to such places, it is no great stretch to believe that they have a statutory right to be notified of their pending removal and to have some chance to contest their deportation—to show that they face a risk of torture, that is—before it happens. That’s all the district court order said.

Why did the Supreme Court overturn this order? That’s the thing—they didn’t tell us. Their ruling on the Trump administration’s emergency order was once again not a final decision on their merits. So they didn’t have to explain. They just temporarily stayed the lower court’s injunction from going into effect. But what this means in practice is (barring some other avenue of relief for plaintiffs), the government can resume deporting people to places like South Sudan, El Salvador, and Libya.

So, as with birthright citizenship, the Supreme Court just effectively nullified immigrants’ rights under the UN Convention Against Torture, without expressly nullifying them. The law is still on the books. In theory, the laws of Congress still prohibit the government from removing people to places where they face a likelihood of torture. But the Supreme Court has decided not to allow a lower court judge to enforce that law.

And that, in turn, is how you make the right not to be tortured into a dead letter.

And the Right to Asylum?

All of which shocks the conscience—but it shouldn’t exactly surprise us. Because the government and courts have already effectively nullified another statutory right for immigrants that exists just as patently on the books of federal law: the right to seek asylum.

The Convention Against Torture rights at issue in the third country removals case, after all—are really just supposed to be the last-ditch, worst-case, bottom-of-the-barrel protection to prevent someone from being sent directly into the clutches of a torturer. This statute confers only a limited right to “withholding of removal”—that is, the right not to be sent to the specific place where you face a likelihood of torture—rather than a right to stay in the United States.

People also—in theory—have a more robust right under federal law to not only avoid deportation to torture—but also to seek a right to stay long-term in the United States and work with legal authorization if they face a broader risk of persecution on a set of protected grounds. That’s asylum.

I’m not making this up. Remember asylum? People used to talk about it a lot, before we all decided about a year ago to pretend it no longer exists.

But it’s still there in the U.S. Code. You can look it up! It was never repealed.

The federal law of asylum still reads: “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 […], irrespective of such alien's status, may apply for asylum in accordance with this section[.]”

Why—you might be asking—has this law not come up in any of the litigation surrounding the third country deportations or the Alien Enemies Act deportations to El Salvador?

If you ever learn the answer, please inform me. But the sequence of events I can piece together goes something like this:

First, the Biden administration issued a regulation last summer declaring that people who cross the border outside ports of entry would no longer be eligible for asylum, under most circumstances (even though the asylum statute—read it above—says people may apply for the status “whether or not at a designated port of arrival”).

Groups like the ACLU swiftly challenged this policy in court, arguing that it violates the statutory right to seek asylum. But the federal court never ruled on the case.

Then, Trump became president. He expanded Biden’s rule to essentially render people ineligible for asylum even if they approach ports of entry. (He did this by revoking people’s ability to request an asylum hearing appointment through the CBP One App that Biden had created.) In other words, Trump essentially just stopped hearing asylum claims at the border by executive fiat.

Groups like the ACLU again challenged this policy, and other Trump executive orders barring asylum claims under alternative legal theories. Once again, the courts have so far simply not ruled on the issue.

The furthest any court went in enforcing statutory rights for asylum-seekers was this limited ruling about Convention Against Torture rights with respect to third countries. So, it was an incredibly limited ruling.

But the White House has proceeded to attack it viciously as judicial overreach nonetheless—and now the Supreme Court has effectively endorsed the administration’s narrative—no matter how patently at odds it is with the actual letter of U.S. law.

And that, my friends, is how the White House and the courts—under two successive administrations—effectively made the right to seek asylum a dead letter too.

“The multitude saw why she wore the bandage”

This same Supreme Court has not in other circumstances been particularly shy about barring executive action. Just two years ago, the same 6-judge conservative majority upheld a nationwide injunction barring the Biden administration from granting student loan relief, to cite one example.

But today, when the children of immigrants, born in this country, ask for protection of their constitutional rights, the Court suddenly decides that nationwide injunctions are no longer to be allowed.

Or, when noncitizens ask for their statutory rights to be upheld not to be deported to places where they face torture or persecution—the Court suddenly decides the government must be permitted to deny them notice and bundle them onto planes in the dead of night to be abducted to the migrant detention camps of Libya, the concentration camps of El Salvador, or the lawless deserts of South Sudan.

The Wall Street Journal editorial page bristled last week at Justice Ketanji Brown Jackson’s rather polite suggestion in a recent dissent that the conservative majority risked creating the (false, in her view) impression in their recent decisions that they were more solicitous of the legal rights of the rich than of the poor.

But indeed, it’s hard not to be struck by the disparity between the Court’s high-profile opinions affecting the rights of corporations and wealthy individuals not to be regulated—and their latest actions affecting the rights of the world’s outcast and despised—people with no ability to protect themselves through the political process (often because do not have the right to vote); who cannot afford a lawyer; who are consigned to the nethermost reaches of the world’s illicit underground economies, where they may be trafficked and enslaved after being abducted and confined to a Libyan dungeon...

Student loan relief? That was a bridge too far, in the view of this Court. That was an abuse of federal power. Sending people to be tortured and enslaved, or denied their right to citizenship under an amendment guaranteeing basic human rights that the country fought a civil war to achieve? Nah, that’s not the sort of thing the courts should involve themselves in—in their view.

I saw a beautiful woman with bandaged eyes

Standing on the steps of a marble temple.

Great multitudes passed in front of her,

Lifting their faces to her imploringly.

In her left hand she held a sword.

She was brandishing the sword,

Sometimes striking a child, again a laborer,

Again a slinking woman, again a lunatic.

In her right hand she held a scale;

Into the scale pieces of gold were tossed

By those who dodged the strokes of the sword—

—as the great poet and social critic Edgar Lee Masters once depicted the personification of Justice in America.

So too, today’s Supreme Court raises its sword to strike the laborer, the dispossessed migrant, the sojourner, the wanderer, the refugee, the asylum-seeker—the son of man with nowhere to lay his head.

It allows its scales to be weighted by the coin of the wealthy and powerful. It lets the government put its thumb on the scale—buying permission to go on deporting people and stripping them of constitutional rights regardless of the law.

Then a youth wearing a red cap

Leaped to her side and snatched away the bandage.

And lo, the lashes had been eaten away

From the oozy eye-lids;

The eye-balls were seared with a milky mucus;

The madness of a dying soul

Was written on her face;

But the multitude saw why she wore the bandage."