The Court Equivocates on Whom to Deport

Having already undone in its recent rulings both constitutional safeguards and a sizable chunk of America’s historic mission, the right-wing majority on the Supreme Court paused today. Undoing birthright citizenship was a line that three members of that majority—Justices Roberts, Barrett, and Kavanaugh—would not cross, joining with the three liberal justices in affirming both the constitutional guarantee and deep-seated national tradition of citizenship for all born here. (Roberts and Barrett based their decision on the Constitution; Kavanaugh’s concurrence was based on federal law, but not the 14th Amendment.)

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By “America’s historic mission,” I mean that the United States—and for über-originalists, the 13 colonies before 1776—owes its existence to immigrants who came here in flight or in hope or in chains. Yesterday, the Court’s conservatives repudiated much of that heritage by making it far more difficult for those seeking asylum to enter the country and by giving our narcissist-nativist president the power to expel legally admitted migrants to the countries they’d fled due to civil war (Syria) or pervasive violence (Haiti). As Justice Elena Kagan noted her dissent, this required the Court’s conservatives—in particular, Justice Samuel Alito, who authored the majority opinion—to ignore the racism in which Trump’s case for expulsion was drenched.

Had Alito been honest, he could have cited as precedent for bigoted expulsion the refusal of the State Department to permit the ocean liner St. Louis to dock at a U.S. port in June of 1939, thereby compelling its passengers—937 Jewish refugees from Nazi Germany—to return to Europe. The State Department official who rendered that decision, Breckinridge Long, was a notorious antisemite, at a time when the very WASPy State Department was stocked with antisemites, just not as notorious as Long. Alito could have noted that sending roughly 300,000 Haitian refugees back to their beleaguered island wouldn’t mean that all of them would experience the violence and material deprivation that caused them to flee in the first place. And had he thought of citing the St. Louis precedent, he could have noted that only 254 of those 937 passengers actually died in the Holocaust.

This has been a week when the Court’s right-wing majority seemed bent on giving double standards a bad name. Flagrantly, Chief Justice Roberts’s majority opinion giving the president the power to dismiss officials at independent regulatory agencies, though Congress had established such agencies to have bipartisan officials with fixed terms of service, is in complete contradiction to his majority opinion denying the president the power to dismiss officials at the Federal Reserve, which, as my colleague David Dayen noted yesterday, was created by the same session of Congress, with the same fixed-term stipulations, as the law creating one of those regulatory agencies. The only key to this puzzle is that the conservative justices’ support for a “unitary executive”—that is, a nearly all-powerful president—is eclipsed only by their support for the institutions of capital, of which the Fed is one foundational pillar. As for labor, Roberts striking down the 90-year-old decision establishing fixed terms for regulatory agencies’ leaders means that five management-side attorneys may now preside over the National Labor Relations Board, whose mission is supposed to be the defense and promotion of workers’ rights.

But there’s a bit of a double standard in the Court’s backing Trump’s right to expel nonwhite refugees while also maintaining birthright citizenship. The racist nativism of Trump, Stephen Miller, and a majority of MAGAnauts has been at the root of ICE’s raids on families and communities, and had birthright citizenship been disposed of by the Court, those raids could have gone even deeper into immigrant communities and made an even greater mockery of America’s historic mission. By coming down on both sides of the can-stay-vs.-must-go question, the Court reflected both that mission and its nativist opposition.