Rogelio V. Solis/AP Photo
Supreme Court Associate Justice Sonia Sotomayor speaks at the Mississippi Book Festival, August 2019.
President Trump and his Department of Justice have used “every tool in the toolbox”—to use immigration official Ken Cuccinelli’s words—to keep migrants and asylum seekers out of the United States. The latest effort, a rule that bars virtually all Central American migrants from seeking asylum in the U.S., was first made public on July 15. It requires anyone seeking asylum in the U.S. to first apply for (and be denied) asylum in another eligible country before being eligible in the U.S.
Immigrant rights groups immediately sued, and the case wound its way through the courts. First, a federal district court granted a nationwide stay. This prevented the rule from taking effect until the court decided on the merits of the case. Later, a federal appeals court decided that the injunction should only hold circuit-wide. Then, Solicitor General Noel J. Francisco submitted an emergency application to the Supreme Court seeking a stay of the earlier temporary injunction.
On September 11, the Supreme Court granted Francisco’s request, issuing a stay of the lower court’s preliminary injunction. But to Justice Sonia Sotomayor, to even ask the Court to do this “was an extraordinary request,” as she wrote in her dissent, in which only Justice Ruth Bader Ginsburg joined. Sotomayor argued that the Trump administration did not meet the required burden of proof for the Supreme Court to justify weighing in.
But Sotomayor also took issue with a broader trend. The Trump administration has frequently sought to appeal directly to the highest court in the land—and its five friendly faces—rather than follow typical procedure through the various lower courts. The Supreme Court, Sotomayor argued, is setting a dangerous precedent by acquiescing to this request for a stay. Instead of heeding a lower court’s unfavorable ruling, this administration heads to the Supreme Court with confidence.
In a forthcoming article for the Harvard Law Review, Stephen Vladeck calculated how much more frequently the Trump administration has gone to the Supreme Court than its predecessors. Vladeck documents that the administration has applied for “at least 20 stays of lower-court rulings,” filed “nine petitions for writs of certiorari before judgment,” and sought writs of mandamus against three different district judges in the first two and half years of his administration. In contrast, over the last 16 years, administrations have sought just “eight stays from the Justices; four writs of certiorari before judgment; and zero writs of mandamus.” In addition to asserting that the solicitor general’s unique access to the Court makes his abuses more concerning, Vladek argues that the Justices themselves have largely become complicit.
“The lower courts’ decisions warrant respect,” Sotomayor wrote in her dissent. Her colleagues’ ruling was not just a decision affecting “some of the most vulnerable people in the Western Hemisphere,” she argued, but also enabled the administration “to implement a rule that bypassed the ordinary rulemaking process.” By permitting the virtual ban on asylum seekers to take effect, the Court also allowed the administration to overturn a “forty-year-long status quo” in asylum law and the protection this country has historically offered, as the ACLU argued in their response.
“I fear that the Court’s precipitous action today risks undermining the inter-branch governmental processes that encourage deliberation, public participation, and transparency,” Sotomayor wrote. Expressing regret that her colleagues did not see the import of their decision, she continued, “Not long ago, the Court resisted the shortcut the [administration] now invites.”
The district court granted the initial nationwide stay and gave three reasons for its decision, which Sotomayor explained in her dissent: The Trump administration’s asylum rule was very likely “inconsistent with the asylum statute”; the administration had bypassed normal rulemaking procedures (as it has done with other unpopular immigration rules); and the administration’s own argument for the rule was “so poorly reasoned” that it “was likely arbitrary and capricious.” The Ninth Circuit appellate court denied the administration’s request to fully reverse the district court’s decision because it reasoned that the administration was unlikely to succeed on the merits of the issue. Then, on September 9, the district court reinstated its nationwide ban, overturning the Ninth Circuit’s narrowed opinion based on new facts in the case.
The rule stems from an anti-immigrant policy that the Trump administration has been unable to put into play: Safe third country agreements. First proposed with Guatemala, then with Mexico, and more recently floated with Honduras, these bilateral agreements would in effect bar virtually all asylum seekers traveling from Central America and anyone else who follows a similar route from even reaching the U.S. The agreements work by requiring applications for asylum in the first “safe” country they reach. Because of the migration patterns in Central America, this would have the effect of forcing asylum seekers to file in Mexico or Guatemala before applying in the U.S. But by implementing its new rule instead, the Trump administration can bypass the need for bilateral agreements.
Mexico’s asylum system is already overburdened, and Guatemala’s asylum office has only seven staff members, hardly enough to process the many thousands making their way north, let alone provide the shelter and safety that migrants and asylum seekers need.
The July rule came after months of pressure on Guatemala, and to some extent Mexico, to sign safe third country agreements. In Guatemala, such a deal is deeply unpopular and the country’s highest court ruled that an agreement needs approval from the president and the legislature. Mexico, for its part, has also continued to refuse such an agreement
The Trump administration has also implemented the Migrant Protection Protocols, informally known as the “Remain in Mexico” policy, which is in effect despite a legal challenge that has yet to be formally heard. Under MPP, once an asylum seeker files in the U.S., they are arbitrarily sent to a U.S. detention center or back across the border to wait in Mexico for their hearing, sometimes for months. The “metering” policy, which allows only a certain number of people to request asylum at a port of entry per day, has also delayed the asylum process. MPP has left migrants essentially homeless and unemployed in a kind of quasi-legal purgatory. It has also left Mexico struggling to provide resources and even shelter to the more than 40,000 people waiting. There’s no system to track asylum seekers once they’re in Mexico, and even fewer protections to keep people safe.
The effect of the Supreme Court’s stay is to continue Trump’s virtual ban on asylum seekers—with all of the human misery it inflicts—though the rule has yet to be tested on its merits.
Sotomayor, citing Vladek’s law review article, wrote that the high court’s granting a stay of the lower court’s ruling should be an extraordinary act, but “it appears the Government [administration] has treated this exceptional mechanism as a new normal. Historically, the Government has made this request rarely; now it does so reflexively.”
The Court’s decision to overturn the lower courts’ stay has grave consequences both for asylum seekers and the judicial system. Because surely, this administration will turn again to its friends on the Supreme Court when it receives a ruling it dislikes.
