Today the Trump Administration completed its clean sweep of the non-birthright-citizenship immigration cases at the Supreme Court. Some of these decisions are quite significant. This highlights that the current Court is quite sympathetic to aggressive executive branch action in the immigration sphere–aggressive action often expressly authorized by Congress–even if it is likely to reject the Administration’s unlawful attempt to unilaterally rewrite the law of citizenship.
The first immigration decision today was Mullin v. Al Otro Lado, in which the Court held, 6-3 in an opinion by Justice Alito, that an alien seeking to enter the United States from Mexico does not “arrive in the United States” unless and until the alien actually enters the country. This matters because an alien cannot apply for asylum until arriving in the country, and thus allows the federal government to turn away potential asylum applicants before they may seek asylum.
The second immigration decision today was Mullin v. Doe, in which the Court held, again 6-3 in an opinion by Justice Alito, that the statute authorizing “Temporary Protected Status” bars judicial review of non-constitutional claims challenging the revision or rescission of such status. Finding the sole constitutional claim raise in the litigation unlikely to succeed, the Court vacated the district court order postponing the termination of temporary protected status for aliens from Syria and Haiti pending legal challenges to the termination.
On Tuesday, the Court decided Blanche v. Lau, another 6-3 decision (this one by Justice Thomas) concluding that the Immigration and Naturalization Act does not require a border officer to have “clear and convincing evidence” that a lawful permanent resident has committed a crime of moral turpitude before deeming that individual an “applicant for admission” when re-entering the country. Thus a lawful permanent resident who has committed such a crime, but has not yet been convicted, can be required to reapply for admission after temporary foreign travel. (In this case, Lau had been charged with trademark counterfeiting but was still awaiting trial.)
Not all of the Trump Administration’s immigration victories were 6-3, however. Earlier this spring the Administration prevailed in Urias-Orellana v. Bondi, in a unanimous opinion written by Justice Jackson. Here the Court concluded that the INA requires application of the fairly deferential substantial-evidence standard to the government’s conclusion as to whether a given set of undisputed facts rises to the level of “persecution” for asylum applicants. (The applicants had advocated for de novo review.)
The Court also sided with the Trump Administration in its per curiam opinion in Margolin v. National Association of Immigration Judges, rejecting the U.S. Court of Appeals for the Fourth Circuit’s attempt to bypass the channeling requirements of the Civil Service Reform Act (based upon issues the parties had not even raised).
Taken together, these opinions show that the current Court is quite willing to embrace broad assertions of executive power over immigration policy, particularly given the expansiveness with which Congress has delegated such authority. It also shows the Court interpreting statutes narrowly, and without regard for broader policy considerations–considerations a majority of the justices believe are for Congress to resolve.
This string of immigration law victories is unlikely to extend to the birthright citizenship case, which should be decided next week. In that case, the Trump Administration is attempting to rewrite the law of citizenship unilaterally. Even if one is sympathetic to the Administration’s constitutional argument (and I am not), it is hard to argue that the EO is consistent with the longstanding interpretation of the applicable federal statute.
While Section 1401 echoes the language of the Fourteenth Amendment, it should be interpreted in line with the public understanding of those words at the time it was adopted (Cf. Justice Alito’s Bostock dissent), and such an interpretation is wholly incompatible with that offered by the Trump Administration. Thus even if one thinks the conventional interpretation of the citizenship clause is mistaken, Section 1401 would control. So, just as the Court has hewed closely to what Congress has authorized in the immigration cases already decided this term, it should reject the Administration’s birthright citizenship arguments on statutory grounds.
