The real plot of the Roberts Supreme Court
The real way to read the immigration decisions the Supreme Court issued yesterday is not to see them solely as losses for immigrants to the United States or the rights of immigrants. They are much larger losses. They are losses for the authority of Congress to have its laws fully executed by a president who doesn’t agree with them.
Markwayne Mullin vs. Al Otro Lado concerns a 1917 law that requires immigration officers to inspect noncitizens who arrive at ports of entry to determine whether they may enter the United States. Congress amended the law in the Refugee Act of 1980 to allow noncitizens fleeing persecution in their home country to apply for asylum as part of this inspection process.
The Act lays out a required set of procedures to guide this process. It says that a noncitizen who seeks admission to the United States “may apply for asylum.” If the noncitizen lacks valid travel documents, the officer “shall order [her] removed” unless she conveys an intention to apply for asylum or a fear of persecution, which in turn requires the officer to “refer” her for further processing of her asylum application.
This system is designed to ensure that the U.S. government considers the application of each person seeking to come into the United States to determine who should be let in, who should be turned away, and who should be allowed to apply for asylum.
But yesterday, the Supreme Court’s majority held that a president may circumvent these requirements simply by having U. S. immigration officers stand at the border and physically block noncitizens from setting foot on U. S. soil — even if the asylum seeker is certain to be persecuted, or killed, if she is turned away.
What happened to the Refugee Act of 1980 and the specific procedures outlined in it? The Supreme Court ignored it.
The other decision released yesterday, Markwayne Mullin vs. Dahlia Doe, concerns another law, part of the Immigration Act of 1990 called Temporary Protected Status. For over a decade administrations have provided humanitarian Temporary Protected Status relief to Haitian and Syrian nationals coming to the United States.
Yesterday, the Supreme Court’s majority held that federal courts may not review the Secretary of Homeland Security’s compliance with that law. But in fact the Immigration Act of 1990 specifically allows judicial review of whether the Secretary adhered to the procedures the law requires — exactly what the plaintiffs disputed.
It would be easy to see these two cases solely through the lens of immigration — and conclude that the Supreme Court’s decisions yesterday simply backed Trump’s and his fanatical underling Stephen Miller’s commitment to block noncitizens from the United States or to force them out. And surely these are the consequences of both of of yesterday’s rulings.
But the decisions are even darker and more dangerous than this. Even in the face of two laws in which Congress instructed the executive branch to do certain things, a majority of the current Supreme Court — the abominable Roberts Court — has bent over backwards to ignore those laws.
This must be seen for what it really is — a systemic effort by the six Republican appointees on the court to shrink congressional authority and enlarge the authority of the executive branch.
If there was any doubt before, there should be none now: The Supreme Court is part of the anti-democracy movement led by Trump and the billionaires behind him.
Robert Reich is a professor of public policy at Berkeley and former secretary of labor. His writings can be found at https://robertreich.substack.com/.
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