On Wednesday, the Supreme Court allowed the Trump administration to drastically alter immigration law by closing the Southern border to most migrants seeking asylum. The court’s order will cause untold suffering and death, allowing the government to send refugees back into the hands of their persecutors.
What may be most surprising about Wednesday’s decision, however, is the court’s apparent rush to issue it. The 9th U.S. Circuit Court of Appeals has not yet heard arguments on the merits of the case, Barr v. East Bay Sanctuary Covenant, let alone issued a ruling. Rather than wait for the 9th Circuit’s decision, Trump’s Department of Justice leapfrogged over the appeals court to request relief from SCOTUS. Such relief, known as a stay pending appeal, is supposed to be extremely rare. Historically, the court seldom grants the DOJ stays of any kind. Yet the government now regularly demands them, and the court is often happy to oblige.
This dynamic has led critics to charge that the Trump administration correctly views the Supreme Court as a tool to cow the lower courts into submission. In an unusual move, Justice Sonia Sotomayor seemed to endorse that critique at the end of her piercing dissent on Wednesday.
East Bay Sanctuary Covenant revolves around yet another federal policy change to severely curtail the number of immigrants who can enter the U.S. In July, Attorney General William Barr issued a rule that barred almost all migrants from seeking asylum at the Southern border. The rule declares that migrants at that border cannot ask for asylum here until they have sought protection from “a third country through which they transited en route” to the U.S. Most migrants at the Southern border travel through Mexico from Central American countries like Honduras and Guatemala. The rule effectively compels these migrants to request asylum in Mexican because it is ostensibly a safe alternative. They can only seek asylum in the U.S. after Mexico has denied their claims.
Immigration advocates promptly challenged this policy, alleging that it violates federal law. The Immigration and Nationality Act states that anyone “who is physically present in the United States or who arrives in the United States” may apply for asylum regardless of status or whether they entered through a designated port of entry. There are two relevant exceptions that make people ineligible for asylum: the firm resettlement bar, which blocks migrants who were “firmly resettled” in another country before arriving in the U.S, and the “safe third country” bar, which denies asylum to someone who could be removed to a “safe” country that can provide a “full and fair procedure” to adjudicate an asylum claim.
The plaintiffs, a group of immigration advocacy organizations, argue that Barr’s rule upends this entire scheme. Migrants who present themselves at a legal border crossing “may apply for asylum” unless an exception applies. The firm resettlement bar obviously does not: A Central American migrant who passes through Mexico on her way is obviously not “firmly resettled” in Mexico. The safe third country bar does not apply, either, at least not categorically. Since its enactment, the courts have always read this provision to compel an individualized assessment of a third country’s safety and asylum procedures. Barr wants to proclaim that Mexico will provide a safe haven, as well as a fair asylum process, for virtually every migrant at the Southern border.
In litigation, the DOJ was—to almost comic degree—unable to demonstrate that Barr’s proclamation is true. When he blocked the law on July 24, U.S. District Judge Jon Tigar noted that DOJ’s efforts to bolster Barr’s claim wound up contradicting it. The government cited multiple reports indicating that migrants in Mexico face a severe risk of violence and persecution, and that the country’s broken asylum process fails to protect refugees. As Tigar put it, the DOJ’s evidence “consists simply of an unbroken succession of humanitarian organizations explaining why the government’s contention is ungrounded in reality.”
Because Barr’s rule ran afoul of federal law and rested on assertions with no basis in reality, Tigar forbade its enforcement nationwide. In August, the 9th Circuit limited Tigar’s decision to states within the circuit, finding insufficient evidence to justify a broad injunction. Tigar extended it to the entire country once again in September after the plaintiffs put forth new evidence of harm outside the 9th Circuit. Shortly thereafter, the 9th Circuit put the nationwide injunction on pause once again while the government appealed. By that point, the government had also asked the Supreme Court to lift the block entirely. It assented on Wednesday, without explaining its reasoning; Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented.
This game of ping-pong in the lower courts was less than ideal. But it does not fully explain why SCOTUS jumped in before the 9th Circuit issued a decision on the merits. The appellate process can be a bit messy, but that mess is typically justified as a side effect of “percolation”—multiple courts opining on thorny legal questions, giving SCOTUS a buffet of options proffered by multiple judges. That’s a key reason why the justices are supposed to be wary of granting stays, including those pending appeal.
As University of Texas School of Law professor and Slate contributor Steve Vladeck noted in his forthcoming law review article, “The Solicitor General and the Shadow Docket,” the Supreme Court’s patience with lower courts is on the wane. So, too, is the DOJ’s. Under Trump, the DOJ has filed at least 20 applications for stays at the Supreme Court. That’s a huge spike from earlier administrations: Under George W. Bush and Barack Obama, the DOJ filed “a total of eight such applications—averaging one every other Term.” SCOTUS has granted these requests to Trump’s DOJ in multiple high-profile cases involving immigration, the border wall, and the transgender troops ban.
The impact of these orders can be devastating. Were it not for the Supreme Court’s premature intervention, Trump would not be able to raid military funds to construct his border wall without congressional approval. Similarly, the president would almost certainly not be able to ban transgender military service; openly trans individuals could join the armed forces and receive appropriate medical care. Both issues were percolating through the lower courts when SCOTUS’s conservatives abruptly stepped in and allowed the Trump administration to move forward with its policies. These orders strongly hinted that a majority of the court would ultimately affirm the policies’ legality.
Now the court has permitted one of Trump’s asylum bans to take effect, crushing thousands of migrants’ claims in one fell swoop. Many of these individuals have fled horrific violence, traveled thousands of miles, and presented themselves at a port of entry—everything the law requires. But as of Wednesday, the law has changed. Tens of thousands of migrants on the Southern border will be turned away, ultimately forced back to their home countries and the persecution from which they escaped. The Supreme Court’s order may look like a death sentence to them.
Decisions like East Bay Sanctuary Covenant constitute part of the court’s “shadow docket”: orders and opinions issued without full briefing and argument. The court creates a good deal of law through its shadow docket, and that law increasingly favors the Trump administration. As Vladeck illustrates, its explosion in recent years cannot be attributed solely to the rise in nationwide injunctions, through which district courts block the enforcement of an executive policy throughout the country. The DOJ has sought stays of injunctions with more limited scope. Solicitor General Noel Francisco simply appears anxious to bring cases to SCOTUS as quickly as possible, under the apparent presumption that the conservative justices are on his team.
In her remarkable dissent, Sotomayor cited Vladeck’s article to bolster her point that the government “reflexively” rushes to the Supreme Court for a stay pending appeal. “Unfortunately,” Sotomayor wrote, “it appears the Government has treated this exceptional mechanism as a new normal.” Her colleagues, she concluded, should have “resisted the shortcut.” (Because the justices are not required to note their votes on orders, we do not know if any other justices dissented.)
Not so long ago, the Supreme Court’s conservatives were appalled when they believed a president had attempted to change immigration law without congressional approval. That president was Barack Obama. Trump’s crackdown in asylum is arguably more consequential and legally indefensible than anything Obama attempted. But on Wednesday, SCOTUS short-circuited the appellate process to let it take effect, a “shortcut” that will subject thousands of migrants to persecution. If the Supreme Court keeps letting the Trump administration play by a different set of rules, it will become difficult to avoid the conclusion that the game is rigged.
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