When people look back at September 11th, 2019, will they remember it as the day the Supreme Court helped the President get around Congress forever?
- *Update: According to this helpful Lawfare blog post, it’s possible that the Supreme Court allowed the policy to continue because of standing issues, not on the merits.
- Another strange NY Times article where they fail to mention that the US has its own asylum law that is now being violated. I understand the point of this article is to explain how our asylum policies are following an international trend set by Australia, but it seems to be a grave omission to not mention that we also have our own law, written by our own Congress.
On February 3rd, 1959, three of America’s most important Rock ‘n Roll artists were killed in a plane crash. The event changed the course of music history and marked the end of one musical era in America and the beginning of another.
On September 12, 2019, the US Supreme Court ruled that the President’s administration could ignore a law written by Congress in order to deny asylum to thousands of people while the policy of denying asylum is adjudicated in the courts. Why do I say this is the end of rule of law in America? Because if the Supreme Court thought that the Administration’s actions were unconstitutional, they would not have allowed the policy to proceed. Yet the Administration’s policy is a clear violation of Separation of Powers. It is Congress who makes the laws and if the President doesn’t like them, he must go through Congress, not the courts, to get them changed.
This is not a close case. The asylum law says this:
“(1) Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section…
(2) Exceptions
(A) Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.”
The above exception is why Trump has been trying to get Mexico to sign a Safe Third Country agreement. Without a Safe Third Country agreement, the exception in the law does not apply. Apparently, the government is making some convoluted argument that asylum-seekers in Mexico have been “resettled” in Mexico. This is ridiculous. A person who hasn’t even been granted asylum by Mexico, who has not gone through a formal process of any kind, is not “resettled” anywhere. They haven’t even been settled. You don’t need a law degree to understand this, just the ability to read. Don’t want to take my word for it? Read this brief by law professors.
Yet today, the Supreme Court has allowed the United States government to return asylum seekers to Mexico without an agreement. Read the law again: is this legal? No.
Congress could easily change this law, but it hasn’t. So the correct procedure is for either (1) the administration to sign a Safe Third Country agreement with Mexico or (2) change the law by getting Congress to pass a reform package. We’ve been talking about immigration reform in this country for decades. If the Republican Party and/or the Trump administration would like to get it done, then by all means, do it! But to start going around the laws of the United States as written, well, that’s something else entirely. And to have it upheld by the Supreme Court. Well, that’s something else entirely again.
The administration is claiming that the MPP get their authority from Section 235(b)(2)(C ) of the US Code, “Treatment of aliens arriving from contiguous territory: In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.” Ah ha! You may be thinking. How clever of them! They’ve outsmarted us with their obscure loophole!
Look, it’s obvious from the way the law is written that the “contiguous territories” clause is not meant to be applied to asylum-seekers. It was not Congress’s intent to allow the government to privilege asylum claims from people arriving in the US by air. Even were this so, this provision would be unconstitutional discrimination.
