WASHINGTON – President Donald Trump’s three-year crackdown on immigration has led to a surge in lawsuits reaching the Supreme Court, where a rebuilt conservative majority increasingly is paying dividends for him.
In the past year, the justices have let the administration deter poor immigrants, deny asylum seekers and redirect military funds to build a wall along the southern border. Federal officials’ efforts to force cooperation from states and cities could be next.
The high court has heard arguments in six immigration cases since its term began in October, including Trump’s plan to end the Deferred Action for Childhood Arrivals (DACA) program that has helped nearly 700,000 undocumented immigrants work without fear of deportation. Two additional cases will be argued next week, including an effort to speed the removal of migrants without federal court hearings.
“The Trump administration has made immigration its number-one issue. I’m not surprised it would trickle up to the Supreme Court,” says Karen Tumlin, an immigrant rights attorney who founded the Justice Action Center.
The glut of cases comes as the president makes his approach to immigration central to his re-election campaign. For a court that tries valiantly to avoid politics, its rulings could become fodder in that effort.
Since 2017, much of the legal action on immigration has occurred in federal district and circuit courts, where judges often upheld challenges to administration policies mounted by immigrant rights groups. The Justice Department has used the Supreme Court to block many of those rulings, particularly when district court judges have issued nationwide injunctions.
“There’s been a massive onslaught by groups opposed to immigration enforcement. As a result, a handful of federal district courts have distorted immigration law,” says Christopher Hajec, director of litigation at the conservative Immigration Reform Law Institute. “If the Supreme Court is catching on to that, then it stands to reason that they’re going to side more often with the administration.”
It hasn’t been a clean sweep. It took three versions before the justices in 2018 upheld Trump’s ban on travel from five predominantly Muslim countries. Chief Justice John Roberts cast the deciding vote last year that blocked the Commerce Department from adding a citizenship question to the 2020 census. Associate Justice Neil Gorsuch, a Trump nominee, helped to strike down as vague a law subjecting noncitizens who commit violent crimes to deportation.
The next major signal will come this spring on DACA, a program created by President Barack Obama in 2012 to help young, undocumented immigrants brought to the country as children. During oral argument in November, the court’s conservative justices appeared to believe the administration had ample policy reasons to end it.
“I assume that was a very considered decision,” Associate Justice Brett Kavanaugh, Trump’s other high court nominee, said.
String of victories
Many of the president’s recent victories at the Supreme Court simply block lower court rulings while legal battles continue, but they usually break down along ideological lines:
Another 5-4 ruling last week extending the restriction to Illinois prompted an angry dissent from Associate Justice Sonia Sotomayor and a retort from Trump, traveling in India, that both she and Associate Justice Ruth Bader Ginsburg should recuse themselves from cases involving him.
• In September, the court let the administration deny asylum to migrants at the southern border who have not sought protection from another country en route. Sotomayor and Ginsburg dissented.
• In July, the justices approved, 5-4, the use of $2.5 billion in military funding to begin building a portion of the president’s long-sought wall along the nation’s southern border.
“I am certainly troubled by the uptick in stays that are getting issued by the Supreme Court,” Tumlin says. “It sends shock waves through the immigrant rights community.”
Pending is the administration’s challenge to a California sanctuary law limiting state and local cooperation with federal immigration authorities. Other policies designed to limit asylum seekers also may reach the high court next term.
If the justices agree to hear the administration’s appeals and reverse the lower courts in those cases, “there would be a real undermining of the court’s legitimacy,” says Cecillia Wang, deputy legal director of the American Civil Liberties Union, which is opposing Trump in many of the cases.
When the court returned from its winter break last week, it faced three more immigration cases in a seven-day span, including one to be heard Monday testing the Trump administration’s effort to speed the removal of thousands of migrants without granting federal court hearings.
The California-based U.S. Court of Appeals for the 9th Circuit, which has drawn Trump’s ire for its actions on immigration, ruled last year that efforts to remove asylum seekers under such “expedited removal” procedures violated their constitutional rights. The Justice Department argues that extending the streamlined process could add years of court wrangling.
After losing the case, the administration in July expanded the expedited removal system to incorporate asylum seekers apprehended anywhere in the country who have not been continuously present in the United States for two years.
A court divided
Immigration is one of several issues that consistently divides the high court.
When the justices ruled last March against noncitizens with criminal records, it was the first decision of the term to break down along strict ideological lines. Associate Justice Samuel Alito wrote the opinion and was joined by four conservatives. Associate Justice Stephen Breyer issued a stinging dissent on behalf of the liberals.
The year before, the justices ruled 5-3 that detained noncitizens lack the right to periodic bond hearings. And when the travel ban against majority-Muslim countries was upheld, it was by a 5-4 vote.
In a related case this week touching on border security, the court ruled 5-4 along ideological lines that the family of a Mexican teen shot and killed from across the border by a U.S. Border Patrol agent cannot sue for damages. The court’s conservatives reasoned that the boy lacked constitutional rights he would have had in Texas.
A motivating factor for conservative justices has been the practice of local, federal district court judges issuing nationwide injunctions. In many cases, the Justice Department has taken the unusual step of seeking Supreme Court action before lower-court appeals have run their course.
But the president has been his own worst enemy at times.
Late in 2018, after a federal judge blocked his effort to cut off asylum for migrants who enter the country illegally – and before the case went to an appeals court – Roberts joined the court’s liberals in refusing to intercede.
It probably didn’t help that Trump had blasted District Court Judge Jon Tigar as an “Obama judge” after his initial ruling, later upheld in a 2-1 appeals court opinion written by Circuit Court Judge Jay Bybee, who was appointed by President George W. Bush.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in a rare rebuke of the president. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
Powered by WPeMatico