I'm sure others, including some of the bright minds here at our Center, will have a great deal to say now that a majority of the Supreme Court has agreed to allow the Trump administration to "just say no" to aliens who want to cross the southern land border illegally and then claim asylum, effectively forcing them to await a hearing outside of the United States.
It also effectively disincentivizes illegal entry, which is all to the good given the massive burden that has been imposed on our federal immigration agencies in recent years.
I'm pleased of course, and especially so since it is a pointed message to the district court judge in San Francisco, hundreds of miles from the border, who imposed a nationwide injunction on the administration's policy. That injunction was struck down by the Ninth Circuit Court of Appeals and sent back with the admonition that the injunction was overbroad. The judge then stuck his finger in their eye by attempting to re-impose the ban nationally.
Even so, the issue isn't over since all this does is allow the administration to maintain the status quo while the same judge presides over further hearings on the matter, which will ultimately go back to the Ninth Circuit, and onward to the Supreme Court again, ad infinitum. Immigration law these days is a lawyer's paradise.
But what especially caught my attention among the Court dissenters was a statement by Justice Sotomayor quoted in the Washington Times: "Once again the executive branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution."
This smacks to me as exactly the kind of subjective generalization that courts often admonish bureaucrats and administrators against, and pick at when attempting to determine whether this policy or that was tainted by some kind of bias. Does Justice Sotomayor not realize that the same standard of scrutiny in the public eye also attaches to her? Any future positions she takes on this and related issues are going to be examined carefully to see whether she has been true to the rule of judicial impartiality, or whether she has allowed her personal views to result in prejudgment of litigation coming before the Court.
With respect, not all who seek asylum are legitimate refugees, and it is the abuse of our nation's asylum regimen by opportunists that has resulted in the tidal wave of humans flowing illegally across our borders. How did they manage to do that? By manipulating those "longstanding practices" to their own ends.
Is it any wonder, then, that the administration was obliged to take action to break the chain of causality, where the interconnected phenomena of illegal entry and asylum abuse are concerned?