Below is my column on Fox.com on the two immigration decisions yesterday from the Supreme Court. One of the cases turned on a Clintonesque debate of what the meaning of “in” is. In the end, however, the Court went “all in” with executive authority over immigration policy.
Here is the column:
“In ordinary speech, no one would say that a person ‘arrives in’ a place … before the person enters that place.”
Those words may seem ripped from the pages of Dr. Seuss but they are taken from the 6-3 majority opinion of Justice Samuel Alito in Mullin v. Al Otro Lado. They captured the lost-in-translation character of the Court’s fight over whether undocumented persons must be physically present in the United States to make an asylum claim. In one of a pair of major immigration wins for the Trump Administration, the Court ruled that asylum seekers who are stopped on the other side of the Southern border are not present in the United States. If treated as inside the country despite being outside it, these individuals would be allowed to enter and remain while their asylum claims are pending.
The case highlights the lengths to which the Biden Administration went to facilitate the entry of undocumented persons into the country. It rescinded a policy of “metering” that was put into place by the Obama Administration (and later restored and expanded by the Trump Administration).
In seeking to bar Trump from enforcing the same policy as the Obama Administration, the three liberal justices sounded positively Clintonesque in debating what the meaning of “in” is. Justice Sonia Sotomayor denounced the majority’s “illogical interpretation is driven almost entirely by a fixation on a single word: ‘in.’ Words, however, must be read in context and with attention to how they fit into the statute as a whole.”
In their view, “contextual” reading means that you can be “in” the United States without actually being “in” the United States.
The sharp disagreement in the opinions spilled over to the release of the opinions. Justice Alito read a summary of his opinion, followed by a more lengthy reading by Justice Sotomayor of her dissent. The stinging dissent produced a rare rebuttal from the bench by Alito, who was surprised by the extended comments and said that, if he had not been blindsided, he would have said more, including how “the policy in question was adopted by two very different administrations.”
The court also delivered a major victory in Mullin v. Doe, upholding the right of the Administration to strip more than 356,000 Syrian and Haitian immigrants of temporary protection status. Again, lower courts afforded the Obama and Biden Administrations greater leeway in granting such status than Trump in rescinding it.
The combination of the two opinions offers significant advances for the Administration in addressing millions of undocumented persons in this country.
In her dissent in Mullin, Sotomayor invoked the image of the voyage of the M. S. St. Louis, where Jews fleeing Nazi Germany were not allowed entry in various countries only to be returned to Germany, where many died in the Holocaust.
The problem with the analogy is that all of those on the St. Louis were demonstrably in flight from lethal persecution. Virtually all of the asylum claims made at our borders are rejected as unsupported or invalid. Immigration groups hand out material across the border, coaching immigrants to claim asylum status to guarantee that they can stay in the country for years before any final adjudication can be made. The acceptance rate of these claims is currently below five percent.
The question is how to limit such constructive entries if being “in” the United States does not require actually being in the United States. More importantly, absent a clear legal basis for such constructive entries, it is not clear why courts should be able to dictate such policies. The control of our borders has long been an area marked by heavy deference to the Executive Branch. During the Biden Administration, courts often embraced that discretion as the Administration allowed over ten million unvetted immigrants to enter.
Trump was elected on the pledge to reverse these policies by using the same discretion that his predecessor employed to open the border.
The dissent shows how untethered these opinions are from not just “ordinary speech,” but principles of judicial restraint. Placing these disputes in “context” is a liberating construct that allows a court to read the words “arrives in the United States” to include those outside of the United States. It also gives a glimpse at the likely approach of the new expanded Supreme Court that Democrats are pledging if they regain power.
The decisions in Mullin v. Doe and Mullin v. Al Otro Lado will not erase the backlog in immigration cases or remove millions of unvetted immigrants. That will require both an expansion of our immigration courts and real reforms to further streamline the removal process. However, in two 6-3 opinions, the Administration regained substantial authority in the management of our borders.
Jonathan Turley is a law professor and the New York Times best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
“. . . a Clintonesque debate of what the meaning of “in” is.”
The Left also played games with the word “asylum.”
In the U.S., it always meant (and still does): permission to *stay* in the U.S. In a whimsical turn, the Biden administration morphed “asylum” into: permission to *enter* the U.S.
What a brilliant move by Trump, the sycophantic GOP and the Supreme Court it has packed. Who do you geniuses think work the jobs white native-born Americans don’t want to do – in nursing homes, in factories, in construction. So cool, man – yeah – do like what Meghan Kelly says – run them all out. See how the economy responds. Send them back to their homelands that are crippled by corruption, war and famine. What a Christian thing to do from all you guys who value ‘Christianity’ so much – or your version of it.
This is the typical garbage we get from the left. They never distinguish between illegal and legal immigration. They pretend that illegal immigration is no problem, when all the facts say otherwise – including the violent crimes, the terrorist sleeper cells, the drug and child sex trafficking, the downward pressure on low-income-earners’ wages, and the drain on public resources.
Yo, anonymous low-IQ moron troll, you’re not fooling anyone here. Go back to mommy’s basement or your left-wing pot-smoking friend group, you’ll get a better reception that interacting with people who actually have brains and know how to think.
As far as the “Christian” angle – this is also typical left-wing garbage. Jesus never said that national governments must act in certain ways. His teachings relate to private interactions. Governments are established to protect the citizens of the country, not to solve all the problems in the rest of the world, or to victimize its own citizens by letting in tens of thousands of violent criminals. Idiot.
– Temporary Work Permits
– Go Home When The Job Is Done
– Never Any Path To Citizenship
The problem with the analogy is that all of those on the St. Louis were demonstrably in flight from lethal persecution.
A problem that is just as fundamental is, that her concerns are within the province of Congress. Arriving at the best or most humane policy is the legislature’s job, not the court’s. The law is written as it is written, and the court strays beyond its legitimate authority when it reaches unreasonable interpretations of the words of the statute in order to implement the policy it prefers. It is clear what “in” means, and trying to say “in” means “near” is a nonstarter for any reasonable person. Sotomayor says “arrives in” the United States includes people who are “in the process of arriving” even though they are still outside the United States. That doesn’t pass the most basic smell test. No rational person would endorse that meaning.
While I agree with the ruling the holding by the majority that “An alien “arrives
in the United States” only when he crosses the border.” because words mean things. However the holding might be missing an important element. I had thought, though I don’t know for sure, that the US Embassies and Consulates were considered US territory. So can an alien enter a US Embassy or Consulate and request asylum?
Arnold – I had to look that up too. The short answer is no.
https://www.nolo.com/legal-encyclopedia/how-obtain-protection-us-embassy-consulate.html
If you don’t want to click the link, here is an excerpt:
There is a common misconception that U.S. embassies and consulates are basically the same as U.S. soil. It is true that international law protects national embassies and consulates from being destroyed, entered, or searched (without permission) by the government of the country where they are located (the host country). However, this does not give those embassies or consulates the full status of being part of their home nation’s territory. Therefore, U.S. law does not consider asylum seekers at U.S. embassies and consulates to be “physically present in the United States” (or at a U.S. border or point of entry). This does not mean that embassy personnel cannot offer any help at all to people who are in danger and seek their protection. In extreme or exceptional circumstances, U.S. embassies and consulates can offer alternative forms of protection, including (in most countries) temporary refuge, a referral to the U.S. Refugee Admissions Program, or a request for parole to the U.S. Department of Homeland Security.