As right-wing senior policy adviser Stephen Miller has consolidated his behind-the-scenes power in the Trump administration, fundamental rewrites of immigration policy have occurred via regulatory changes and a series of executive actions justified using nebulous national security rationales.
On Friday, however, a series of rulings by federal courts in New York, California and Washington State suggested that Miller and Trump’s anti-immigrant policy push may have finally hit its limits.
This pushback from the courts comes after months of unchecked anti-immigrant attacks in the policy arena. In recent months, the Trump administration has sought to completely rewrite asylum policy by denying entry to all those who transit through Mexico en route to the U.S. It has signed “safe third-country” agreements with El Salvador, Honduras and Guatemala — three of the most dangerous countries in the hemisphere — so that they will serve as dumping grounds for asylees deported from the U.S., and it has decimated the refugee resettlement program. Through a radical reinterpretation of the public charge rule, the administration has sought to make it impossible for needy immigrant families to access pretty much any form of public assistance without risking their legal status in the country.
Moreover, the Trump administration has indicated that the Department of Housing and Urban Development (HUD) will likely soon publish a rule change seeking to evict all mixed-status immigrant families from public housing and to eliminate their ability to access Section 8 vouchers. And, just a couple weeks ago, Trump announced, via a king-like “proclamation,” that his government would no longer grant visas to any immigrants who could not prove they would have private health insurance within one month of arrival in the country.
All of these have come on top of earlier measures such as the Muslim travel ban, the attempts to eviscerate the Temporary Protected Status program and Deferred Action for Childhood Arrivals, and the deliberate slow-down of overseas visa processing for applicants seeking to move to the United States. Meanwhile, the administration has used “national security” as a pretext to divert of billions of dollars for the construction of Trump’s much-touted border wall without authorization from Congress.
Pushback From the Courts
The rulings delivered by courts in New York, California and Washington State on Friday offer some hope that the legal system is finally ready to set some boundaries on Miller and Trump’s anti-immigrant policy extravaganza.
After the public charge rule was published in the Federal Register, eight federal lawsuits have challenged Trump’s threat, some filed by state attorneys general, others by civil rights and immigrants’ rights organizations. All argued that the policy would cause irreparable harm to immigrants and the communities in which they lived; and all argued that the reinterpretation of well-established rules around public charge were in fact a usurpation on Congress’s authority to legislate on immigration issues.
Courts in New York, in California and in Washington State agreed with the plaintiffs on Friday. All issued nationwide injunctions against implementation of the new rules, just days before they were due to go into effect. The New York judge, George Daniels, was particularly scathing, writing that what Trump was trying to implement through this rule change was something “repugnant to the American dream of the opportunity for prosperity and success through hard work and upward mobility.”
New York Attorney General Letitia James, who has vocally opposed the public charge changes from the outset, stated, “The courts have thwarted the Trump administration’s attempts to enact rules that violate both our laws and our values.”
Meanwhile, in Texas, a federal court judge, David Briones, ruled that Trump had dramatically exceeded his powers and done an “unlawful” end-run around Congress’s control of the federal purse strings by diverting money allocated for military construction funds in order to build parts of his much-touted border wall.
Given the rationale for the injunction against implementing public charge, it seems likely the HUD rules will also fall to the same sort of injunction, as will the new requirement regarding private health insurance. It’s also likely the Texas ruling will be used to prevent Trump from launching another raiding mission next year — one that has been openly contemplated by Miller and other advisers in recent months — to grab additional wall-building funds.
All of this comes on top of a ruling from two weeks ago, using similar legal rationales, which locked in place the terms of the Flores settlement and limited the government’s ability to establish new rules that would allow it to set up concentration camps for immigrants and asylum-seeking families.
In all these instances, judges have ruled that fundamental policy rewrites cannot be made simply by dressing them up as regulatory tweaks.
Appeals Are Likely to Go to the Supreme Court
These decisions will, of course, be appealed by the Trump administration up to the Supreme Court, which, if it chooses to hear them, will likely end up ruling on them in the weeks running up to the 2020 election.
Yes, it is certainly possible that in at least some of these cases, the conservative majority on the court will favor the Trump administration, giving it national security leeway in much the same shameful way as it did in upholding version three of the Muslim travel ban and in allowing the asylum rule regarding those transiting through Mexico to stand temporarily while the court cases challenging it made their slow way through the legal system.
However, it’s possible that the winds are shifting enough on this issue to make the five conservative justices think twice about adding their imprimatur to unpopular policy changes that have been implemented in ways that numerous lower courts have found to be clearly unlawful. A majority of Americans do not want immigration levels decreased, and the number of voters who want to increase the number of immigrants allowed into the country has been inching upward in the last decade. And despite three years of Trump utilizing all of the propaganda tools at his disposal to demonize immigrants, only about one in three Americans want to reduce immigration.
Most members of the public think immigrants are a boon to the economy; in fact, the more Trump has beaten up on immigrants, the more Americans have told pollsters they believe immigrants are economically beneficial to the United States. As for Trump’s border wall, it has never commanded majority support, and nearly three years into his presidency, this signature issue of his is still opposed by the voting public.
Drowning in scandals and facing almost certain impeachment, Trump is, by the day, wading ever-further into the waters of extremism and overt racial bigotry. His campaign events since the impeachment inquiry was announced in late September have become little more than race-baiting, whip-up-the-mob, Nuremberg Rally-type spectacles. And his diatribes, both in his speeches and on Twitter, have veered ever further into the realm of conspiratorial, fascist rhetoric.
As Trumpism becomes more explicitly simply a vehicle for white nationalism, the courts have more reason to stand up to protect basic moral principles and community cohesiveness, and those in the GOP hoping to salvage something of their internationalist, global worldview from the wreckage have more of an incentive to resist Trump’s hyper-nationalist policies.
Donald Trump, drunk on his sense of power, is attempting to remake American government into a quasi-dictatorship propped up by a rubber-stamp Congress and a rubber-stamp judicial system. He is now running up against the sobering reality that these other institutions have their own thoughts on how constitutional governance should function.
The recent legal developments suggest that Trump is going to be butting his head against congressional and judicial opposition to his illegalities more and more frequently over the weeks and months ahead.