Last week’s Supreme Court decision on Trump’s new asylum restrictions inaugurates a horrifying new restrictionist era in U.S. immigration policy.
The decision, which allows the new constraints to go into effect while the legal challenges against them make their way through the court process, has made the (often undeserved) image of the U.S. as a leader in the resettling of asylum seekers and refugees utterly impossible to maintain.
The decision means that any people who transit through Mexico en route to claiming asylum in the U.S. will be immediately deportable if they didn’t first try to claim asylum in Mexico only to be rejected.
In court challenges in California and elsewhere, the ACLU and other opponents of the changes had argued the restrictions were a wholesale immigration policy change, dressed up as simply a regulatory tweak. They argued the changes clearly violated the Refugee Act of 1980, which allows people who arrive on U.S. soil to claim asylum and to argue they have a “credible fear” that harm will befall them if they are returned to their home countries. The 1980 Act was, in part, intended to prevent the U.S. falling afoul of international law and of the United Nations convention by expelling people back into harm’s way. They also argued that, in the way it implemented the new rules, the administration had run afoul of the Administrative Procedures Act.
The Supreme Court didn’t rule on the merits of these arguments. Instead, the court’s conservative majority simply decided to give the administration leeway to start implementing the new rules immediately while they were still being challenged in the courts. It was all-too-reminiscent of another decision, from earlier in the summer, when the court, in a 5-4 decision, allowed construction on the border wall to begin, using funds seized by Trump under his national emergency declaration, while the legal challenges were still underway.
On the most obvious level, the ruling means that unless and until the courts ultimately find that the content of the new regulations, as well as the way they were implemented, violate existing laws, the southern border has now been effectively shut to asylum seekers from anywhere other than Mexico.
The consequences will be far-reaching, and extraordinarily damaging both to the lives of individuals no longer granted asylum and also to what remains of the global reputation of the United States. Already overflowing refugee camps in Mexican border towns that house tens of thousands of migrants from around the world will become even more crowded. These are camps lacking access to clean water, to toilets and showers, to reliable supplies of food. Stories coming out of these camps portray utterly stark, barren, living conditions — and those conditions will now likely deteriorate further, leaving the residents ever more vulnerable to gangs, to human traffickers, to kidnappings, and so on.
Mexico — which is already hosting huge numbers of Central American migrants, as well as would-be-asylum-seekers from around the globe who headed to Mexico on the way to the United States, only to get stuck in the country as Trump’s lockdown of the border intensified — will face tremendous social and political pressure from its own populace to further militarize its southern border so as to bottle up the flow of desperate migrants before they leave Central America.
As Todd Miller writes in his powerful new book, Empire of Borders, U.S. border policy and enforcement is now so coercive and so all-powerful that it shapes and reshapes policies of countries not just along the U.S. border but ever further afield. And, Chiapas, in the impoverished south of Mexico, now becomes even more of a front line in the efforts to lock desperate migrants out of accessing the First World.
Moreover, the Supreme Court’s decision means that the huge numbers of people who entered the United States from Mexico and filed asylum claims in the period after the regulatory change was issued in July but before the Supreme Court allowed its provisions to kick in, will now be subject to summary deportation — not just across the border into Mexico, but back to the home countries from which they fled, oftentimes in fear for their lives. Immigration attorneys from the ACLU told me they fear that many tens of thousands could be at risk of being immediately returned to their homelands.
As for those who entered the U.S., claimed asylum and were then returned to camps in Mexico while they awaited their court hearings, they now face the extraordinary situation of being deportable back to their home countries if they set foot on U.S. soil to attend their court hearings.
None of this, of course, will stop migration. Desperate people with no access to food, water and housing for their families in their home countries, as well as people fleeing gang violence, the ravages of climate change, narco-governments and collapsed economies, will still head north. They will do so next month for the exact same reasons they did so last month — because they have concluded that their families’ survival depends upon it. Except, instead of trying to follow the legal process and file asylum claims, they will be driven in ever-greater numbers to hire smugglers, coyotes, to transit them through the most remote and deadly stretches of the desert and into the United States. Instead of seeking a legal status that would, if the system eventually granted them asylum, allow them to live, work and gain a pathway to eventual citizenship in the United States, they will be forced into the shadows, further swelling the ranks of the undocumented and the exploited.
This is a policy, upheld for now by Supreme Court imprimatur, that is tailor-made to enrich smuggling networks and employers who subject undocumented immigrants to abusive, exploitative conditions.
And now that the Supreme Court has sided with the administration, the effects could well be felt across an array of other dramatic policy shifts, both emboldening the Trump administration to seek ever-more ghastly policy changes via executive action and regulatory changes, and also sending a signal that already published rule changes are likely to be given the benefit of the doubt by the Supreme Court. Over the last few months, the administration has unveiled a slew of regulatory changes intended to utterly rewrite U.S. immigration policy without the input of Congress and in the face of overwhelming opposition from those who have offered public comments. For example, the new Public Charge regulations published by Department of Homeland Security (DHS) deny access to benefits programs to legal immigrants and their families. Proposed changes put forward by Department of Housing and Urban Development (HUD) would result in the eviction of more than 100,000 people, all members of mixed-status families, from public housing and Section 8 housing. And new regulations published a couple of weeks ago aim to shred the Flores settlement, which limits how long immigrant children can be detained for, and instead allow for the indefinite detention of immigrant families in concentration camp-like facilities.
All of these policy changes have already been, or are likely to be challenged in the courts, by states’ attorneys general, in California and elsewhere; by the ACLU; and by an array of immigrant rights, housing rights, and public health organizations. They are being challenged on much the same grounds as were the asylum changes: that they are not so much regulatory tweaks as far-reaching policy changes, and they represent both huge regulatory overreach and also clear violations of the Administrative Procedures Act.
In all likelihood, a host of lower courts will, over the coming weeks and months, rule for injunctive relief, temporarily stopping the implementation of the new rules. But, if last week’s Supreme Court decision serves as a guideline for future decisions, the court’s majority could well decide to let these rule changes kick in while the court challenges are playing out. The effects would be layering yet more catastrophe and cruelty onto the most vulnerable of populations: kids imprisoned indefinitely, millions of legal immigrants deterred from applying for public assistance, hundreds of thousands of mixed-status families evicted from public housing and denied Section 8 vouchers.
Trump is fundamentally rewriting more than a half century of immigration policy and more than three quarters of a century of policy vis-à-vis asylum seekers and refugees. He is doing so with no congressional input, and despite the repeated interventions of the lower courts. And he is getting away with it because of a stacked Supreme Court — the conservative majority of which was gained only by Mitch McConnell’s year-long refusal to hold hearings for President Obama’s Supreme Court nominee — that has decided to rubber stamp the Trump administration’s most awful decisions.