The Supreme Court has repeatedly come to President TrumpDonald TrumpJudge rules Alaska governor unlawfully fired lawyer who criticized Trump Giuliani led fake electors plot: CNN Giuliani associate sentenced to a year in prison in campaign finance case MORE’s aid over the border, bolstering his efforts to build a wall and turn aside migrants seeking asylum on the southern border.
The latest example came Wednesday night, when the court issued an unsigned order allowing the administration’s stringent new asylum policy to remain in place while battles over its legality continue.
The new rule is essentially a blanket rejection of asylum-seekers who pass through Mexico before arriving at the southern border, denying entrance to almost all Central American migrants, who make up the majority of the recent surge in border-crossers.
The order included a singeing dissent from two of the court’s liberal justices, who argued it was reflective of a broader shift in how the court has handled such questions in the Trump era.
It also came a little over a month after the court backed up Trump’s decision to divert $2.5 billion in military funds to build his border wall — a focal point of his first presidential campaign that is vitally important to the president as he embarks on his reelection bid.
The two decisions underscore how the Supreme Court, which includes two justices nominated by Trump and confirmed by the GOP-controlled Senate, has been a key part of Trump’s efforts to reshape the nation’s immigration laws to limit both illegal and legal immigration.
Both justices, Neil GorsuchNeil GorsuchThe Hill's Morning Report - Presented by Facebook - Biden talks, Senate balks Sotomayor, Gorsuch issue statement denying tensions over masks Steve Bannon's Supreme Court? MORE and Brett KavanaughBrett Michael KavanaughSupreme Court sides with murder defendant in major evidentiary ruling Ossoff and Collins clash over her past support for voting rights legislation Supreme Court rejects Trump's bid to shield records from Jan. 6 committee MORE, endured intense confirmation hearings and were only narrowly confirmed amid fierce opposition from Democrats who worried that they would be partial toward Trump's agenda.
Those appointments have been particularly controversial because of Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThese Senate seats are up for election in 2022 WATCH: The Hill recaps the top stories of the week Effort to overhaul archaic election law wins new momentum MORE’s (R-Ky.) move to block former President Obama from appointing the more liberal Merrick GarlandMerrick GarlandNewsom vows crackdown: Rail car looting like 'third-world country' Tlaib blasts Biden judicial nominee whose firm sued environmental lawyer Oath Keeper charges renew attention on Trump orbit MORE to the seat now held by Gorsuch.
The appointments of Gorsuch and Kavanaugh have shifted the court decidedly in favor of conservatives, but the relationship between the courts and the administration has changed as well.
Trump, Vice President Pence and Attorney General William BarrBill BarrWilliam Barr's memoir set for release in early March The enemy within: Now every day is Jan. 6 Dems worry they'll be boxed out without changes to filibuster, voting rules MORE have each at various points ripped lower courts for their use of nationwide injunctions to stall administration policies, and the president has accused his opponents of court-shopping in search of favorable rulings.
But the administration has itself pursued the unconventional strategy of seeking relief from the Supreme Court to allow its immigration agenda to go ahead unimpeded.
“It is becoming more and more clear that this Supreme Court is acquiescing to Trump’s political requests rather than protecting its founding principles of independence as a third branch of government, governed by the rule of law, and impartial to the whims of politics,” Ur Jaddou, former chief counsel for U.S. Citizenship and Immigration Services (USCIS), said in a statement after Wednesday’s order.
“If the Court’s own justices are questioning the impartiality of decisions by this Court, how is the American public supposed to trust that the next big immigration decision by this Court will be one that is made free of politics and pressure from this administration?” she added.
While former Presidents George W. Bush and Obama filed eight stay applications to override lower courts over a combined 16 years, Trump has filed 21 in 2 ½ years, Stephen Vladeck, a University of Texas law professor, told The Hill.
Advocates have succeeded in getting lower courts to temporarily block many of the administration's immigration initiatives, but Solicitor General Noel Francisco has used stay applications to persuade the Supreme Court to override those blocks.
Justice Sonia SotomayorSonia SotomayorOvernight Health Care — Another Texas abortion setback Supreme Court rebuffs abortion providers again over Texas 6-week ban Supreme Court sides with murder defendant in major evidentiary ruling MORE hammered the court for acquiescing to the administration’s strategy of requesting stays in her dissenting opinion, which was joined by Justice Ruth Bader GinsburgRuth Bader GinsburgSecond gentleman Emhoff acts as public link to White House Former colleagues honor Reid in ceremony at Capitol Congressional Progressive Caucus backs measure to expand Supreme Court MORE.
“Granting a stay pending appeal should be an ‘extraordinary’ act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively,” she wrote.
“Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here. I respectfully dissent,” she added.
The administration’s increasing reliance on the Supreme Court to enact its immigration agenda comes as lower courts have blocked cornerstone actions, such as the rescission of the Deferred Action for Childhood Arrivals (DACA) program.
Jonathan Turley, a law professor at George Washington University, said that “the rising number of national injunctions being imposed by trial courts” explains the administration’s strategy.
“The Trump administration has very good reason to go to the Supreme Court to seek intervention because of these national injunctions,” he told The Hill.
The decisions on asylum and the border wall are just a few of the immigration rules in which the Supreme Court will likely play a role during Trump’s presidency.
For example, the court is set to take up the debate over DACA, which gives legal status to thousands of immigrants who came to the U.S. as minors, this fall.
Other Trump immigration policies, such as denying citizenship to those who rely on public benefits or limiting asylum applications to those who come to the country via ports of entry, are also being challenged in lower courts.
The administration could ask the Supreme Court to lift blocks on any of those, forcing the court’s hand again.
“This is going to be a significant period for the Supreme Court and immigration law,” Turley told The Hill.
Acting USCIS Director Ken Cuccinelli defended the administration’s requests to the Supreme Court amid legal challenges at an Axios event Thursday. He dismissed the flood of lawsuits brought in response to immigration policies, chalking it up to the state of politics.
“Being sued isn’t a measure of whether or not what we’re doing is legal or appropriate policy,” he said. “It’s become a tactic of policy to bring suits. Look, I was an attorney general for Virginia. I was the first one to sue on ObamaCare and the first one to have it held unconstitutional.”
“But policy rolls on. We have these debates, and partly they’re carried out in courts, which is OK. It’s important that everything that be done be legal. Where my frustration and my pessimism rolls in is when I see rather nakedly political decisions from the bench,” he added.