Scalia would have applauded the asylum ruling Trump rages about

Scalia would have applauded the asylum ruling Trump rages about
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President TrumpDonald TrumpFive takeaways from the Ohio special primaries Missouri Rep. Billy Long enters Senate GOP primary Trump-backed Mike Carey wins GOP primary in Ohio special election MORE went on a tirade after District Court Judge Jon S. Tigar, an Obama appointee, blocked his attempt to restrict asylum applications. Trump claimed Tigar was a politically motivated  “Obama judge”  who had a “much different point of view than the people charged with the safety of our country.” 

It triggered an unexpected rebuke from Supreme Court Chief Justice John Roberts’ of the president's remark, “We do not have Obama judges, or Trump judges, Bush judges or Clinton judges.” That's what most people are talking about.


But surprisingly little attention has been paid to the merits of Tigar’s ruling in East Bay Sanctuary Covenant v. Donald J. Trump.   

Not only was that ruling correct but it followed a legal doctrine advocated by no less a conservative legal hero than the late Supreme Court Associate Justice Antonin Scalia.

The issue in East Bay Sanctuary Covenant was whether the Trump administration had the authority to deny asylum to immigrants unless they cross the border at a designated port of entry. On Nov. 9, the president issued a proclamation, and the attorney general and the Department of Homeland Security promulgated a rule, that denied asylum to immigrants who crossed at any other location. 

But the presidential proclamation and the rule directly conflicted with a congressionally enacted statute.  In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, a Republican-controlled Congress mandated that an immigrant present in the United States or “who arrives in the United States (whether or not at a designated port of arrival)”  may apply for asylum  “irrespective of such alien’s status.” In short, Congress unequivocally provided that illegal entry does not disqualify an immigrant from applying for asylum.

Scalia repeatedly admonished judges that in interpreting a statute “the text is the law and it is the text that must be observed.” His point was that judges should not substitute their personal policy preferences for a congressionally enacted legislative text. By the same token, presidential preferences cannot be substituted either.

Thus, given the unambiguous text of the IIRIRA, Scalian principles dictated the result in East Bay Sanctuary Covenant that so outraged the president. As Tigar wrote, “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.” 

Tigar did nothing more than interpret a Republican-enacted immigration law using cherished conservative legal principles. He was still subjected to the presidential lash.

What Trump really appears to be angry about is the federal judiciary’s refusal, unlike the U.S. military, to obediently play an assigned role in his attempt to frighten the American public about the immigrant caravan. It’s a theatrical show unlike anything seen since Orson Welles and his Mercury Theatre on Air performed a radio play of H.G. Wells’ "War of the Worlds" on Halloween Night in 1938.  

Thousands of Americans, on edge over a looming war in Europe, panicked and rushed into the streets after listening to what they mistakenly thought was a news report.  “Those strange beings who landed in the Jersey farmlands are the vanguard of an invading army from the planet Mars ... advancing at express-train speed ... all communication with Jersey shore closed ten minutes ago.  No more defenses ... This is the end now.”

Trump’s characterization of the migrant caravan has an eerie resemblance. 


“That’s an invasion of our country ... The caravans are made up of some very tough fighters and people. Fought back hard and viciously against Mexico at Northern Border before breaking through. Mexican soldiers hurt, were unable, or unwilling to stop Caravan.” 

Sunday’s failed “border rush” in Tijuana by men, women and a few children didn’t exactly live up to presidential billing.

In the 1938 broadcast, the announcer told listeners that the U.S. Army had been mobilized to stop the fictional invasion (it didn’t do well against the Martians).   To confront an equally fictional invasion, Trump actually deployed 5000 troops to the Mexican border.   

Those troops had no choice but to obey their commander-in-chief. Thankfully for the rule of law, that isn’t true of federal judges like Tigar.

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.