Apparently the standard for the Supreme granting a stay is similar to that for a lower court to grant an injunction. There must be a likelihood of granting a petition for certiorari, a fair prospect of reversal, prevention of irreparable harm and, sometimes, a favorable balancing of the equities. Denial of a stay may not be a good sign for a case's future prospects at the Supreme Court.
1
Thank goodness the chief justice recognized the truth. I do not think he ever imagined a president who would be so cruel, racist and dismissive of statute and precedent. In my view, Justice Roberts now begins building his legacy in repelling the assault on human and civil rights now waged by the administration.
7
We needed some good news today. Thank you, the 5 on SCOTUS who provided some.
8
Someone must have had a screw loose to think anything this stupid would work. That would mean that no one could apply for asylum unless they cooled their heels in Mexico while processing. No matter where in the world you were fleeing, you'd have to wait in Mexico for approval. The move was clearly aimed at Hispanics.
5
If you are fleeing a house fire, it shouldn't matter if you came out the door or had to go through a window.
6
Good for the Supreme Court. Even when stacked with conservative justices, it adheres to the rule of law. Something Potus, apparently, does not.
6
I think it is odd to publish such a dramatic picture without saying on which side of the border it is taken, and whether the child is being lowered or lifted. And what of the nearby gap and sloping part of the barrier nearby?
3
Dear NYTimes: please do not quote Trump administration officials without correcting false statements. There is no surge in illegal border crossings. There is no crisis. Border crossings are at a fraction of what they were in 2000. More Mexicans are returning to Mexico than coming in. I keep seeing NYtimes repeating falsities or ridiculous exaggerations from the Trump administration without context. The most egregious in recent memory is you published Trump saying that the US was the only country with birthright citizenship in the world, originally without a corrective statement, though it was added later. Is it good journalism to publish false statements without pointing it out? Also, what is with this picture selected for this article? Like people throwing their babies over a wall is representative of asylum seekers?
7
I am relieved by the Chief Justice’s alignment with the other justices who refused to grant review.
I am also grateful that Justice Ginsburg’s surgery was successful.
Good news these days is in very short supply.
16
This is a mistake and one will lead to more extreme confrontations between the Supreme Court and executive branch. I would stop short of saying it’s politically motivated but am certain it will be judged as such. Our immigration is broken; this new ruling doesn’t help.
12
@Tiger shark
If the Trump administration would stop breaking the law, such "extreme" confrontations wouldn't be necessary.
How exactly is upholding the plain intent of the asylum statute extreme, though?
5
Then the solution is for Congress to pass laws in line with Constitutional principles, not for presidents to be executing executive orders.
4
Thank you to the great RBG, for casting her vote just before boarding a plane to NYC for cancer surgery. She is a force of nature, a calm wind in a sea of storms, a role model for all of us. Sorry for this sideline to the article, but she deserves credit for her devotion and determination to uphold the rule of law. And others on the flight to NYC with her note that she worked the entire time. Way to go, RBG, and our prayers and gratitude are with you.
47
@Barbara
It was Roberts who was the swing vote. Just saying.
2
Congress has failed time and time again. They need to fix what’s wrong with the immigration policy or not and then the need for enforcement must follow. Now there is nothing but confusion. Either we have laws or we don’t.
4
The White House, no matter the issue of 'the Wall' they are addressing, has come up with a new ploy. They have changed the way they'll talk about 'the Wall' by referring to it as the 'Slat Fence'. We're obviously heading back to their original strategy of distraction, the 'rabbit hole' gambit.
This latest move is to change the overall notion of 'the' Wall' in our psyche, as they begin nibbling around the edges of how they present 'the Wall'. And let's be certain, primarily to its 'base', but also generally to the world, and especially the conduit to get the messaging rolling, the Media.
My over done use of Caps is for emphasis.
This right was intended for people fleeing for their lives and who cannot very well make it to a legal port of entry, the way I read it. Are these people in such immediate danger of persecution and violence in Mexico that they cannot present at such port of entry? I think not, so clearly it’s a matter of gaming the system. Same fallacious assumption that migrants and refugees can enter any way possible, even when not in any immediate danger, played out in Europe in 2015, and continue to do so in certain countries I shall not mention in this post. The political system in the US is overly complex, too many checks and balances, courts having the final say, supermajorities, etc., makes it almost impossible for any government to govern in a rational manner.
3
This Supreme Court understands that the majority of this country no longer has faith in the them as an impartial, non political body. They are owned by the conservatives. Once you lose even the appearance of impartiality, you have lost the rule of law. So, they have recently sided with liberals on some issues that do not affect their wealthy masters bank accounts. Attempting to appear impartial, they will reserve the decisions owed to their puppeteers for health care , Social Security, Medicare roll backs, voter Gerrymandering and preserving the electoral college. Guaranteed .
I would have to agree that, at first glance, the law regarding this is plain, leaving little reason to grant a stay. I would have liked to have seen an actual dissent by the conservatives, but as I understand it, such summary judgments typically provide nor require any written reasoning. But I would guess that the conservatives were following the reasoning of the dissenting opinion from the 9th circuit.
The argument there is that the statute referred to only guarantees a right to apply for asylum if they are on US soil, but says nothing of their eligibility for same. This is addressed in a different section of the statute and in no way "precludes a regulation categorically denying eligibility for asylum on the basis of manner of entry".
One may not agree that this argument will certainly prevail, but given the exigencies of the current chaos at the border and the right of the executive to enact lawful policies as it sees fit, it seem to me to have a fair chance of prevailing.
For those who tend to spit out their coffee on the suggestion that Trump may have such a right, I would say, try to imagine this being done by the Obama administration (sort of like how they, too tried child separation to discourage mass border crossing).
In any case, IMO the whole problem here is related to the expansion of what constitutes a refugee, something imposed by the judiciary, rather than by statute.
1
The majority of Americans are against illegal and even legal mass migration on the scale that we see today, but the judges and also the politicians are working against them.
The US desperately needs immigration control before the whole global south receives the signal to migrate to the US.
Trump is trying to stem the tremendous abuse but is stymied at every turn. The US is so dysfunctional in this regard that we cannot control who enters into our country, even though the majority of Americans want tight control.
Trump is swimming upstream regarding the wall, although previous administrations have built similar walls on at least a portion of the border already. Where was the outcry when these portions were built? Answer- there was no outcry. This leaves one to determine that the outcry now against Trump is politically motivated, but it is the country as a whole who will pay the price of a continuous dysfunctional system and not only Trump.
4
The picture of a mother, small child and father scaling the wall makes clear how futile it is to build a wall.
Many commenters praised Justice Roberts for upholding a federal law which very clearly states that any person, whether they entered the US legally or illegally has the right to make an asylum claim and appear before a judge.
The real focus should be on how can Alito, Thomas, Gorsuch and Kavanaugh claim to be Supreme Court Justices acting in good faith to uphold our laws when their votes contradict the clear wording of the law? They sided with Trump, who is violating our immigration laws.
Their votes were political votes, not legal opinions consistent with law and precedent.
4
And when will policymakers, of whatever party, elected as well as selected ones, local, regional to national,carry out a basic mandate of their daily roles- enable personal, measurable accountability in the development and sustainability of equitable well being of ALL of the diverse people in this divided nation? The enabled lack of accountability fosters a continuation of a harmful WE-THEY culture and its daily violating of created selected and targeted “the other(s).” People. Ideas, concepts, values, norms and processes which underpin civil daily living in a caring, democracy.Which underpin the equitable sharing of available and accessible human and nonhuman resources which are so critical for wellbeing.Of all types. Levels and qualities.Trump, unaccountable in what he says and does, is concerned about safety which walls US in, while walling-out necessary menschlichkeit as a way of living.
Kudos to the Court, and Justice Roberts, for not caving to the president's darker side.
However, I have an issue with the today's photo showing a family lifting an infant up to the top of a barrier (wall?) between the US and Mexico. Not to be too cynical but why are they trying to climb over the barrier when just a few meters away one can clearly see that the sheeting is broken and separated. It appears that they could have easily mad their way over the border without risking the infants health.
My question is whether this photo was staged for dramatic purposes.
Think about it.
What happened to that far-right court I kept hearing about during the Kavanaugh-confirmation hysteria? First they passed on the Planned Parenthood case, and now this. The sky didn't fall after all.
1
The DHS announcement on Thursday that aliens who arrive in the U.S. and seek asylum, will now await the adjudication decision in Mexico, based on a new bi-lateral agreement between the two countries announced by DHS Secretary Kirstjen Nielson.
This new agreement with Mexico brings into play a current U.S. immigration law Exception. The Exception is to the recently discussed "arrive in the U.S. by any means" provision. This Exception involves "Safe Third Country bi-lateral agreements," just like the one Nielson announced:
The AG, at their discretion, if there is a bi-lateral agreement between the U.S. and another safe country, have aliens arriving in the U.S. seeking asylum stay in such safe 3rd country until their case is adjudicated.
This new agreement with Mexico makes the above Exception applicable law and will impact recent Judge Tigar, 9th Circuit and yesterday's USSC decisions.
Immigration law implementation has changed.
I am puzzled by the present vilification of would be immigrants. Surely the majority of the American population, including the Founding Fathers and the family of the President, have been or are descendants of immigrants? If the present attitude had always been the case, the country would be empty and would never have become 'Great' in the first place.
2
The DHS announcement on Thursday that aliens who arrive in the U.S. and seek asylum, will now await the adjudication decision in Mexico, based on a new bi-lateral agreement between the two countries announced by DHS Secretary Kirstjen Nielson.
This new agreement with Mexico brings into play a current U.S. immigration law exception. The exception is to the recently discussed "arrive in the U.S. by any means" provision. This Exception involves "Safe Third Country bi-lateral agreements" just like the one Nielson announced:
The AG, at their discretion, if there is a bi-lateral agreement between the U.S. and another safe country, have aliens arriving in the U.S. seeking asylum stay in such safe 3rd country until their case is adjudicated.
This new agreement with Mexico makes the above Exception applicable law and will impact recent Judge Tigar, 9th Circuit and yesterday's USSC decisions.
Immigration law implementation has changed.
Is the government shutdown about border security or a tactical maneuver by a clever political operator flogging the immigration issue for political gain? Were this discourse about immigration in a broader sense, then political leaders would set guiding principles for changes of laws, policies and practices. The debate over "border security" selectively magnifies a singular issue at the expense of addressing broader problems.
Immigration laws should serve national social-economic self-interest. For example, foreign students who receive degrees in the STEM fields from our best universities would be welcomed. Broad legal access for temporary or seasonal jobs would be granted to immigrant labor in industries such as farming and lodging. Lastly, the US would more effectively, yet selectively, serve as a refuge of last resort for immigrants facing life and death situations at home. To characterize these poor souls as criminals and terrorists is a gross distortion of reality.
If the reprehensible shut-down of certain federal agencies gives pause to reflect soberly on a broader overhaul of US immigration laws and practices, it will serve a grander purpose. Are you optimistic? I'm not.
2
Grateful, just grateful for this Chief Justice.
1
The ruling was released on Friday. The same day that RBG underwent cancer surgery. I'd be curious to know what medications RBG was taking at the time she voted and whether any of the medications had an impact on her faculties. In addition, she will presumably be recovering for a while and taking pain medications among others. Do we trust her to recuse herself if she is working in an impaired mental and physical state? Shouldn't we hear from some truly impartial doctors and psychiatrists as to whether she is capable of carrying out her duties?
The immigration conversation is one we ought to having in the 21st century. Yet we are further from being able to have this conversation than we were one week ago.
Are we going to continue to allow immigration problems to tear our nation in half?
4
“Extraordinary circumstances” sounds to me a lot like marshal law, suspension of habeas corpus and the assumption of dictatorial powers. All this with no more of a crisis than a authoritarian-wanna-be president creating his own self- serving, make-believe crises. TO THE BARRICADES!
I thought in the end the executive branch would not be able to override by fiat a clearly expressed federal law passed by the legislative branch. Why don't these conservative justices understand basic constitutional principles when these tenets are clear to a layman such as myself? It's not for lack of intelligence but for lack of desire.
1
I doubt that this Court will satisfy evil Christian conservatives. Rather the Courts concerns will be for increasing the power and freedom of the corporations - which it has been busily doing without much public attention.
Part of the problem may be a disagreement
over the criteria that is necessary to be granted asylum.
My understanding is that a successful asylum seeker must: (i) establish that he or she fears persecution in his or her home country and (ii) that he or she would be persecuted on account of race, religion, nationality, political opinion, or particular social group. I think that a lot of the dispute is the definition of "persecution" in both prongs of the test. Proponents of President Trump's position take a narrow view that the persecution may only arise from a government entity or individuals or groups that are associated or acting in coordination with the government . Opponents of President Trump's position insist that the persecution may arise from individuals or groups that are not necessarily associated or acting in coordination with, the government.
Perhaps a lawyer familiar with the case law can elaborate as to the more correct position.
1
@Schneiderman
Either way there is no persecution by the Mexican government or non-state actors where these migrants or refugees are now and so the need to enter the US by any means possible and specifically at non-designated ports of entry does not exist.
1
Trump is the best investment Putin ever made. He's destroying American institutions including the Supreme Court and at least Roberts has the good sense to recognize what is happening and to step in try to protect the integrity of court.
7
I don’t often look back with gratitude for things that GWB did, but his appointment of Roberts was fortuitous. Whatever Roberts’ personal convictions, at least he grasps the concept of the rule of law.
Please, please, no more Supreme Court vacancies inthe next couple of years.
17
Our refugee population is weighed heavily in favor of proximity -- which is why we give asylum mostly to Mexicans and Central Americans, many of whom complain of gang violence, a criminal problem that is not typical grounds for asylum.
Those most in need of asylum are political refugees from Syria, Afghanistan, South Sudan, Myanmar and Somalia. If our refugee policy corresponded with need and justice, these are the countries we would be focusing on. But Trump has made clear what he thinks of poor black and Muslim countries.
18
@michjas
The proper grounds for asylum is what is missing from this article, and so many on this topic. There’s a reason why it’s called “Political Asylum” and not “Economic Asylum” or “Gang Related Violence Asylum.”
The applicant must be able to prove a well-founded fear of persecution based upon his or her’s honestly held political beliefs or values. Someone fleeing gangs violence and poverty does not fit within the law.
5
Chief Justice Roberts has really put/brought "justice" to now...two critical rulings that he's made in siding with the liberal wing of the SC, first when he essentially saved the ACA, and now, with this vote. The only logical conclusion- at least to me- is that he intends to rebuke the more reactionary, political elements and intentions of trumpism, in a thoughtful, moderate attempt to ensure the high courts legacy of ruling in favor of...the good of the people, and basically rejecting some of the lower-case president's basest, more hateful politically driven instincts.
Thank you, Chief Justice!
29
@Scratching
Don’t be so quick to applaud Roberts on the ACA ruling. The only reason he upheld the ACA was because he saw it as within the power of Congress to impose taxes. Roberts did not see the ACA as authorized by Congress’s broader powers under the Commerce clause of the Constitution. In fact, Roberts took full advantage of the opportunity to limit Congressional power under the Commerce clause for later cases coming before the federal courts.
On the most recent ruling concerning asylum, don’t confuse a decision by the Supreme Court to temporarily leave in place a lower federal court’s injunction pending the full resolution of the appeal, with a ruling on the merits. This was a purely procedural ruling. Roberts and the other four simply said wait for the case to come up through the proper appellate route and leave the injunction in effect during that process. If and when the Supreme Court finally reaches the merits of the case, don’t be surprised if Roberts is on the other side of the fence.
2
I never thought of Justice Roberts as a swing vote. All I can say is thank you for allowing sanity to prevail. Trump thinks himself above the Constitution. He is not and it’s high time he learns its.
44
For SCOTUS watchers, this decision that aligns Roberts with the Court's four liberal justices is no surprise. With the notable exception of the Shelby v. Holder voting rights decision (invalidating the pre-cleance provisions of the Voting Rights Act), Chief Justice Roberts has put himself with the liberals. The first and perhaps best example is the Court's decision to uphold the Affordable Care Act's individual mandate. This is because Roberts is an institutionalist. As Chief Justice, he sees a primary role to protect the Court's integrity. His "lecture" to the President on the court's political neutrality was instructive; he does not want his Court (during his tenure it will always be known as the Roberts Court) to be reduced in history as merely a hack for the political right.
22
@Riley Temple
No, it puts Chief Justice Roberts on the side of the Constitution, which is where all the Justices should be. Good health and God bless RBG.
No legal expert am I. So let me get this straight. In the 5 to 4 vote, 5 voted to leave the stay from the lower courts in place and the four voted to stay the stay (Thank-you Gregory). One could imagine all sorts of future scenarios: Like a vote to stay the vote to leave the stay in place. That could result in a split vote with some voting to stay a vote to stay the vote to leave the stay in place. At the bottom of this immigrants seeking asylum hanging in there by one vote. Justice Roberts must have his hands full.
1
So much for the loudly touted claims that (drunken) Kavanaugh is a legal scholar who is fixated on following the "rule of law" instead of being an 'activist judge'.
The politicization of SCOTUS is the most profound achievement of the GOP. This completes their destruction of our always fragile democratic republic. We are now, clearly in the territory of autocracy.
22
If this major change must be made, it must be through a change in the law, with votes counted and assigned.
10
@MS StLouis Wrong. That is not what our Constitution and Bill of Rights, the documents upon which our whole political system are based, say. We can not vote away these foundations of our law. We have three branches of government, so that one can be a check upon the other two. The Constitution was written to make sure that NO ONE can usurp all the power in any one branch -- and, especially, not the Chief Executive. We do not have Emperors in America, who are allowed to "Rule" according to their own ignorant whims (we know this president DOESN'T READ. HE DOESN'T KNOW THE LAW. HE CAN'T FORESEE THE CONSEQUENCES OF HIS IGNORANT PROCLAMATIONS. That is why we have Congress AND the Courts, as well as the Executive branches. When we become so polarized that all branches of government follow only one despotic ruler, America hurts, as you will soon see, as trade is disrupted, ISIS is revived, the climate continues to deteriorate, people continue to suffer.
The commentary from the right on this issue is fascinating. For years, we've been told that the judiciary cannot be "activist." If Congress made a mess through legislation, it's Congress that must fix it - not the courts. Now, the right manufactures an "immigration crisis" then demands that the judiciary hand the President authority to "remedy" the crisis, without a bit of Congressional involvement You can be sure: There would be no such demand if the President were still named Obama -- instead there would be shouts about "executive overreach" if he did anything at all. The country does need measured, comprehensive reform, and it's a shame that the Republicans in Congress have failed for so long to step up to the plate. At least Justice Roberts has been relatively consistent in sticking to his general principles.
16
this is a situation in which our system shows its flaws not its strengths. So we are unable to deal with a crisis that burdens America with so many problems that our own laws will prevent us from solving it. Congress is unable to deal with it and the president does. The courts get in the way. never mind they feel free, in the 9th circuit, to interpret laws as they will, when it come to putting a black eye on trump they will read it verbatim. The problem is obvious, people we don't need or want are using our system to game it and burden this country with their problems. SOLVE IT NOW.
12
@Tony, people "we don't want or need" gaming our system? Are you speaking of anyone other than those in power? What happened to the statutes protecting people of all countries, races, religions attempting to immigrate and or just flee as refugees? I think your comments implies that King Trump should have the arbitrary nay fleeting power to decide for all of us; you know by tweets. I think we should let the courts and the public decide by vote or decision....but for all of us with compassion and fairness.
@Tony, what part of the law, as it is written is being gamed? Who are the people we don't need or want; and who is this "we" that doesn't need or want them? Maybe the problems that are burdening this country are yours?
@Tony And how long has your family been here? Do you think we are all descended from the Pilgrims? In between about 1880 and 1920, when your family probably came, White Supremacists wanted to sterilize your ancestors, so you wouldn't produce "scum" that would burden America. Who do you think Americans are? We are of all races and religions, all colors and kinds of workers; we are rich, we are poor -- and White people fall in both categories. What if the racists turned your people away when they came in droves? Where would you be, now? Get real!!!!!
“Any alien who is physically present in the United States or who arrives in the United States,” the relevant federal statute says, may apply for asylum — “whether or not at a designated port of arrival.”
How can four Supreme Court Justices, calling themselves conservatives, having pledged an oath to uphold the constitution and the laws of the United States, vote to allow the executive to unilaterally ignore the clearly stated law of the land? Strict constructionism is revealed to be a sham. The "conservative" Republicans have revealed their true colors. They are not interested in the rule of law, balance of powers or constitutional government. I am still at a loss to explain their motivations. It is not personal gain, it is not ideological purity, it can only be explained by racism and the ugly desire to preserve white male supremacy in the face of a multicultural world.
God bless Ruth Bader Ginsburg and keep her well!
39
Illegal Trump keeps losing in the courts. The courts are the only WALL stopping the fellow.
7
Thank you, Chief Justice Roberts, for helping preserve an independent judiciary and the rule of law in the United States at this very troubling time. History will show your principled and courageous stand, like those of Secretary of Defense Mattis, Special Prosecutor Robert Mueller, and Assistant Attorney General Rod Rosenstein was the difference between the continuation of our Founding Fathers' dream and the tyranny which has destroyed so many other democratic republics since ancient Athens.
11
I'll never be an associate on the Supreme Court, but given the law I understand that a "No" vote would be contrary to the relevant applicable statute, which the article reports as:
“Any alien who is physically present in the United States or who arrives in the United States may apply for asylum — “whether or not at a designated port of arrival.”
Could it be that Thomas, Alito, Grosuch, and Kavenaugh all had a few brewskis from Brett's cooler before voting?
9
Quite a wall, isn't it? Verges on having its own built-in ladder. In some parts of the border, it is no more than a few saggy strands of barbed wire between rotted fence posts.
We need more real wall, enhanced surveillance, and, especially, mandatory eVerify.
8
I reject comments below labeling this POTUS having issued unconstitutional orders.
This whole migration issue has become a football - and a political one.
Unfortunately, many of the so called Obama judges opened a Pandora's box by ruling first against this Executive over his enforcement actions of these laws. Even the 9th circuit - full if so called Obama judges - recognized this mess.
They even held - which even the 44th recognized - way over his paygrade - his DACA order.
These so called Obama judges essentially ruled that because the order is now de facto for a few years - it is now de jure.
The best thing our Chief Justice can do is tell his inferiors emphatically that they stay out of immigration debate and kick the ball to Congress.
6
Seems silly, approval or denial of asylum should be based the the merits of the request, not the GPS point of where you entered the US.
Although approval of trumps request would encourage asylum seekers to enter the US at regular ports of entry making it easier to monitor and control immigration.
It’s the responsibility of the US government to control and limit immigration. This is a good thing, the conflict we have now has its roots in the governments inability to control immigration at a reasonable level.
If the government had done their job from the beginning we would not be in this mess.
Another clear problem is the American appetite for drugs grown or produced in poor countries. Those people (users) are creating an environment of violence in these countries that’s spilling into our country.
My advice is stop all illegal drug activity in this country. The true un-patriotic Americans are the crack heads and meth heads who I’m sure would have voted for trump had they not they passed out on Election Day.
Final problem, the Supreme Court assumes Congress is a functional body which we know is not true.
1
@Scott Spencer Re your advice to "stop all illegal drug activity in this country", just exactly how do you intend to do this? By presidential fiat? By magic? How?
Regarding the 10 billion dollar wall...
Why has no one mentioned that a $45 Home Depot ladder will defeat it this wall? We will also have to set aside millions to constantly buy all the ladders in Mexico as they come up for sale. Will there be CIA agents deployed with fake mustaches and sombreros buying ladders all day long?
What about all the tunnels that already exist underneath it?
5
If months of walking thousands of miles over rough terrain in sweltering weather won’t deter these desperate asylum seekers from seeking refuge in the US, does anyone think a wall will?
10
Can you imagine a law more idiotic than our asylum law? If I want to get into the US, I can either present myself at a port of entry and see what happens, or I can just enter the US illegally by hopping the fence or coming across the Rio Grande.
If I'm not caught, I just blend into the scofflaw ecosystem of illegal "immigrants" already living here. But, if I am caught, I have a fallback position in the law, sanctioned by the courts: "My bad, I'm claiming asylum. It's OK to apply here, deep in the desert, right, now that I'm caught and all?"
10
“The United States has experienced a surge in the number of aliens who enter the country unlawfully from Mexico and, if apprehended, claim asylum and remain in the country while the claim is adjudicated, with little prospect of actually being granted that discretionary relief,” Solicitor General Noel J. Francisco told the justices.
----------------------------------------------------------------------------
In other words, people claim asylum, and then are released into this country until their court date is granted. Some do not show up, and BINGO, are in this county?
Wow. If anyone thinks we’re not being taken advantage of, think again.
10
@Moderate Republican I'll take that system over the dictatorial decisions of people like Stephen Miller and Donald Trump to determine who and who does not stay in the country. The country was founded to go the extreme to guarantee the rights of its people just as it was founded on the idea that all people could come here to live in liberty and with justice...for all. It does not say you must be a citizen to receive equal protection under the law.
While I am pleased that SCOTUS upheld the 9 Circuit, the coverage should note that this is not definitive of the final outcome. It’s a high hurdle for plaintiffs to get a TRO, but that just holds things in place until litigation is complete. Roberts gives lots of deference to lower courts on process, but that does not necessarily predict final outcome.
8
Chief Justice Roberts joined the four liberals on the Court and refused to block the temporary stay issued by the lower courts on Trump's actions.
No reasons given.
However, the case is not over.
The lower courts have yet to render their final decision --
but when they do, it can be appealed, and the Chief Justice -- and the other members of the Court -- will need to explain his reasoning in a little more detail.
Nonetheless, in the meantime, of course, it is a major tactical win for the pro-loosely-goosey-asylum regime crowd.
Time and money will need to be spent on the extravagantly elaborate "process" that the American legal system provides to those willing to undertake the time and cost of devoting it to their claims -- or able to get enough money from sympathetic parties to pursue it.
Of course, Congress can -- and ought to -- change the law--
-- both the "substantive" asylum law, to tighten up the grounds for asylum claims.
-- and the procedural law governing the power of lower courts in a single District or single Circuit to issue supposedly temporary orders with nationwide application.
But to get the Congress to do either one takes more political will than the Congress has shown so far.
Meanwhile, Trump can appeal to the people, and try to get them to put pressure on their Senators and Representatives -- and keep it front and center in every election.
The imprimatur of the courts may decide the actual case,
but it cannot stop the public debate.
6
@sam finn
In my view this has nothing to do with immigration or asylum. The issue is whether any president can ride roughshod over explicit law. And the answer should be 'no,'
9
@sam finn The courts are doing exactly what our founders envisioned in this case.
Yes, we can petition our elected officials. That is our right. But, for many years our system of immigration has worked, save for the errant mistakes, the exclusions of certain races and/or national origin (kinda like what Trump/Miller is doing now-brown people need not apply, especially Latino or Muslim). Our system is far from perfect, and, Trump tried to poke holes in our system and stoked the fears, many fears that are fiction. Yet, those fears struck a cord in many gullible persons.
Yes, please petition, however, at least, unlike the Robert's court, provide your rationale and base that rationale on fact, not Trump, Fox "News" or tin foil hat fiction.
6
Trump's latest unconstitutional effort to seize state power has been defeated, but only because the law is explicit in its wording. Wherever the law is less than clear, expect Trump to exploit the ambiguities to put him and his regime on top. The Democratic House entering in a matter of days will need to explicitly word legislation in the form of amendments to spending bills to bring Trump under close and careful supervisory control.
33
Even if congress could pass a rational and humane immigration law, would an often irrational and inhumane President Trump sign it? He insists that the solution is to wall ourselves off, is there any precedent that would lead us to believe that this would work? Will we have a future leader crying out, "Mr. President, Tear Down This WALL? We can't criminalize our way out of the situation. Bearing false witness against those who come in desperation won't fix it either. Just stop Mr. President, put down you iPad and stop.
29
I've noticed that there is so much bleeding heart rhetoric about Mexican immigrants, yet nothing of the sort for the persecution experienced by Chinese immigrants who are constantly accused of being spies. If it's wrong to assume that Mexicans are criminals, then it should be wrong to assume that Chinese are criminals, too. Unless, of course, the mainstream media and society are simply hypocritical.
13
@Sarah Johnson. We constantly read about Chinese scientists attempting to steal top secret information for China. There have not been any immigrants from south of our border in similar situations....they merely seek freedom to live and work...away from criminal gangs in their home countries.
4
I think it would be a good idea for you to research the logical fallacy known as the "straw man" argument, Sarah.
Literally millions of migrants from Latin America are routinely branded, by Trump and his base, as criminals. A tiny handful of Chinese nationals and Chinese-Americans have been accused of espionage and it has *never* been the case that *those* migrants and Americans have been widely assumed to be "spies."
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@Sarah Johnson
Thank you!
It'd be interesting to find out how many members of Congress, on both sides of the aisle, live in gated communities.
6:32PM CST, 12/21/18
5
Just maybe Roberts doesn't want to have his likeness etched into the walls of the Grand Canyon alongside Trump's once it is turned into a garbage dump.
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@greg
Or, perhaps he doesn't want to be remembered as the Chief Justice who was even worse than Taney.
As a "failing" catholic and new father. I don't even need to read this article. The photo says it all. Traitor Trump and his Republican acolytes are hypocrites that one can only hope are judged by the lord.
However, on the mortal plane, we await with glee Traitor Trumps day before justice. American's with any dignity, compassion, children or family, a shred of decency, will other shelter to those who seek it and open our arms, as Christ would, to those in need.
Traitor Trump and his Republican acolytes, have none of these qualities or need to turn a 360 and prove they do. They've had their chances and have chosen greed and self, over compassion and decency.
This isn't what was promised to me from my American upbringing and you can bet I haven't and won't stand for it my daily life.
For Traitor Trump to state his building a wall to protect "OUR" Country. Traitor Trump, this is America, it belongs to no one. It is rather governed by laws (Constitution) and those who fail to honor them, will reap the whirlwind of the real American Patriots.
Any American who sees this photo and can't recognize it as a family in distress, wanting more. Can pack their bags for Russia and we'll pay your ticket from OUR tax dollars.
Thank you NYTimes for your continued coverage of America, we're going to need you more than ever in 2019.
Godspeed
Godbless
and
Merry Christmas
41
I do not think you are failing. You care about your world and fellow citizens!
2
Seriously guys, stop whining about racism. Not everybody who wants secure boarders is a racist! If you don’t agree, move to Mexico. I hear there is no racism there.
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@Rose I have been to Mexico many times. I have never experienced the hate of Norte Americanos by Mexicans that Americans have of Mexicans (one must, however, not look at the spring breakers and their disrespect of the Mexican people in their own country). Perhaps it is that respect thing.
To deny there is no racism is fiction.
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@Rose
It's not about the security of the border. Really. It's about the political incompetence of the White House.
No one is voting for open borders. It's about the waste of $5 billion. Ever been down to the Rio Grande?
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@Rose
No worries Rose, let’s just build a wall on the Canadian border first and then we can see how it works there.
4
These photographs show just how desperate asylum seekers are. Can you imagine had bad it would have to be to flee your home - family, friends, church, possessions, everything? That could well be a photograph of Mary, Joseph, and Jesus.
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It seems most of the US immigration laws were made for a bygone age related to the Second World War.
7
The atrocities of the Second World War produced timeless and enduring lessons about Humanity.
4
Sometimes (with a smile) I have a sneaking suspicion that Justice John Roberts is the re-embodiment Justice David Sutor. Let's hope so!
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@Terry
Citizens United and Shelby County bely that notion.
1
I don’t trust Roberts any farther than I can throw him. He remains a died in the wool conservative on every issue, but he is a conservative who does not want a president to usurp the powers of Congress and the courts. He realizes that any precedent that allowed a president to usurp the other branches could be just as dangerously used by a Democratic president as a Republican.
12
@Michael McLemore - 'dyed-in-the-wool'
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@Michael McLemore There is truth in what you say but Roberts is a different kind of conservative than Trump's gang with no moral compass and idolaters of the $.
1
I think you have something there. Roberts is concerned about the legacy of the court in general and, especially, its legacy from his tenure as chief.
3
This excellent news will make my Christmas much brighter.
10
Is there any legal requirement that shields these people from arrest and detention for the illegal crossing even if they apply for asylum?
2
Justice Kavanaugh shows his true colors. Are we surprised?
6
This decision explains perfectly why we need a physical border barrier.
A wall/fence will prevent 99.9% of the people from entering illegally in the first place.
The picture accompanying this article is also visual proof of why we need bigger, stronger walls.
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@John. Are you planning on extending your walls far enough below the surface to block the hundreds of tunnels that currently exist?
4
@John Hogwash that 99.9% will be stopped. The vast majority enter legally and overstay their visas. Border apprehensions are dramatically down. This information is available from our, gasp, government. Not some "leftist" site.
Next up, how will you wall a moving border target-a river, a river subject to an international treaty? Bush 43 tried will little success. How will you wall extreme terrain found in the American Southwest? How will you secure the land? Years later there is still litigation over property.
Yup. Let's spend a lot of money on a folly.
4
Actually John you're wrong. Those poor folks are heading back because they realize how messed up the Drumph government has become. This is why they are crossing back over the tallest part. It's easier to climb than the treacherous, semi collapsed wall ten metres to their left.
2
This is clearly the right decision but given how immigration and refugees are resulting in the rise of right wing governments everywhere, and my lack of interest in living under a right wing government, I'm willing to throw America's welcoming reputation under the bus for a while. A couple of decades of open hostility to migration and illegal aliens will reset the position of the US in the minds of potential migrants and reduce its attraction. Less pressure at the borders will cool the hot fires of xenophobia. Democrats need to get onboard. We seem to be currently faced with keeping immigration as is and living under right wing rule as a result; or the Democrats accepting this change in heart and having a shot at power.
3
Keep opening your impetuous, reckless, and self-defeating mouth Mr. President. You're making a new, fifth "Kennedy vote" out of the Chief Justice.
8
Thank you to Judge Roberts for his vote.
Let’s pray that Ruth Bader Ginsburg survives her lung cancer so we can get some Sound judges appointed after 2020.
Praying for Justice Ginsburg.
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@Radha The doctors believe they removed it all with the nodules.So, after she recovers she should be free of problems from that cancer for a few more years.
I'm not sure that Roberts is concerned about the law. I think he will move more to the center in order to keep The Roberts' Court from mirroring Trump's ignorant ego, as the history books will no doubt tell.
6
It is frightening to see even the US slipping into a state of disrespect of the law. Why should people bother to enter legally when it is considered OK to enter illegally? This is what has happened in a number of European countries with horrifying results as it opens up for immensely lucrative immigrant smuggling. The consequences for the US are likely to be worse.
That a lower court has the right to literally trump the president is a serious flaw in the US system.
We can only support the president in his efforts to maintain law and order.
11
"a serious flaw in the US system"? Are you aware of the separation of powers? Don't you think that checks and balances are good for the country?@Steven at the 59th parallel
3
@Steven at the 59th parallel
We have a separation of powers in this country to keep one branch of government from taking too much power. The "lower court" , better known as federal district court, is there for that very purpose and has every right to serve as a check on presidential attempts to circumvent current law. When President Obama tried to extend DACA to family members, his decision was struck down for similar reasons. Did you protest that, too?
1
Trump calls Roberts an "Obama" judge, and this is meaningless. The statute speaks clearly.
9
Is that a wall they're climbing over? Not very effective is it?
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There is an attitude we could adopt...we have in the past, not always, but it's at the core of our American traditions. We could look to help people.
If someone enters the US and they are a bad actor, let's deal with them accordingly. But the vast majority of immigrants need our help. We could lend a hand. With unemployment so low, I would make the case that we need them.
And it is not immigrants who are shooting up schools, theaters and houses of worship, is it?
36
@Bob Bruce Anderson: you mean….like the Tscharneav brothers from Chechnya who bombed the Boston Marathon?
Or do you mean like Tashfeen Malik, the San Bernardino mass murderer?
2
The U.S. Government helped write this provision into the (European) Convention on Refugees in 1950 (that refugees generally arrive outside proper channels and therefore can't be turned back if they cooperate with the receiving authorities). When the convention went global in 1967, the U.S. became a party to it. It's the law.
15
How wonderful that the Chief Justice can still see the Law where the partisan conservatives on the court can only see who appointed them. The law has always been very clear; there is no room for even an ambiguous reading. trump simply wanted to be King with this "proclamation".
14
Four "originalist", "textualist" Judges clearly showed the fraud of these labels and laid bare their partisan, political, ideological stripes in rejecting to uphold the plain words of the statute.
Justice Ginsburg is resting in hospital having had malignant lumps removed from her lung. I pray for her in her own right but also for the sake of America.
82
This case presents a more difficult question than may first appear. It is true that the statute allows application for asylum regardless of the means of entry.
It is also true that other cases grant the president extraordinary powers in times of national emergency.
The question, which no one wants to state this bluntly is: “Can an ethically challenged president be allowed to gin up a phony crisis, so as then to be allowed to assert extraordinary powers?”
Immigration will always be a matter of intense national interest and debate. But it is not the sort of existential threat to the nation that should allow any president to cloak themself in the mantle of dictator, no matter how shrill and vitriolic the recurring rhetoric of anti-immigration nativists rises during times of debate.
13
@Michael McLemore This president has no problem ginning up some national security rationale when it suits him. And, it's encouraging that, after the "migrant caravan invasion" during the midterms, that some realized it was fraudulent. Mr.Trump is dangerous enough on any given day, without extraordinary powers.
First, a disclaimer: I believe the Court made the right call.
For those puzzled as to how 4 Justices seemed to be flouting a clearly worded law, here’s a legal perspective: the 4 Justices who would’ve granted the stay weren’t voting to uphold Trump’s policy, they were voting on whether to leave it in place (i.e., staying the lower court’s ruling) until the issue can be fully and properly adjudicated on appeal. Since the President does have broad discretionary powers with regards to national security, it’s not completely without merit to argue that he can, in extraordinary circumstances and for limited times, take emergency measures to secure our countries borders.
I do think the above argument for favoring broad, discretionary Executive powers would’ve ultimately failed given the extremely clear language of the statute, hence it made sense to simply leave the lower court’s ruling in place.
And yes, it is hard to ignore the political ramifications of Roberts siding with the liberal wing of the court on this issue at this time. And, if I’m being honest, it made my day to see the checks and balances working as they should!
20
@Gregory Scott, nicely explicated, thank you. I cannot see the rationale for leaving a policy in place that so clearly violates the applicable law before it has been fully adjudicated. For a (more extreme) example if the policy had been that anyone attempting illegal entry should be shot, would it be reasonable to leave that in place until the courts reached a final decision. It is only a matter of degree.
True to his word, Chief Justice John Roberts just demonstrated and personified his recent rebuke of Individual-1, in that, “We don’t have Obama judges or Trump judges, or Bush judges or Clinton judges. As he said, “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Bravo!
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@Steve Griffith
But we have 4 "originalists" who found that clearly written law can be usurped by Presidential authority.
Without written explanation we will never know the rational, but it appears that they believe the President has authority to "write" law.
So what's an originalist and where do they believe a President's power ends?
At the moment this seems to make zero sense, except that they are taking a political position.
3
We now know that we have at least one Supreme Court justice who bases decisions on the law instead of politics.
Thank you, Chief Justice Roberts.
104
Roberts needs to up his game in lobbying his conservative justices. It is hopeful to see this vote and at the same time, shocking that the vote was only 5-4 to rebuke Trump's anti-immigrant initiative.
There is nothing Trump is doing that is good for this country and the world. The Supreme Court must be a lifeboat of our ship of state and our democracy, not one of the icebergs.
69
Great news, but perhaps as good is that the Chief Justice sided with the more compassionate, and less ideologic, colleagues on the bench! Perhaps he can retain the rubric of The Roberts Court, instead of this court becoming known as the Kavanaugh Court.
And I hope this is a good Christmas present for the many women and children (families) attempting to request asylum here. Perhaps eventually the government can find money for something other than a border wall to get more immigration judges empaneled, improve detention centers for children, and otherwise return the US to a somewhat more civilized country, as we understand the Christmas message to be.
35
What is scary is the four Supreme Court justices would have granted a stay for what is clearly an illegal program. Sadly, far too often, the Supreme Court is about justices twisting the law to fit their politics
59
Is John Roberts seriously positioning himself as a centrist or at least not an ideological right-winger? We have had this happen before, as a justice starts seeing his own role or the position of being a justice on the Court differently. Perhaps Trump may now regret his attack on the Court...
17
@Roy Lowenstein
Sociopaths don't have regrets.
Sociopaths don't contemplate their actions.
Trump will do what sociopaths do; attack, vilify and destroy all that is good and decent in society.
7
The law is very explicit. I am puzzled as to how the four conservatives on the Supreme Court can believe otherwise ... this is hardly 'conservative' of them.
115
@WZ--these four are not jurists, they are ideologues who sold their souls to be on the Court.
1
I have been wary of Judge Roberts but this latest decision of his shows he understand what the framers of the constitution envisaged when they constructed three branches of the government. Roberts has grown as a Chief Justice. Long may he last. The nation needs him
50
Justice Roberts has a legacy to protect from a racist president who has neither shame nor restraint, when it comes to emptying this nation of minorities of all provenance, mistreating those he catches, and keeping the poor, huddled masses across our borders.
The law Trump tried to rewrite wasn't in place when my mother, her parents and brother came to this country. It took a special law in the U.S. Senate for them to legally enter our borders. At the time, America wasn't taking in Jewish refugees.
Before Trump, it was my hope that we never again would see a time when America has racist policies on its books and implements them.
We have a long way to go until we stop producing millions of voters with the Trump mindset.
---
Things Trump Did While You Weren’t Looking
https://wp.me/p2KJ3H-2ZW
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I hope the lawyers advising Trump on immigration policy are the same ones who advise him on impeachment or removal from office.
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@Suzanne Moniz He wouldn't listen anyway.
10