Washington, D.C.

The Court Will Hear It

On Friday the Supreme Court agreed to decide whether the Trump administration may suspend access to asylum at the southern border. The case is Mullin v. Refugee and Immigrant Center for Education and Legal Services. As SCOTUSblog reported, the justices will review a D.C. Circuit ruling that struck down the policy as an overreach, and they will also consider how broad a lower court’s relief may be. They declined to take up a separate question about the class itself. Argument is expected in the spring; a decision is due by the end of June.

The policy began on Jan. 20, 2025, with a presidential proclamation declaring that “an invasion is ongoing at the southern border” and suspending the entry of noncitizens “engaged in the invasion.” The Department of Homeland Security then issued guidance that, among other things, barred those covered from applying for asylum and provided for rapid removal with fewer statutory procedures. A federal district judge, Randolph Moss, threw the guidance out. A D.C. Circuit panel, in an opinion by Judge J. Michelle Childs joined by Judge Cornelia Pillard, held that when Congress gave the president power to suspend entry, it did not give him “the expansive removal authority” now asserted, or leave him free to “cast aside federal laws affording individuals the right to apply” for asylum or withholding of removal. Judge Justin Walker dissented in part. The circuit court stayed its own ruling pending appeal, so the restrictions have remained in effect, NBC News noted.

Two Texts, One Border

Federal law says that a noncitizen “may apply” for asylum “irrespective of … status.” The administration, through Solicitor General D. John Sauer, tells the Court that suspending illegal entry and precluding asylum is “the most important and effective” piece of the president’s response, and that the president may deny such applications and therefore need not accept “futile” ones. The challengers answer that the president may not invent, by fiat, a new removal system that eviscerates protections Congress wrote, and they argue that by January 2025 border apprehensions had already fallen sharply from their peak.

Those are the arguments. Lucid will not pretend the Court has already ruled. Lucid will say this, as opinion: a nation has a right to a border, and Congress has a right to be the one that rewrites the asylum statute. If the law on the books is unworkable, the honest remedy is a new law, not a proclamation that treats the old one as optional. If the law is workable and the executive is simply impatient, impatience is not a constitutional theory. The justices now have to say which of those things is true.

The Lights and the Docket

The Court takes the case just as a new Congress, won by Democrats last week, prepares to arrive. On Thursday night, Justice Samuel Alito told a Federalist Society dinner that Congress “can turn off the lights of the Supreme Court and stop everything from happening if they will not fund their activities,” and that judicial independence must be preserved, per NBC News. He also said some lower-court judges had gone “far astray” with sweeping orders against presidential initiatives. The warning and the grant of review arrived in the same news cycle. A republic that wants both a border and a Court should keep its statutes clear enough that neither has to improvise in the dark.

References

• SCOTUSblog: Supreme Court agrees to hear the asylum-suspension case
• NBC News: Supreme Court to rule on Trump’s asylum ban
• NBC News: Alito warns Congress could ‘turn off the lights’

Photo by APK via Wikimedia Commons, licensed under CC BY-SA 4.0; cropped and color-adjusted.