January 28, 2020
Trump’s efforts to shut down immigration to the United States has been a full-on assault on the historic legal framework of immigration policy. Which means that almost every new administrative rule, executive order, and fiscal machination (to fund things Congress won’t) of this administration ends up in court. We covered a few of these cases in November. Some of the bigger issues - the future of Deferred Action for Childhood Arrivals (impacting 700,000 + people), and Temporary Protected Status for people from Haiti and El Salvador (impacting 200,000 + people) will be decided this year. For the time being, however, Trump’s efforts to end these programs have been blocked by the courts.
In other areas, the Supreme Court has overturned lower court injunctions, and allowed policies to be implemented, even as they are being fought out in court. This is the case with Trump’s transit ban - which, by denying asylum to anyone who passes through a third country before arriving at the U.S. border, seems a clear violation of existing asylum law. Nevertheless, the Supreme Court overturned a lower court injunction of this order, and now the policy is being implemented while also being challenged in court. While it may well be overturned, for now, people seeking asylum are being turned away at the border and/or deported to Guatemala (which agreed to receive asylum seekers under a bizarre “safe third-country” that is not a safe country agreement with the U.S.).
So, yesterday the Supreme Court did it again, allowing the administration’s new “public charge” rule to go into effect. From Vox:
The so-called public charge rule, published in August by the Homeland Security Department and originally scheduled to go into effect October 15, 2019, establishes a test to determine whether an immigrant applying to enter the US, extend their visa, or convert their temporary immigration status into a green card is likely to end up relying on public benefits. Opponents of the rule had challenged it on the basis that it flouts the narrow definition of what it means to be a “public charge” — dependent on government benefits — under federal immigration law.
In a 5-4 decision, the high court’s conservative majority voted to allow the rule to be implemented while legal challenges brought by the state of New York and immigrant advocacy groups proceed. Apart from Justice Neil Gorsuch, who derided lower courts’ attempts to block the rule before issuing final decisions, the justices didn’t elaborate on the reasoning behind the decision.
Immigration officials will now have much more leeway to turn away those who are “likely to be a public charge” based on an evaluation of 20 factors, ranging from the use of certain public benefits programs — including food stamps, Section 8 housing vouchers, and Medicaid — to English language proficiency.
Among other impacts, the Court allowing policies to move forward at the same time as they are being challenged in court sows confusion. People assume the Court has decided on the merits of the case in constitutional or legislative terms, when they have not. They have simply ruled on procedural issues related to the injunctions themselves. All of these policies may still be overturned, which is important to understand.
Likewise, it is worth revisiting the “Muslim” travel ban, as it is also still being fought in the courts. Yesterday marked three years since the Administration launched its first foray into blocking immigration - the effort to ban people from seven predominately Muslim countries from entering the United States. The case was immediately challenged in court, with the policy blocked, then re-written, blocked again, and re-written for a third time before the Supreme Court allowed a modified version to take effect. The future of the ban is still under court review - even as Trump prepares to launch a second ban, impacting seven more countries, five from Africa.
Marielena Hincapié, Executive Director of the National Immigration Law Center, which has been a party to the legal fight against the travel ban, wrote a reflection on the policy and its future for the @NILC_org/muslim-ban-3-year-anniversary-430201b87f2d">NILC blog yesterday - noting that today the courts will hear another challenge to the ban. She writes:
the Fourth Circuit Court of Appeals will hear arguments in our ongoing challenge to the latest version of the Muslim ban, which the U.S. Supreme Court allowed to remain in effect last year. This ban continues to separate families, leaving U.S. citizens unable to be with their children, spouses and parents, and preventing many people from entering the U.S. for career and educational opportunities or for life-saving health care. Tomorrow’s hearing is in the case International Refugee Assistance Project, et al. v. Donald Trump, et al., Iranian Alliances Across Borders v. Trump, and Zakzok v. Trump.
Despite the Supreme Court’s terrible decision, which history will judge to be a stain on its legacy, the justices did not actually rule that the Muslim ban is constitutional or that it isn’t discriminatory. The court simply said that it would agree to give strong deference to the executive branch on a preliminary question in a case that is far from over.
At the end of the article, Hincapié makes a strong appeal, which I want to lift up with a shout of full agreement.
If we are serious about challenging Trump, we need to keep battling in court and appealing to Congress to repeal the Muslim ban and other xenophobic policies like it. We need to keep holding vigils and being visible at protests.
But we also need to make change happen at the polls. And we need to demand more from the Democrats running for president. More than simply rejecting Trump’s agenda, the candidates must commit to truly transforming our approach to how we talk about and include immigrants in conversations of critical national importance — from health care, to housing, education, and climate change. Our ability to thrive together depends not only on holding Trump accountable, but also on truly changing how we treat our most marginalized communities.