Justice Samuel A. Alito
It was a bad, bad week for immigrants at the nation’s highest court, a naked display of power and xenophobia where the Supreme Court conservatives started with their—well, President Donald Trump’s—desired result and worked backward.
In a brutal series of 6-3 decisions, the conservatives upended settled law in favor of making Trump’s brutal anti-immigrant crackdown the law of the land.
With these three decisions, in the space of just a few days, the Supreme Court removed due process protections for green card holders, functionally eliminated asylum claims at the U.S.-Mexico border, and ensured that the Trump regime can deport people who have legally lived and worked here for years.
Thursday’s majority decision in Mullin v. Al Otro Lado—it cannot be overstated—is going to kill so many people. But for Trump, that’s a feature, not a bug.
In the ruling, Justice Samuel Alito goes through a tortured bad-faith reading of immigration statutes to get to his decision that the administration doesn’t need to process asylum claims if it doesn’t feel like it.
Here’s how Alito got there.
The asylum statute says that a noncitizen who “arrives in the United States, whether or not at a designated port of arrival” and seeks admission “shall be inspected by immigration officers” and “may apply for asylum.”
Now, you, a normal person, would likely read that to mean that Customs and Border Patrol is required to inspect those noncitizens and allow them to apply for asylum when they reach the border, but you are not Samuel Alito.
Per Alito, that statute means that no one “arrives in” the United States until they set foot in the country, and CBP agents can block them from setting foot in the country and refuse to ever let them apply for asylum, for any reason, even if they have the capacity to process the entry.
On its face, this is a dispute about how to interpret statutes. In reality, it means that the United States is free to refuse to ever let anyone apply for asylum for any reason—which was always the goal of the Trump administration.
As Justice Sonia Sotomayor points out in her dissent, this is an abandonment of the policies adopted by the United States and other countries following World War II.
In 1939, refugees who were fleeing Nazi Germany were turned away by Cuba, the United States, and Canada. They were eventually returned to Europe, where more than 250 eventually died in the Holocaust.
But under the majority’s decision, Sotomayor writes, “if the refugees on the M.S. St. Louis were to walk up to a port of entry on our southern border today, the majority’s interpretation would allow immigration officers to refuse even to consider their asylum applications by physically blocking them from stepping foot onto U.S. soil.”
She also points out that blocking asylum claims by refusing to let people set foot in the country has created a massive humanitarian crisis at the border. People have died while, in desperation, attempting to enter the country without presenting at the official border.
Dangerous migrant camps have been set up on the Mexico side of the border, where people are routinely subject to kidnapping, sexual assault, and murder at the mercy of criminal organizations.
The practical result here is that the United States is now allowed to ignore the international obligations to allow people to seek asylum—no matter what danger or persecution they face—even if they will be killed.
Meanwhile, Mullin v. Doe—which considered the administration’s ability to strip Temporary Protected Status designations—was expected to be bad, but that doesn’t make the ruling any less gruesome.
Writing for the conservative majority, Alito got to really dig in on his belief that Trump’s vile racism against Haitians isn’t actually evidence that removing their TPS designation is motivated by racial animus.
But the decision wasn’t limited to that; it also made sure to foreclose other ways to challenge the administration’s actions, along with all of the racism.
The conservative majority held that there’s no judicial review of a decision to remove TPS designations unless it’s a constitutional claim. Put another way, plaintiffs can’t challenge the decision even if the administration failed to follow any of the procedural requirements under the statute.
In theory, the decision could still be challenged on constitutional grounds, which is what the Haitian plaintiffs did here—alleging that the elimination of the TPS designation violated their equal protection rights because it was openly and obviously motivated by Trump’s racist hatred.
But Alito said nope. You see, despite Trump—and Vice President JD Vance—making any number of high-profile racist statements about Haiti and Haitians, it isn’t actually racist for … reasons.
Indeed, Alito was too chickenshit even to memorialize what, exactly, Trump said about Haitians in the runup to the removal of the designation, instead vaguely waiving it away.
“None of the cited statements by either the President or the Secretary was overtly racial, and in substance all expressed policy views that could rest on race-neutral justifications,” he wrote. “For example, one may oppose TPS and favor tighter restrictions on immigration for economic or other reasons that have nothing to do with race.”
Hmm. What sort of race-neutral statements are we talking about here? Justice Elena Kagan’s dissent includes Trump’s statements, an attempt to at least preserve the historical record in the face of the majority’s attempt to wipe it out:
- Haitians are “eating the dogs … they’re eating the cats. They’re eating—they’re eating the pets of people that live [in Ohio].”
- Haitians in the U.S. “probably have AIDS”
- Haiti is a “shithole country” which is “filthy, dirty, and disgusting”
- Haitian immigration is “like a death wish for our country”
- Haitians are “poisoning the blood”
- “Why is it we only take people from shithole countries” like “Haiti [and] Somalia?” “Why cannot we have some people from Norway [and] Sweden?”
The majority believes that these comments aren’t racist, apparently because Trump did not announce before saying them, “I am about to say something that’s super racist.”
The insulation from judicial review is equally absurd. As Kagan pointed out, now the Homeland Security secretary can “announce to the world that she didn’t consult with anyone—more, that she didn’t evaluate country conditions at all—before making, extending, or terminating a TPS designation. And the courts will be powerless to intervene.”
The practical and immediate effect of this is that more than 330,000 Haitians under TPS can be removed immediately, and 1.3 million people from more than a dozen other countries are in limbo.
Haitians will be sent back to a country that our own State Department still lists as “do not travel” for Americans because it’s too dangerous.
Fun fact: Justice Amy Coney Barrett, like a lot of creepy tradcaths and evangelicals, did some white savior garbage and adopted two children from Haiti—but still signed on to this racist bullshit about her own kids.
Tuesday’s decision about green card holders, Blanche v. Lau, rounds out this racist anti-immigrant trifecta. Writing for the court’s conservatives, Justice Clarence Thomas held that immigration officers don’t actually need to have clear and convincing evidence that a green card holder has committed a crime of “moral turpitude” to block them from reentering the country after a trip abroad. They just have to feel like they committed a crime.
“The Court ruled that a CBP official—not a criminal court judge or jury, and not even an immigration judge—can unilaterally make a finding that having been charged with a crime is tantamount to having committed that crime, prematurely stripping that individual of the full rights of legal permanent residency,” Sarah Paoletti, director of Penn Carey Law’s Transnational Legal Clinic explained.
So now asylum seekers can be refused entry based on vibes. TPS holders, all of whom are here legally, can be deported based on vibes. And green card holders can be denied reentry based on vibes.
It’s all disingenuous bigotry dressed up as even-handed, rational, sober-minded statutory interpretation. But it’s anything but.
This is straight-up racism—and under this Supreme Court, it’s increasingly the law of the land.
Reprinted with permission from Daily Kos
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