If you enjoyed the legal battle over three different versions of the so-called “travel ban,” get ready for the fun of Asylum Ban 1.0. Using the same legal argument that ended up prevailing at the Supreme Court on the order restricting visas from a handful of failed states, Donald Trump signed an executive order this morning suspending all grants of asylum for those entering the country illegally. It’s the first major move on the migrant “caravans” marching northward through Mexico since before the midterm elections, although it might not actually apply:
President Trump signed a proclamation Friday morning banning migrants who enter the country between official ports of entry from seeking asylum in the United States. Officials from the Department of Homeland Security and Justice Department told reporters that the proclamation would go into effect at 12:01 a.m. Saturday and be in effect for 90 days.
On Thursday afternoon, administration officials released the text of an interim regulation outlining new restrictions on asylum seekers at the border in anticipation of the president’s proclamation.
The interim rule, which will be published in the Federal Register and open for public comment Friday morning, establishes “a mandatory bar to asylum eligibility” for refugees crossing the southwestern border between official ports of entry. It contains a finding that granting asylum in those circumstances “would be detrimental to the interests of the United States.”
During a call with reporters Thursday afternoon, senior administration officials explained that Trump would be exercising the same “use of authority that the Supreme Court upheld in Trump v. Hawaii,” better known as the travel ban case, to make such a determination about migrants who enter the U.S. from Mexico.
In one sense, this makes perfect sense. The proper way to apply for asylum is to make that application at an official border crossing, at which point the US government can grant temporary entry while considering the application. Those who cross illegally have essentially violated the integrity of that system by denying US sovereignty over its own borders. A lot of people try claiming asylum after getting caught across the border, and the EO would eliminate that dodge and force people to apply lawfully.
That, however, is exactly what the caravans claim they will do. Their spokespeople and the media have reported all along that the thousands of people involved plan to eventually present themselves at border crossings and demand asylum properly. What then? In the past, these movements have resulted in massive delays and bottlenecks at border crossings, but eventually the US has managed to sort through the applications and make the decisions. Presumably, the massive increase in logistical support from the military will help unravel that when the caravans arrive.
The White House will undoubtedly find itself in court, perhaps as soon as today, over this EO. They’re preparing a defense based on alternatives available to migrants, but the New York Times reports that critics have already begun pushing back:
Lawyers for immigration advocacy organizations said they violated a founding principle of federal asylum: to judge each person’s asylum claim on its own merits. And the lawyers said federal and international law made it clear that the United States must provide immigrants the opportunity to claim asylum regardless of whether they entered the country legally or illegally.
Trump administration officials defended the new approach, saying the president is responding to statistics that show that most migrants who seek asylum are eventually denied — but not before many of them skip their court hearings and choose to illegally stay in the United States.
Once the president makes a proclamation identifying who is barred by the new regulations, an official said, those people could apply for two other, smaller programs that are much less likely to result in them being allowed to stay in the United States.
An administration official who briefed reporters said the two programs would satisfy the United States’ treaty obligations — a claim critics say is not true. The official, who spoke on the condition of anonymity to provide details of the rules before they are published, said the new regulations were supported by laws that gave the president broad authority to control who entered the United States.
The problem for the critics is the same one they eventually failed to overcome in the travel-ban case. The Immigration and Nationality Act gives the president very wide latitude to issue proclamations that suspend entry of aliens or impose “restrictions he may deem to be appropriate.” In Trump v Hawaii, Chief Justice John Roberts wrote that the INA “exudes deference to the President in every clause”:
It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. The Proclamation falls well within this comprehensive delegation. The sole prerequisite set forth in §1182(f) is that the President “find[ ]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here. He first ordered DHS and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline. He then issued a Proclamation with extensive findings about the deficiencies and their impact. Based on that review, he found that restricting entry of aliens who could not be vetted with adequate information was in the national interest.
Even assuming that some form of inquiry into the persuasiveness of the President’s findings is appropriate, but see Webster v. Doe, 486 U. S. 592, 600, plaintiffs’ attacks on the sufficiency of the findings cannot be sustained. The 12-page Proclamation is more detailed than any prior order issued under §1182(f). And such a searching inquiry is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. See, e.g., Sale, 509 U. S., at 187–188.
The Proclamation comports with the remaining textual limits in §1182(f). While the word “suspend” often connotes a temporary deferral, the President is not required to prescribe in advance a fixed end date for the entry restriction. Like its predecessors, the Proclamation makes clear that its “conditional restrictions” will remain in force only so long as necessary to “address” the identified “inadequacies and risks” within the covered nations. Finally, the Proclamation properly identifies a “class of aliens” whose entry is suspended, and the word “class” comfortably encompasses a group of people linked by nationality.
In other words, challenges to this order are not likely to succeed, especially since this order focuses on aliens who have already violated the law. The only way to change this would be to rewrite immigration laws — and the only way to do that would be to bargain with Trump and the Republican majority in the Senate.
That is the ultimate aim of this EO, not stopping the migrant caravans. Trump is using his executive authority to its full extent under statute to pressure Democrats to agree to his four-pillar deal on DACA and the border wall. Will it work? Maybe, but the White House is likely betting more on its challenge to the recent DACA decision in the Ninth Circuit. If the Supreme Court allows Trump to dismantle DACA, then Democrats will have no choice but to cut a deal or to cut their “dreamers” loose.
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