They don't even try to hide it anymore
Robert Reich in Inequality Media
Markwayne Mullin vs. Al Otro Lado concerns a
1917 law that requires immigration officers to inspect noncitizens who arrive
at ports of entry to determine whether they may enter the United States.
Congress amended the law in the Refugee Act of 1980 to allow noncitizens
fleeing persecution in their home country to apply for asylum as part of this
inspection process.
The act lays out a required set of procedures to guide this
process. It says that a noncitizen who seeks admission to the United States
“may apply for asylum.” If the noncitizen lacks valid travel documents, the
officer “shall order [her] removed” unless she conveys an
intention to apply for asylum or a fear of persecution, which in turn requires the
officer to “refer” her for further processing of her asylum application.
This system is designed to ensure that the US government
considers the application of each person seeking to come into the United States
to determine who should be let in, who should be turned away, and who should be
allowed to apply for asylum.
This must be seen for what it really is—a systemic effort by the six Republican appointees on the court to shrink congressional authority and enlarge the authority of the executive branch.
But the Supreme Court’s majority held that a president may circumvent these requirements simply by having US immigration officers stand at the border and physically block noncitizens from setting foot on US soil—even if the asylum-seeker is certain to be persecuted, or killed, if she is turned away.
What happened to the Refugee Act of 1980 and the specific
procedures outlined in it? The Supreme Court ignored it.
The other decision released today, Markwayne Mullin
vs. Dahlia Doe, concerns another law, part of the Immigration Act of
1990 called Temporary Protected Status. For over a decade administrations have
provided humanitarian Temporary Protected Status relief to Haitian and Syrian
nationals coming to the United States.
Today, the Supreme Court’s majority held that federal courts
may not review the Secretary of Homeland Security’s compliance with that law.
But in fact the Immigration Act of 1990 specifically allows judicial review of
whether the secretary adhered to the procedures the law requires—exactly what
the plaintiffs disputed.
It would be easy to see these two cases solely through the
lens of immigration—and conclude that the Supreme Court’s decisions Thursday
simply backed Donald Trump and
his fanatical underling Stephen Miller’s commitment to block noncitizens from
the United States or to force them out. And surely these are the consequences
of both of the rulings.
But the decisions are even darker and more dangerous than
this. Even in the face of two laws in which Congress instructed the executive
branch to do certain things, a majority of the current Supreme Court—the
abominable Roberts Court—has bent over backwards to ignore those laws.
This must be seen for what it really is—a systemic effort by
the six Republican appointees on the court to shrink congressional authority
and enlarge the authority of the executive branch.
If there was any doubt before, there should be none now: The Supreme Court is part of the anti-democracy movement led by Trump and the billionaires behind him.
© 2025 Robert Reich
Robert Reich is professor emeritus of public policy at Berkeley and former US secretary of labor. His latest book is the No. 1 New York Times best-seller, "Coming Up Short."
