And rightfully so.
Just recently, the Supreme Court of the United States issued a stay against a preliminary injunction from a lower court thus allowing the Trump administration to proceed with its asylum rule. The rule, formally entitled “Asylum Eligibility and Procedural Modifications” (the “Rule” or the “third country transit bar”). The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country.
There is no doubt in this writer’s mind that the rule is the brainchild of Trump adviser Stephen Miller, a subject of a previous blog, “Who Is This Stephen Miller Guy.”
A headline of an op-ed piece published by Politico and written by David S. Glosser, Miller’s uncle, reads:
“Stephen Miller Is an Immigration Hypocrite. I Know Because I’m His Uncle”
Miller once wrote,
“When I entered Santa Monica High School in ninth grade, I noticed a number of students lacked basic English skills. There are usually very few, if any, Hispanic students in my honors classes, despite the large number of Hispanic students that attend our school.”
Or in other words, Hispanics are dumb.
Former senior vice president, John Burness, of Duke University, where Miller attended, said that, while at Duke, Miller…
“…seemed to assume that if you were in disagreement with him, there was something malevolent or stupid about your thinking—incredibly intolerant.”
But enough about Miller.
Typically, when a defendant requests relief of a lower Court’s injunction, the Supreme Court does not write a majority opinion, but Justice Sotomayor, under the “extraordinary” circumstances, felt it necessary to weigh in.
In her dissent, her Honor used all decorum in her wording worthy of the dignity of her office. She ended with,
“I respectfully dissent.” Justice Ginsburg concurred.
Her words are in sharp contrast to what Donald Trump once said about Justice Ruth Bader Ginsburg,
“an incompetent judge!” , “has embarrassed all by making very dumb political statements about me” , “Her mind is shot” , “resign!”
There were multiple aspects of the SCOTUS ruling with which Justice Sotomayor took issue.
She writes,
“[G]ranting a stay pending appeal should be an ‘extraordinary’ act. Unfortunately, it appears the
Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harvard Law Revue (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here.”
Because the Supreme Court is the final word on any legal dispute, it typically refrains from issuing an order letting lower court judges wrestle with new legal questions. If the Supreme Court acts prematurely its erroneous decision could last forever because no higher court can overrule the justices.
The following is from a piece written for Vox by Ian Millhiser,
“The most interesting part of Sotomayor’s dissent may be the citation to a forthcoming law review article by Stephen Vladeck, a law professor at the University of Texas. In that piece, Vladeck notes that Trump’s Justice Department has been far more aggressive than its predecessors in asking the Court to intervene at early stages of litigation.’To take one especially eye-opening statistic,’ Vladeck writes, ‘in less than three years, the Solicitor General has filed at least 20 applications for stays in the Supreme Court (including 10 during the October 2018 Term alone (T)he Court’s denial of relief has come summarily and with no public opprobrium — no
suggestion from the Court, or any of the Justices, that the Solicitor General is abusing his
unique position, is taking advantage of his special relationship, or is otherwise acting in a
manner unbecoming the office he holds.’
Sotomayor’s rebuke appears to be the first public indication that a justice is not happy with this state of affairs. “
One needs to read between the lines as to why the Solicitor General has had to file 20 applications for stays. It’s because numerous entities such as state Attorneys General, the ACLU et al have sued the Federal Government on constitutional grounds. Remember the “Travel Ban” aka Muslim ban. Many of Trump’s Executive Orders and rulings are steeped in bigotry, prejudice and outright bending truth with “alternative facts.”
The only “National Crisis” at the southern border is the one Trump created.
Another issue at hand is the legal basis for the lower court’s preliminary injunction.
The case is EAST BAY SANCTUARY COVENANT, et al., Plaintiffs, v. WILLIAM BARR, et al., Defendants. Case No. 19-cv-04073-JST. United States District Court, N.D. California.
The injunction notes,
“Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress (my emphasis). Congress has empowered the Attorney General to establish additional limitations and conditions by regulation, but only if such regulations are consistent with the existing immigration laws passed by Congress. This new Rule is likely invalid because it is inconsistent with the existing asylum laws.” – Jon S. Tigar, District Judge
Addressing this issue, Justice Sotomayor writes,
“Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although this Nation has long kept its doors open to refugees—and although the stakes for asylum seekers could not be higher (my emphasis)—the Government implemented its rule without first providing the public notice and inviting the public input generally required by law.”
She further adds,
“Now the Government asks this Court to intervene and to stay the preliminary decisions below. This is an extraordinary request. Unfortunately, the Court acquiesces. Because I do not believe the Government has met its weighty burden for such relief, I would deny the stay.”
At this point, it should be noted what the inscription on the Statue of Liberty reads:
“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”
The spirit of this poem written by Emma Lazarus is a fundamental tenet of our democracy. We ARE a nation of immigrants. To say otherwise is blasphemy.
The targets of Trump’s asylum “rule” are refugees from Honduras, Guatemala and El Salvador. Three countries in which the death rate is the highest on the planet outside of a war zone. Deaths from gang violence, domestic violence, government and extra-judicial execution squads.
In many cases, to send these people back to where they came from would be a death sentence.
Footnote:
In EAST BAY SANCTUARY COVENANT, et al., Plaintiffs, v. WILLIAM BARR, et al., Defendants, the et al(s) after Barr are a descending by rank list of directors and commissioners of DOJ, Homeland Security and Immigration departments. Of the nine people, all men, four are acting directors or commissioners. This is an example of the large number of positions in the Trump administration that are empty through resignations or firings (usually by a tweet from Trump). Most recently National Security Advisor (3rd one), John Bolton (fired) and Secretary of Defense, General James Mattis (quit).
Trump is already on his second AG and Deputy AG, Secretary and Deputy Secretary of State with about a dozen undersecretary positions still unfilled, Secretary of Labor (Jeffrey Epstein scandal), Secretary of Interior, Secretary of Homeland Security (3x), U.N. Ambassador, Secretary of Health and Human Services, ICE and CBP, EPA, FEMA, Director and Deputy Director FBI, CIA, and so on.