On Wednesday, the Supreme Court allowed Trump’s “third-country” asylum rule to go into effect. It’s the administration’s toughest barrier to asylum-seekers yet, and a lower court recently blocked the policy, but that doesn’t matter.
The administration went around the lower court and asked the Supreme Court to let it implement its bigoted policy while the case proceeds. It’s all part of what Justice Sonia Sotomayor calls the “new normal.”
The third-country rule functionally bars migrants from Honduras, Guatemala, and El Salvador from asking for asylum. That’s because they can’t ask for asylum here if they didn’t first ask for it in Mexico when they traveled through there to get to the U.S. However, Mexico is quite dangerous for refugees and in no way safe for asylum-seekers.
A lower court enjoined the policy from taking effect because it conflicts with the existing immigration statutes, violated the requirements of administrative rulemaking, and would have completely stopped asylum for people trying to enter at the southern border.
Rather than changing its haphazard and cruel policy, the administration asked the court to let the policy take effect anyway while the lower courts sort it out. The court did so, issuing a brief order that contained no explanation as to why they agreed to do so.
Sotomayor penned a dissent, joined by Justice Ruth Bader Ginsburg, saying that the stay should not have been granted. She pointed out that the general rule is that lower court decisions warrant respect, and the grant of a stay which effectively overturns the decision of the lower court is extraordinary.
Indeed, it’s extraordinary even to ask. The Supreme Court is not supposed to be used as a way for the government to jump the queue and ignore lower court litigation.
However, Trump administration is aware they have a friendly Supreme Court. Thanks to Justices Neil Gorsuch and Brett Kavanaugh, the court has a reliably conservative majority that behaves as if it is beholden to Trump.
That’s likely why this administration has made so many requests for emergency or extraordinary relief — asking the court to bypass normal procedures or lower court actions. Legal scholar Steve Vladeck tracked how many times the administration has done this, and found they’d made 20 such requests in the past two and a half years. The Bush and Obama administrations combined only made eight of those type of requests in 16 years.
That’s why Sotomayor calls the Court’s actions here “the new normal.” When the Trump administration asks, this Supreme Court is unusually inclined to say yes.