Central American migrants walking to the U.S. start their day departing Ciudad Hidalgo, Mexico, Sunday, Oct. 21, 2018. (Getty/AP/Salon)

Supreme Court sides against President Donald Trump in asylum ban case

This is the second major setback to Trump's immigration policies in roughly a month

Shira Tarlo
December 24, 2018 8:54PM (UTC)

The Supreme Court on Friday upheld a federal judge's order blocking President Donald Trump's ban on asylum for immigrants who attempt to cross the southern border illegally.

The court voted 5-4 to leave a lower court ruling in place that rejected Trump's asylum policy. Chief Justice John Roberts, a conservative judge who was appointed by Republican President George W. Bush, voted with the court's liberal wing. Justice Ruth Bader Ginsburg, one of the court's liberal judges, voted on Friday before undergoing surgery to remove two cancerous nodules from her left lung at a New York City hospital.


Newly confirmed Justice Brett Kavanaugh, along with the court's three other conservative justices — Clarence Thomas, Samuel Alito and Neil Gorsuch — sided with the president's administration. Neither side of the court offered an opinion explaining their decision.

The decision leaves in place a lower court ruling that halted the president's proclamation, which stated that only asylum claims made at official points of entry would be considered, until the merits of a lawsuit against the move can be argued in federal court. Migrants who enter the country without going through official border crossings would automatically be denied asylum under Trump's proposed rule change. The move by the administration, which was put in place in November, was implemented in an attempt to tackle a so-called caravan of migrants traveling from Central America to the U.S. that Trump has called a "national emergency."

This is the second major setback to Trump's immigration policies in roughly a month. In November, U.S. District Judge Jon S. Tigar temporarily blocked the Trump administration from refusing asylum to migrants who crossed the southern border illegally if they do not arrive at a point of entry.


In his temporary restraining order, Tigar, who was nominated to the bench by former President Barack Obama, said Trump's order violated existing federal law that requires the government to consider asylum requests for anyone who manages to enter the U.S. — no matter how.

"The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress," Tigar wrote. "Whatever the scope of the President's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden."

Trump swiftly railed against Tigar's ruling, questioning his impartiality by calling him "an Obama judge." That remark generated a rare and biting retort from Roberts, who said the U.S. does not have "Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them."


Shira Tarlo

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