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What To Make Of The Supreme Court's Immigration Rulings


The U.S. Supreme Court gave President Trump another win on immigration when it allowed, for the time being, a new rule to restrict asylum requests at the southern border. Asylum-seekers must now ask for refuge in a country they passed through before they reach the U.S.-Mexico border. Now this follows a recent court ruling that permitted the president to transfer money from the Pentagon's budget towards construction of his border wall.

We are joined now by Stephen Vladeck, law professor at the University of Texas. Professor, thanks very much for joining us.

STEPHEN VLADECK: Thanks for having me.

SIMON: What do you make of this asylum ruling?

VLADECK: Well, I think that this is the latest in a series of, you know, what we would call sort of interlocutory or premature rulings by the Supreme Court that's not actually resolving the legality of these actions by the Trump administration, but that simply preserving the Trump administration's ability to enforce these policies while the lawsuits challenging those actions go forward - in the process, getting rid of injunctions by district judges that had frozen those policies, pending litigation, so basically letting the Trump administration have its cake while we proceed to decide whether it's going to be able to eat it as well.

SIMON: So it could in theory - it or another version of the legislation could come before the court again.

VLADECK: Yeah, so, I mean, I think there's a decent likelihood that this particular policy, which, you know, bars really a large percentage of potential asylum applicants from even applying for asylum, I think could very well end up in the Supreme Court maybe a year or two from now once the merits are fully litigated - first in the district courts, and then in the federal appeals court in San Francisco.

But I think that the key from the Trump administration's perspective is they'll worry about that then. And this allows the president, as he did on Wednesday, to claim victory, even though the Supreme Court has not actually sided with him on the merits. It's just allowing the policy into effect while the litigation progresses.

SIMON: And what about the court's ruling on the transfer of $2.5 billion in defense funds to help build a wall on the U.S.-Mexico border? This was a 5-to-4 ruling that overturned an appellate decision.

VLADECK: Yeah, I think it's part of the same pattern. I mean, I think whether it's with regard to the border wall, this latest asylum policy, the travel ban, you know, the Supreme Court has been very active. This is the 21st different time that the Trump administration has sought this kind of emergency relief called a stay from the Supreme Court in just over two and a half years. And, Scott, that's in comparison to 16 years of the Bush and Obama administrations, where the government only sought stays eight times. So we've seen a real uptick in aggressive behavior by the government, but we've also seen the court acquiescing in that aggressive behavior and allowing more and more of these controversial policies.

SIMON: Then how do you read the ruling the court made back in June where they didn't uphold what the administration wanted to do on the 2020 census form and include a citizenship question?

VLADECK: I mean, I think that's a good example of the difference between these threshold rulings on applications for stays and rulings on the merits. In the census case, you know, the court had sided with the government with regard to emergency relief early on in the litigation on multiple occasions, only at the end of the chain to actually rule against the government and to throw out the citizenship question.

And I think what that tells us is that it's hard to make predictions, especially about the future. And so, you know, the court should not necessarily be quite so confident that by allowing these policies to go into effect at this early stage that means it's going to uphold them at the back end. And if it's not going to uphold them at the back end, then I think, you know, there's reason to be more sympathetic to the district courts that are saying, well, why should we allow these policies into effect now if there's a reasonable chance that when they're ultimately resolved by the Supreme Court, the justices are going to strike them down.

SIMON: Stephen Vladeck is a professor of law at the University of Texas. Thanks so much for being with us.

VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.

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