In late December 2018, the Supreme Court refused to immediately reinstate the Trump administration’s asylum policy of denying asylum to migrants who unlawfully cross the border from Mexico.
Chief Justice John Roberts, a traditionally conservative justice, was the swing vote, joining the four liberal justices in the majority decision.
Chief Justice Roberts was appointed by President Bush in 2005. After Justice Kennedy retired from the court, Roberts became the most ideologically centered of the justices and will likely be the deciding vote in many of the more controversial cases the Supreme Court hears.
When the lower court judge originally blocked the new Trump policy in November, Trump retaliated by calling Judge Jon S. Tigar of the United States District Court in San Francisco an “Obama judge.” Chief Justice Roberts was quick to respond, noting, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges…[having an] independent judiciary is something we should all be thankful for.”
Judge Tigar issued a temporary restraining order on the policy as well as a preliminary injunction. Tigar wrote in the initial ruling, “Whatever the scope of the president’s authority…he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
The Justice Department’s Steven Stafford responded, saying the administration would not back down. Stafford said, “The court has not yet fully considered the merits of this case…we will continue to defend the executive branch’s lawful authority over the discretionary benefit of asylum.”
Lee Gelernt of the American Civil Lierties Union said, “The Supreme Court’s decision to leave the asylum ban blocked will save lives and keep vulnerable families and children from persecution…We are pleased the court refused to allow the administration to short-circuit the usual appellate process.”
The law, as written, says that “Any alien who is physically present in the United States or who arrives in the United States” can apply for asylum “whether or not at a designated port of arrival.”
Washington University in St. Louis professor, Stephen Legomsky, argues, “the statutory language is so clear…the only surprising thing for me is that four justices were willing to stay the injunction.”
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