Supremes’ memo to lower courts: presidential power trumps leftist lawfare

This Supreme Court term, now in its final few days, has been focused above all on executive power.

President Donald Trump has pushed the envelope of his authority, and the court has generally let him do so — except, as in the tariffs case, when he treads on clear congressional prerogatives.

And even though the justices have yet to rule on the biggest presidential-power cases on their docket — birthright citizenship and the removal of the heads of “independent” agencies — three immigration rulings this week showed their overriding emphasis on robust executive power to counteract left-wing lawfare.

On Tuesday, in Blanche v. Lau, the court found that the Immigration and Nationality Act doesn’t require a border officer to admit a lawful permanent resident who was charged with a crime into the country.

Instead such a person can be “paroled,” which suspends his or her green card and allows for more expeditious deportation if convicted.

On Thursday, the court in Mullin v. Al Otro Lado found that an alien standing in Mexico does not “arrive in the United States” by attempting, and failing, to set foot in this country.

In other words, the justices ratified the common-sense understanding that someone “arrives” here only when he is actually inside the country’s borders.

That’s important, because the INA gives the right to apply for asylum only to aliens who are in the country — a requirement that lower-court judges were looking to thwart.

Finally, in Mullin v. Doe (consolidated with Trump v. Miot), the court found that the judicial system lacks the authority to review procedural claims against ending Temporary Protected Status for Syrians and Haitians.

That’s because the text of the INA puts the designation or termination of TPS status wholly within the discretion of the president and his appointees.

Moreover, the justices ruled that the plaintiffs’ constitutional claim — that Trump’s move to sunset TPS was impermissibly race-based — is weak.

Indeed, wrote Justice Samuel Alito in his majority opinion, the plaintiffs’ posture “undermines [their] equal protection claim by offering a strong, race-neutral explanation for Haiti’s termination: namely, that the current administration, which has terminated every TPS designation that has come up for renewal, simply opposes the TPS program.”

Each of these cases was decided 6-3, with the Republican-appointed justices in the majority.

That means that in every case, the Democratic-appointed justices proved unwilling to defer to executive determinations, even those made under the discretion outlined in the INA’s text.

Each time, they supported legal challenges that are actually policy disagreements — disputes over what the rules should be regarding who can enter the country, how they do so, for how long and for what purpose.

The Mullin v. Doe decision in particular was a clear scolding of that lawfare project.

Lower courts have repeatedly blocked TPS terminations in a way that upended executive prerogatives, acting as a one-way ratchet for liberalized immigration policies.

“Although designed to afford ‘temporary’ relief,” Alito noted, “TPS designations in practice have often lasted for decades.”

That’s why the Supremes took the cases before the DC and Second Circuits could rule on the merits — as a dynamic response to district courts’ judicial resistance to what they consider to be the administration’s “anti-immigrant agenda.”

But it’s not up to courts to make immigration determinations.

Whether you like what this or any other administration does in the immigration space, Congress has legislated, for good or ill, in a way that gives expansive power to the executive branch here.

On this point, Justice Alito quoted the late DC Circuit Judge Laurence Silberman, who was in turn quoting the important 1950 Supreme Court case United States v. Shaughnessy: “Control of the country’s policy toward aliens is inherent in the executive power to control the foreign affairs of the nation.”

So Mullin v. Doe strengthens the executive and streamlines its ability to conduct policy, not least in being able to make “temporary” humanitarian relief actually temporary.

Next week, as it issues this session’s last few rulings, the court is likely to allow the president to remove the heads of agencies — because he’s the head of the executive branch.

Yet it’s also likely to prevent him from unilaterally changing birthright citizenship, whatever the constitutional or policy merits of challenges to that longstanding rule.

Neither of these moves will be a surprise: The first, because executive power is broad over executive-branch operations and the discretion that Congress has legislated; the second, because executive power is far more narrow when it comes to actually changing the law.

Ilya Shapiro is director of constitutional studies at the Manhattan Institute and author of the Shapiro’s Gavel newsletter.