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Trump Makes Three Pretty Offensive Arguments in SCOTUS Appeal on Asylum Ban


Late Tuesday, the Trump Administration petitioned the United States Supreme Court to reinstate the president’s asylum ban that has been struck down by both a California District Court and by the Ninth Circuit Court of Appeals.   In early November, Donald Trump issued a proclamation barring those illegally crossing the Mexican border from seeking asylum.

Trump’s command was immediately blocked by U.S. District Judge Jon S. Tigar, writing, “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”

Under American law, asylum is granted to non-citizens – regardless of point of entry — showing a “well-founded fear of persecution” in their home countries for reasons such as race, religion, political views, or sexual orientation. Now, making the case to SCOTUS that the president has unilateral power to change the standard for even requesting asylum, Solicitor General Noel Francisco made some eyebrow-raising arguments.

Advocacy groups shouldn’t be allowed to sue on behalf of refugees.

In immigration matters, as in many other areas of law, challenges to government policy often come in the form of lawsuits waged by advocacy groups on behalf of the voiceless. The litigants who challenged the president’s no-asylum proclamation were (of course) not the asylum-seekers themselves, but rather, the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR) – on behalf of those whose rights face existential challenges. This is nothing novel. Whether we’re talking about immigration, criminal defense, or parental rights, those who most desperately need legal assistance are rarely in a position to find and fund representation on their own. Advocacy groups such as the ACLU serve an important function in our legal world and constitute critical components of a functional adversarial system of law and government. Generally (and as was done by the lower court here), groups that specifically advocate on behalf of a particular population are granted “organizational standing” to fight on behalf of those they seek to serve.

However, the Trump administration is clear on its position – advocacy groups are not real plaintiffs; despite the lower court’s ruling to the contrary, the administration’s petition devoted several pages to its argument that the ACLU and CCR has no standing to even bring the underlying lawsuit. According to the government, the plaintiffs are nothing more than “lawyers represented by other lawyers.” Because the groups themselves “are not applying for asylum,” but rather, “seek to help others do so,” the groups are merely “bystanders.”

Such a position by the federal government is willfully obtuse to the point of outright absurdity. A requirement that refugees engage counsel prior to their crossing the U.S. border would be laughable if it weren’t so inhumane. A wholesale discounting of the legitimacy of the very concept of group advocacy transcends immigration concerns and strikes at the heart of litigation-based checks on government.

The government’s argument on standing may appear ordinary at first glance, but when viewed in relief, its meaning is repulsive. If only refugees themselves have proper standing to challenge an illegal order on asylum, then Americans have no choice but to remain bystanders to injustice – even when that injustice results from unlawful abuse of power by their own president. Whatever one’s thoughts about the content of Trump’s proclamation, a denial of the right to even challenge that policy smacks of what can best be described as “un-Americanism.”

Refugees won’t suffer any harm – but we sure will.

The nature of the government’s application requires that the administration demonstrate that it will suffer irreparable harm absent court intervention.  Trump’s ongoing rhetoric — a narrative of urgent crisis at the border– has laid a foundation for such a claim; but when analyzed under legal standards, the facts fall far short of supporting Trump’s position.

The government has alleged that without an immediate asylum ban, the American people will be harmed in a manner that is simply beyond repair. That’s a pretty bold claim given that we’re talking about individuals who are entering our country to escape mistreatment elsewhere. Remember – we’re talking about allowing people to apply for asylum. To ask. There is no legal right to be granted asylum, but there is a legal right to ask for it.

In most contexts (criminal defense, for one example), a denial of the right to be heard is unacceptable. Woven into the fabric of our legal system is the principle that real, tangible harm can result when an individual’s right to plead his case is delayed or deprived. In this case, though, the Solicitor General has turned that principle on its head. If Trump’s proclamation stymied the rights of asylum-seekers, this appeal goes even a step further; it blindly dismisses the idea that the refugees themselves will be harmed. Instead, it declares that the government and the public will suffer so profoundly at the hands of those asking for protection that we ought to prevent them from even asking.

America first, indeed.

American sovereignty hangs in the balance.

The federal government is peddling a story to SCOTUS wherein our strength as a nation is dependent on our ability to block Mexican refugees from requesting asylum, and whereby those raising the illegality of Trump’s actions are thwarting American supremacy:

The injunction frustrates a coordinated effort by the President, the Attorney General, and the Secretary to re-establish sovereign control over the southern border, reduce illegal and dangerous border crossings, and conduct sensitive and ongoing diplomatic negotiations.

In reality, though, the very concept of asylum is inextricable from that of sovereignty. Any individual on American soil – regardless of personal history or point of entry – is both subject and entitled to the requirements and protections of American law. Our lawmaking body has set forth rules regarding immigration and asylum, and those rules are meant to be obeyed no matter which corner of American soil one inhabits. The consistency of American law, applied to everyone within our borders, is the very essence of sovereignty. And while border-crossers present unique legal issues and challenges, there remains an underlying truth – that primarily, our laws define who we are more than they define those they affect.

At the core of this case, the government is requesting that SCOTUS permit the president to circumvent federal law by unilaterally changing it. Such a position threatens to erode our system of government not just for Trump and immigration issues, but for all presidents and all areas of law.

Foolish as the government’s argument about sovereignty might be, it’s hardly surprising. In fact, many of the Trump administration’s ill-formed legal positions are the result of a fundamental lack of acceptance of the concept of sovereignty as it relates to federalism. If this federal government cannot appropriately find its footing relative to the other states in our union, it’s no shock that it struggles to make the right choices on the world stage.

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos