Justice Sotomayor issues powerful dissent to the Supreme Court's 'extraordinary' move unleashing Trump's harsh asylum rules

Justice Sotomayor issues powerful dissent to the Supreme Court's 'extraordinary' move unleashing Trump's harsh asylum rules
Official Portrait of Justice Sonia Sotomayor (Collection of the Supreme Court of the United States, Steve Petteway)

Justice Sonia Sotomayor wrote a forceful dissent issued Wednesday as the Supreme Court lifted an injunction on President Donald Trump's aggressive new asylum rules.


In lifting the injunction, the court allowed the administration to broadly deny asylum to immigrants who passed through another country — such as Mexico — and weren't denied asylum there. The Supreme Court didn't rule on the merits, but it issued a stay overturning injunctions upheld by lower courts as legal challenges to the policy make their way through the system. Eventually, the case will likely come before the high court.

It would only take five justices to grant the stay, but the unsigned order did not say how the court voted. Justice Ruth Bader Ginsburg joined Sotomayor's dissent.

"Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution," wrote Sotomayor. "Although this Nation has long kept its doors open to refugees—and although the stakes for asylum seekers could not be higher—the Government implemented its rule without first providing the public notice and inviting the public input generally required by law."

She bemoaned the fact that the court "acquiesces" to the Trump administration's efforts to push forward with this move.

There are three reasons why the lower district court concluded that the rules were likely in violation of federal law and thus that an injunction was warranted, Sotomayor explained.

First, the court found that the new rules likely conflict with existing asylum law. Second, the Trump administration "skirted" the usual process for making new rules — by, for example, not allowing for a period of public comment. And third, the district court believed the Trump administration's new rule was likely "arbitrary and capricious" because its arguments in favor of the policy are "flatly refuted" by the evidence.

Lifting the injunction in such a case would be "extraordinary," Sotomayor — and such requests used to be quite rare. Now, the Trump administration makes these demands on the court all the time, and the court plays along.

"It is especially concerning, moreover, that the rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in," she wrote. "I fear that the Court’s precipitous action today risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency."

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