Editorial: SCOTUS Has Changed Settled Law on Stays Endangering our Highest Principles | New Jersey Law Journal

 Our highest principles are at risk, as the Office of the United Nations High Commissioner on Refugees has warned in an amicus brief  before the Ninth Circuit.  That court heeded the message.  The Supreme Court may not. - gwc

SCOTUS Has Changed Settled Law on Stays | New Jersey Law Journal
by the Editorial Board - New Jersey Law Journal

World War II was followed by massive resettlement of refugees.  Millions were removed en masse as national boundaries were redrawn by the victorious powers at Yalta.  Some, like the Volga Germans were welcomed in their linguistic homeland, others like European Jews sought refuge and found themselves in a new conflict; in Eastern Europe collaborators with defeated powers and political enemies faced persecution at the hands of the victors.

Moved by that experience the United States and the member states
of the United Nations Organization composed the 1951 Convention on the Status of Refugees.   In 1980 we finally codified that commitment in the Asylum Act 8 U.S.C. 1158 which provides

To establish that the applicant is a refugee …the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

Regardless of point of entry anyone who can establish a credible fear of persecution is eligible to apply for asylum and have their plea decided by an Immigration Judge.

But the Trump administration, which centers much of its appeal on
opposition to immigration, has sought to block asylum applications.  Circuit Judge Richard Paez called the impact of Trump administration rules “staggering” and a “categorical ban on migrants who use a method of entry explicitly authorized by Congress.” When a United States District Court blocked two of its key rules and the 9th Circuit refused to stay the injunction the Supreme Court in September 2019 stepped in to allow the Rules to go into effect, blocking virtually all new asylum applications on the southern border.  Sonia Sotomayor dissented there in East Bay Sanctuary Covenant v. Barr.

In February in Wolf v. Cook County the Supreme Court stayed another injunction pending appeal - just one week before oral argument in the 7th Circuit regarding the so-called public charge rule.  The high court thereby permitted enforcement of the entry bar in Illinois.  Three weeks earlier in Department of Homeland Security v. New York the high court stayed a nationwide injunction against the new rule thus giving immigration officials leeway to turn away immigrants deemed “likely to be a public charge”.

The four liberal justices voted against both the Cook County stay and the stay of the nationwide injunction in the multi-state New York case.  Sonia Sotomayor issued another strong dissent.  She aimed at the majority, citing an essay in the Harvard Law Review by University of Texas law professor Steven Vladeck.  He showed that “in less than three years, [Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone)”.

Sotomayor was appalled, saying that "Stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay." The majority has changed settled law relating to stays in order to bow to the will of the executive.

The majority has failed in its duty. We are confronted by a wide assault on civil, democratic, and republican norms.  Our nation has commitments that require judges to rise to the occasion, not simply huddle and mumble platitudes about being above politics.   National commitments such as the 1951 Convention and the Asylum Act are of an importance as great as those we undertook in the post civil war Amendments to the Constitution.  As we face a time of great disorder the principle of openness to refugees from catastrophe and disorder is as important as is that of Equal Protection - and in fact is bound up with it.  What we need from our courts - high and low - is a commitment not just to calling balls and strikes but an embrace and vindication of our highest principles.

March 16, 2020