Thom Hartmann is a brilliant researcher, author, journalist, and blogger. He writes incisively about American politics.
In this post, he explains that the decision by the U.S. Supreme Court on immigration was not about who gets to cross the border but whether the President can ignore laws passed by Congress. The rightwing majority of six is constructing and reinforcing the theory of the “unitary executive,” which makes the Presidency more powerful than the other two branches. Since the Reagan era, rightwingers have embraced this idea. This was not the intent of the Founders, who designed a government in which there was no sovereign, no king.
The rightwing majority on the Court are Originalists when it serves their purposes (didn’t everyone carry a gun whenever they went shopping?), but they are not shy about ignoring the Founders when it serves their purposes.
He writes:
Something happened inside the Supreme Court chamber on Thursday that almost never happens: Justice Sonia Sotomayor was so disgusted by what the six radical, on-the-take Republican appointees had just done that she read her dissent aloud from the bench, and Justice Samuel Alito, who’d written the majority opinion, snapped back at her in real time, a breach of the Court’s normally stage-managed decorum that left veteran reporters in the room visibly startled in slack-jawed amazement.
On the surface they were fighting about asylum seekers. But Sotomayor understood, as Alito surely did, that the real question wasn’t who gets to cross the border: it was whether the laws Congress writes still mean anything once a neofascist, imperial president (like Alito and his peers want) decides he’d rather not follow them because he’s above the law.
To understand this — and why it’s so insanely radical — look carefully at what the Court actually did in the two 6-3 all-Republican immigration rulings it handed down yesterday morning.
Back in 1980, a bipartisan Congress passed the Refugee Act to bring American law in line with our promise not to send the persecuted back to be killed, and it laid out a specific, mandatory set of steps.
Under the law Congress wrote that year, a noncitizen who reaches our border and says she fears persecution gets referred for an asylum interview to determine the legitimacy of her fear of violence or death in her home country or the country she’s fleeing. The word Congress chose to write into the law was the administration “shall,” not “may,” hold that hearing and a judge “shall” make that determination.
On Thursday the Republicans on the Court, however, ruled that Trump can erase or effectively ignore that law by simply ordering border agents to physically block people on the Mexican (or, presumably, Canadian or at an airport arrival) side of the line, so they never technically “arrive in the United States” and the law never kicks in.
Sotomayor called the reasoning illogical, because it is. A person standing at the threshold of a port of entry has plainly arrived. The Republican Trump toadies on the Court, however, pretended otherwise so Trump’s racial enforcers could essentially ignore both the intention and the letter of the law that elected members from both parties in Congress wrote.
The second ruling is even worse, albeit quieter.
Congress (whose job is to write laws for the United States) created Temporary Protected Status (TPS) in 1990 for people who can’t safely go home, and it built in court review of whether an administration followed the required procedures before yanking that status away.
The Trump administration recently tried to strip TPS protections from hundreds of thousands of Black Haitians and brown-skinned Syrians as part of its “Make America White Again” program, and multiple lower courts found it had ignored those procedures the law requires, noting that Trump’s Haiti decision, in particular, was tainted by racial animus (hate of Black people from what Trump calls “shithole countries”).
As Amy Howe of SCOTUSblog wrote about Justice Elana Kagan’s reaction:
“Kagan called it ‘plain to see’ that race played a role in the decision to terminate the TPS designation for Haiti. ‘The evidence’ that the Haiti TPS beneficiaries ‘have offered,’ she stressed, ‘includes statements by the President so repellent and racially inflected that the majority declines to put them in print.’ But those ‘statements fairly shout,’ she said, ‘in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.’”
The Republican majority didn’t even bother to say if the Trump regime had or had not complied with the plain letter and clear intent of the law Congress passed. Instead, the six corrupt Republicans on the Court declared that no court anywhere in America is allowed to even ask if Trump, et al, are breaking that particular law (an oversight process by a court called “judicial review”).
As the American Immigration Council pointed out, that means even an openly illegal decision is now insulated from any review by any judge in the country, closing the courthouse door in a way that, in my opinion, even the most conservative of the Founders would have found astonishing and plainly unconstitutional.
Congress, in other words, wrote a law that told the courts to check the legitimacy of asylum seekers claims to determine if they can or cannot stay here and apply for legal status; writing such laws is what the Constitution requires of an elected Congress.
But the six radical justices that rightwing billlionaires have spent decades and hundreds of millions of dollars to get on the Supreme Court told all the rest of the courts in America to simply look away and ignore the law. They’re not allowed to enforce it any more, even though Congress passed it and a president signed it.
Robert Reich put his finger on it yesterday afternoon, noting in his excellent newsletter that:
“[A] majority of the current Supreme Court — the abominable Roberts Court — has bent over backwards to ignore those laws.
“This must be seen for what it really is — a systemic effort by the six Republican appointees on the court to shrink congressional authority and enlarge the authority of the executive branch.
“If there was any doubt before, there should be none now: The Supreme Court is part of the anti-democracy movement led by Trump and the billionaires behind him.”
This agreement with Trump’s racist efforts to purge America of Black and brown refugees aren’t only losses for those would-be immigrants. As Reich points out, these decisions are stripping power from Congress, from the basic idea that the people’s elected representatives get to write laws that the Constitution requires a president to obey.
The Court’s defenders will tell you I’m being unfair in that assessment, claiming that the justices are just neutral umpires reading statutes as written. But that’s a lie, and recent history proves it.
Back in 2021, this very same Court struck down Joe Biden’s pandemic eviction moratorium, the one keeping millions of struggling families in their homes during a deadly COVID surge, ruling that his CDC had reached “past what Congress allowed” and declaring that if such a moratorium were going to continue, Congress, and not the president, would have to specifically authorize it.
Just a few years later, the same conservative bloc reasoned its way to blocking Joe Biden’s student debt relief, insisting Congress would never hand a president that kind of authority without saying so in unmistakable language.
When a Democratic president acts, in other words, they read laws Congress has passed with a magnifying glass and demand crystal-clear permissions. But when Trump (or, presumably, future Republican presidents) wants to shred the asylum process or wants his immigration purges of nonwhite people placed beyond the reach of any judge, the magnifying glass disappears and the words suddenly bend whichever way Trump wants.
These six lawyers in robes started from the outcome that today’s captured hard-right MAGA Republican Party and its white supremacist Dear Leader wants and reverse-engineered their reasoning to reach it, and the reasoning changes from case to case because the only thing that has to stay fixed is who wins.
As Sotomayer wrote, pointing to that magnifying glass in her dissent to yesterday’s Mullin v. Al Otro Lado decision:
“The Court’s illogical interpretation [of Congress’ written law] is driven almost entirely by a fixation on a single word: ‘in.’”
And the consequences of these decisions aren’t merely academic: people will die because of the actions these corrupt Republicans just took allowing the President and his whiteness enforcers to ignore the statutes that Congress wrote, both parties passed, and presidents signed into law. As Sotomayor also wrote in her dissent:
“One woman who had fled Honduras after receiving death threats from gang members was beaten, cut, and knocked unconscious by an unknown man after being turned back from a port of entry. Another asylum seeker who was turned back at a port three times was later raped in the presence of her child.
“Those living in migrant camps were subjected to break-ins, robberies, and assaults, ‘fac[ing] serious harm at the hands of criminal organizations, including kidnapping, extortion, physical violence, and sexual assault.’ Some were ‘murdered in Mexico while waiting for an opportunity to be processed by U. S. officials.’
“Desperate to flee these conditions and secure the opportunity to apply for asylum, ‘[s]ome attempted to reach U. S. soil by other means,’ including by attempting to cross the border between ports of entry by trekking through deserts or swimming across the Rio Grande. Often, these efforts had tragic ends.
“One couple that grew discouraged after a month of waiting in a camp near the border decided to cross the river and ask for asylum once they reached U. S. soil, but they were caught in a swift current and drowned. Another woman also drowned, along with her 2-year-old son, after she gave up waiting in a tent camp and attempted to swim across the river. Hundreds of others have met a similar fate, and many more died crossing the desert along the southern border, all making 2020 and 2021 some of the ‘deadliest year[s] for migrant crossings’ in various regions of the southern border.”
I lived and worked in Germany in the 1980s, and you couldn’t be there in those years without feeling how the entire postwar refugee framework — in America and across postwar Europe — grew out of one unbearable lesson, that turning desperate people away at the door and sending them back to die is something decent nations swore they’d never do again.
In 1939, the United States turned away the St. Louis, a ship carrying 937 Jewish refugees fleeing Hitler’s Nazi Germany purge of all “non-Aryan” people. The ship returned to Europe where the Nazis seized its passengers, ultimately murdering 254 of them in the “detention centers” Germany ran in occupied countries.
Americans were horrified and humiliated as the story became known well after the war, and the Refugee Act of 1980 was our nation writing the promise that we’d never repeat such a horror into law; it passed with broad bipartisan support.
On Thursday of this week five unelected men and one unelected woman in robes decided that promise is now optional for a president who welcomes white South African “refugees” but wants to purge American of people whose skin is darker than his.
I’ve argued for years, including in The Hidden History of the Supreme Court and the Betrayal of America, that Republicans on this Court long ago seized powers the Framers never gave it, and have — since Nixon flipped the court to the right and appointed Lewis Powell (of Powell Memo infamy) in 1972 — spent the last fifty years using them on behalf of the morbidly rich and the party that serves them.
From Buckley in 1976 and Bellotti (written by Powell himself in 1978) through Citizens United in 2010, this generation’s Republican justices — each carefully placed on the Court by big money interests since the 1980s — rewrote our democracy and turned it into an auction; earlier this term they even gutted what was left of the Voting Rights Act to help solidify raw GOP political power.
Now they’re telling Congress its laws are merely suggestions whenever a Republican president disagrees.
Justice Louis Brandeis warned us a century ago that, “[W]e can have democracy in this country or we can have great wealth concentrated in the hands of the few, but we can’t have both.” The morbidly rich men who put these justices on the Court made their choice, and the justices are delivering for them, tearing another bite out of our democracy with every decision.
The good news is that the branch the Court just tried to sideline is the one closest to you. Ahilan Arulanantham, who argued the Syrian case, urged Congress to act to overrule the Court, and he’s right, because Congress can restore judicial review, can rewrite these statutes in language even Sam Alito can’t twist, can expand and rebalance the Court itself, and can be made to do all of it if enough of us demand it.
Call your senators and representative at 202-224-3121 and tell them a Court declaring Congress irrelevant is a five-alarm constitutional emergency: we need a judicial code of ethics for SCOTUS so they have the follow the same laws as all other federal judges must; impeachment hearings for Thomas, Alito, Kavanaugh, and Roberts; 18-year term limits; and a rapid expansion of the Court to at least 13 members to bring it into line with previous, historic ratios to other senior courts.
None of this changes unless ordinary people refuse to let it stand. So get loud, stay in it, and if this piece helped you understand what really happened yesterday, share it and send people to hartmannreport.com so more of us understand exactly what we’re up against, exactly who to hold responsible, and how.
