The Volokh Conspiracy
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New in Civitas Outlook: "SCOTUS's Immigration Rulings Chastise Trump on Morality"
"Mullin v. Doe should have been resolved on legal grounds without the need to virtue signal about immigration."
At the end of the term, there were so many blockbusters that two significant immigration decisions largely flew under the radar. Justice Alito wrote the majority opinions in Mullin v. Doe and Mullin v. Al Otro Lado. While I think both cases got the law right, I was troubled by some of the rhetoric that Alito used in Doe. My new essay in Civitas Outlook is titled, "SCOTUS's Immigration Rulings Chastise Trump on Morality."
Here is the introduction:
Last term, the Supreme Court ruled that the judiciary could not review the Secretary of Homeland Security's "determination" to suspend Temporary Protected Status (TPS) for Haitian and Syrian aliens. Mullin v. Doe was split by a right-left 6-3 vote. I think the majority had the better reading of the statute and the Constitution. Yet the Court didn't limit itself to the legal issues presented. Rather, Justice Alito's majority opinion regrettably chastised President Trump's rhetoric and his administration's immigration policies. Indeed, Justice Alito expressed something like remorse for ruling against the immigrants, perhaps in response to the dissent's fear-mongering claims. The Court reached the right result but was wrong to moralize to the President about how to conduct foreign affairs. This straightforward case should have been resolved on legal grounds without the need to virtue signal about immigration.
Ultimately, Justice Thomas was willing to say what the others were not:
Ultimately, something about the majority opinion in Mullin v. Doe is unsatisfying. The Court finds that the administration's decision to terminate TPS status was not subject to judicial review, and that Trump's comments about Haitians eating pets were not "overtly racial." I think the better approach can be found in Justice Thomas's solo concurrence. He observed that if "equal protection principles applied to immigration decisions, much of even our current immigration law would conflict with this Court's modern equal protection doctrine." Why? Because "our immigration laws have distinguished among aliens based on their national origin from the beginning." The government has long favored immigrants from some nations over others, without transgressing the Constitution. This policy should be constitutional.
The Court would have been much better off letting the federal government set its foreign policy with regard to immigration and not moralizing about how Americans—the President in particular—should view migrants. This decision, compounded with the birthright citizenship ruling, reflects a gap between the judiciary and the pressing issue of immigration that continues to divide the country. Hope springs eternal that the Supreme Court can correct course for next term.
To echo Senator Cruz's new book, Justice Thomas is always willing to go further. And as Judge Ho explains in a book review in National Review, going further invariably means standing alone, especially when Thomas takes the unpopular position.