Between the pandemic and the threats of military force against US citizens, it’s easy to forget that the Trump administration reserves its greatest cruelty for nonwhite immigrants. And it’s easy to forget, in the wake of last week’s narrow ruling to uphold the DACA program, that the Supreme Court has been largely willing to give constitutional cover to this bigotry and xenophobia. But Trump’s antipathy for black and brown immigrants never takes a day off. And the courts consistently let him get away with it.
This week’s reminder of this country’s wanton cruelty toward immigrants comes from the Supreme Court’s decision in DHS v. Thuraissigiam. The court ruled, by a vote of 7-2, that the Constitution doesn’t allow an asylum seeker to petition for a writ of habeas corpus.
The victim in this case is Vijayakumar Thuraissigiam. He’s a Sri Lakan national who was stopped and arrested 25 yards into the country. He claimed asylum, which he is legally allowed to do. Thuraissigiam is Tamil, a minority ethnicity in Sri Lanka, and claimed to fear persecution if he were deported back to Sri Lanka. An asylum officer rejected his claim as part of the expedited review that all asylum applicants now face.
The Trump administration has gone to great lengths to prevent asylum seekers from appealing these expedited rulings. If an asylum officer and immigration judge determine that the asylum seeker has no “credible fear,” they can be deported without the right to appeal the judge’s determination. We give people more opportunities to appeal a parking ticket than we give asylum seekers opportunities to appeal rulings affecting their basic human rights.
To fight the ruling against him, Thuraissigiam turned to a novel legal approach. He petitioned for a writ of habeas corpus. The government is not allowed to jail people indefinitely without a hearing: Thuraissigiam argued that denying him an opportunity to appeal the expedited process of deportation deprived him of due process and this fundamental right to challenge his detention.
But according to the Supreme Court, only Trump and the executive branch gets to decide who gets rights and who does not. Writing for the majority, Justice Samuel Alito found that expedited deportation without appeal was not a violation of due process or habeas corpus.
Alito even found time to be flippant about the matter. He wrote that Thuraissigiam could be free today if he would just go back to where he came from: “While respondent does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka.” It’s clear that Alito doesn’t actually care whether Thuraissigiam has a legitimate asylum claim. He just wants him in a cage or out of America, by any means necessary.
The effect of Alito’s ruling is devastating to asylum seekers. Without an appeals process, people in Thuraissigiam’s position have no functional rights. They can be arrested for crossing the border without the proper documents, detained until a Custom and Border Protection agent gets around to reviewing their claim, have that claim denied by an immigration judge (who is not really a “judge” but a federal employee who works for Attorney General William Barr), and then detained indefinitely until the government boots them out of the country. And all of this can be done without their ever getting to talk to a lawyer, because asylum seekers have no constitutional right to an attorney.
This kind of sadism is nothing new from Alito, or Republicans generally, particularly when it comes to victimizing immigrants. But, as I mentioned, the vote in this case was 7-2. Two of the liberal justices, Stephen Breyer and Ruth Bader Ginsburg, came to the same conclusion Alito did. Breyer wrote separately, joined by Ginsburg, to explain their reasoning. Or to try. The problem is, they didn’t really succeed; they just spent a lot of time explaining how Alito’s decision should be limited to the case at hand and not extended to any class of immigrant the Trump administration wants to round up. But as to Thuraissigiam, Breyer and Ginsburg found that he has no fundamental right to challenge the ruling against him.
Their concurrence was maddening. Breyer and Ginsburg seem to understand that Alito’s logic will be applied to all asylum seekers—and could be applied to any undocumented person living in the country, including people with families who have built their lives here, and even legal permanent residents. They get the problem, but they still accepted Alito’s result.
Only Justice Sonia Sotomayor, joined by Justice Elena Kagan, stood in dissent of this ruling. Sotomayor wrote:
[T]he Court holds that the Constitution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to determine whether they may seek shelter in this country or whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance. In doing so, the Court upends settled constitutional law and paves the way toward transforming already summary expedited removal proceedings into arbitrary administrative adjudications.
Put more simply: Sotomayor is pointing out that the courts are now supposed to take the Trump administration’s word for it on which immigrants should be deported and which ones still get to have human rights.
Sotomayor is the justice who consistently highlights the bigotry of the Trump administration for what it is—and is willing to call the whole corrupt operation out on it. It’s Sotomayor who wrote the dissent here, as she did in the case of the Muslim ban. It’s Sotomayor who wrote a separate, concurring opinion in the DACA decision to defend the equal protection claim for Dreamers, as opposed to the narrow “Trump did it wrong” reasoning offered by Chief Justice John Roberts.
Sotomayor is trying to wake people up to the racism of the Trump administration’s anti-immigrant legal policies, something even her fellow liberals fail to grasp and that the Supreme Court has been only too ready to rubber-stamp.
One of the worst Supreme Court cases in American history was Dred Scott v Sandford. In that case, decided in 1857, the court ruled that a black man who had lived in a free state was still a slave and that African Americans were not, and could not be citizens, of the United States. Chief Justice Roger Taeny infamously wrote that a black man “had no rights which the white man was bound to respect.”
DHS v. Thuraissigiam will not be remembered as poorly as the Dred Scott decision, because it will not spark a civil war. But the legal effect is nonetheless monstrous. I almost wish Alito had the courage to write plainly what he was really thinking: A border crosser has no rights which the white man is bound to respect. At least more people would notice what just happened.