WASHINGTON — The Supreme Court on Friday refused to revive a Trump administration initiative barring migrants who enter the country illegally from seeking asylum.
The court was closely divided, with Chief Justice John G. Roberts Jr. joining the four-member liberal wing in turning down the administration’s request for a stay of a trial judge’s order blocking the program.
The court’s brief order gave no reasons for its action. Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh said they would have granted the stay.
In a proclamation issued on Nov. 9, President Trump barred migrants from applying for asylum unless they made the request at a legal checkpoint. Only those applying at a port of entry would be eligible, Mr. Trump said, invoking what he said were his national security powers to protect the nation’s borders.
Lower courts blocked the initiative, ruling that a federal law plainly allowed asylum applications from people who had entered the country unlawfully.
“Any alien who is physically present in the United States or who arrives in the United States,” the relevant federal statute says, may apply for asylum — “whether or not at a designated port of arrival.”
Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order blocking the initiative nationwide. “Whatever the scope of the president’s authority,” Judge Tigar wrote, “he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.”
Mr. Trump attacked Judge Tigar, calling him an “Obama judge.” Chief Justice John G. Roberts Jr. took issue with the characterization, saying that federal judges apply the law without regard to the policies of the presidents who appointed them.
A divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, refused to stay Judge Tigar’s order. The majority opinion was written by Judge Jay S. Bybee, who was appointed by President George W. Bush.
“We are acutely aware of the crisis in the enforcement of our immigration laws,” Judge Bybee wrote. “The burden of dealing with these issues has fallen disproportionately on the courts of our circuit. And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place — Congress.”
The Trump administration then urged the Supreme Court to issue a stay of Judge Tigar’s ruling, saying the president was authorized to address border security by imposing the new policy.
“The United States has experienced a surge in the number of aliens who enter the country unlawfully from Mexico and, if apprehended, claim asylum and remain in the country while the claim is adjudicated, with little prospect of actually being granted that discretionary relief,” Solicitor General Noel J. Francisco told the justices.
“The president, finding that this development encourages dangerous and illegal border crossings and undermines the integrity of the nation’s borders, determined that a temporary suspension of entry by aliens who fail to present themselves for inspection at a port of entry along the southern border is in the nation’s interest,” Mr. Francisco wrote.
The American Civil Liberties Union, representing groups challenging the policy, said Congress had made a different determination, one that only Congress can alter.
“After World War II and the horrors experienced by refugees who were turned away by the United States and elsewhere, Congress joined the international community in adopting standards for the treatment of those fleeing persecution,” lawyers with the A.C.L.U. wrote. “A key safeguard is the assurance, explicitly and unambiguously codified, that one fleeing persecution can seek asylum regardless of where, or how, he or she enters the country.
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I had observed that attacking Federal Judges and dissing the Supremes and the Federal Courts as an institution was unlikely to help win the heart and mind of Chief Justice Roberts. Disturbingly, however, four of his colleagues appear to be ready and willing to hand the country over to Trump and Putin.
Stay well, RBG! The future of our American Republic depends on you and the your four colleagues who were willing to stand up for the rule of law against tyranny.
PWS
12-21-18