US president Donald Trump, born into a wealthy real estate development family, probably hasn’t waited in line much in his lifetime. And he certainly doesn’t do it now. So it’s of little surprise that more than any other president before him, Trump jumps to the front of the judicial queue, seeking emergency relief with the Supreme Court whenever he feels thwarted by district or circuit court judges.
The most recent case in point is a matter challenging his July interim rule to deny entry to asylum seekers at the Mexican border if they have “declined to request protection at the first opportunity,” meaning if they traveled through another country where they could theoretically have applied for asylum. The US Supreme Court on Sept. 11 granted the Trump administration’s request for emergency relief, lifting an injunction on the new restriction—initially placed nationwide by a California district court judge and then narrowed by the Ninth Circuit Court of Appeals—while the matter plays out in the lower courts.
The grant allows the administration to implement its new rule throughout the ongoing lower court proceedings and assumes the matter will make its way back to the Supreme Court for review, although it doesn’t promise to take the case. In a somewhat cryptic docket entry on the court’s website on Wednesday, it noted, “If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.” No opinion was attached to the docket entry, which notes only that justices Sonia Sotomayor and Ruth Bader Ginsburg opposed granting the administration’s requested stay.
While the high court did not actually affirm the legality of the restrictive rule, it’s certainly an interim win for the president and his hardline immigration policies. Challengers argued that the new restriction is a major change to asylum law and policy and would, in effect, bar all asylum applicants at the border except Mexicans (who wouldn’t pass through any other country to reach the US), thus threatening the lives of countless people in danger. Asylum seekers, unlike other migrants, enter on the basis of a credible fear of persecution at home, based on their status in a particular group—they are refugees whose basis for fleeing isn’t merely economic. Any changes to policy must be approved by congress, the challengers said.
The administration, on the other hand, argued that the new rule is necessary to deal with the “crushing burden” of migration at the border, calling the situation an emergency. But it seems the Trump administration is in a constant state of emergency.
According to a July Harvard Law Review article, Trump continually resorting to the high court is not at all normal. During the first two-and-a-half years of this administration, the solicitor general has sought emergency or extraordinary relief from the Supreme Court “with unprecedented frequency,” applying for at least 20 stays of lower-court rulings. In the 16 years before Trump took office, the government sought only a total of eight stays.
Nonetheless, the court is reviewing these emergency applications, which makes for a very busy “shadow docket” in addition to the official business of reviewing final decisions by lower courts. ”[S]uch an approach is radically out of kilter with the court’s approach to the rest of its docket,” writes Stephen Vladeck of the University of Texas Law School in the article. “The justices have repeatedly emphasized, especially lately, that “[o]urs is ‘a court of final review and not first view.'”
Still, as the latest grant shows, Trump won’t stand in line and, apparently, he really doesn’t have to.