‘Biased’ conservatives on Supreme Court allow Trump administration’s ‘public charge’ rule to go into effect pending appeals (updated)


Back in January, the U.S. Supreme Court let Trump administration’s ‘public charge’ rule to go into effect pending appeals.

On Friday night, the Supreme Court removed the last remaining obstacle to immigrant ‘wealth test’:

The Supreme Court on Friday night removed the remaining obstacle to the Trump administration’s plan to implement new “wealth test” rules making it easier to deny immigrants residency or admission to the United States if they might depend on public-assistance programs.

Although legal challenges will continue on the merits of the policy in lower courts, the justices voted 5 to 4 to remove the last remaining judicial order blocking the new standards from going into effect while those battles play out.

Lady LibertyCritics say the rules, which the administration plans to begin enforcing Monday, replace decades of understanding and would place a burden on poor immigrants from non-English-speaking countries.

A judge had blocked the administration from implementing the new standards in Illinois, and the Supreme Court’s decision dissolves that order. As is common in such emergency applications, the majority did not explain its reasoning.

By the same 5-to-4 vote last month, the court had gotten rid of an injunction imposed by a judge in New York that blocked the changes elsewhere in the country.

The court’s four liberal justices dissented then and Friday, and Justice Sonia Sotomayor said the court was violating its own rules about when to step into the legal process.

Mark Joseph Stern, legal correspondent for Slate writes, Sonia Sotomayor Just Accused the Supreme Court’s Conservatives of Bias Toward the Trump Administration:

On Friday evening, by a 5–4 vote, the Supreme Court allowed the Trump administration’s wealth test for immigrants to take effect in Illinois. All four liberal justices dissented from the order, which changes relatively little: Thanks to the conservative justices’ intervention in January, the wealth test was poised to take effect in 49 states, and Friday’s vote lets the government apply it in the last state left.

Official Portrait of Justice Sonia Sotomayor

What’s most remarkable about the decision is Justice Sonia Sotomayor’s withering dissent, which calls out—with startling candor—a distressing pattern: The court’s Republican appointees have a clear bias toward the Trump administration.

Trump’s wealth test marks a brazen attempt to limit legal immigration by forcing immigrants to prove their financial status to enter, or remain in, the United States. It goes far beyond any statute passed by Congress, forcing immigrants to demonstrate that they will be not a “public charge”—that is, they won’t rely on any public assistance, including Medicaid, housing vouchers, and food stamps. Because the policy departs so dramatically from federal law, several courts blocked its implementation in 2019.

In January, however, the Supreme Court allowed the wealth test to take effect over the dissent of all four liberals. The majority did not explain its reasoning. But Justice Neil Gorsuch, joined by Justice Clarence Thomas, wrote a concurrence complaining that a district court had blocked it across the country, decrying the “rise of nationwide injunctions.”

Gorsuch’s opinion raised the possibility that the conservative justices disapproved of the scope of the district court’s injunction, not the reasoning behind it. If that were true, the conservatives should not have unsettled a narrower injunction limited to Illinois. But they did just that on Friday, once again without explaining themselves.

Once again, the liberals dissented, but only Sotomayor wrote separately, in an opinion notable for its caustic tone and candid assessment of her colleague’s prejudices. “Today’s decision follows a now-familiar pattern,” Sotomayor began. “The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists—even though review in a court of appeals is imminent—that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.” In other words, SCOTUS rewarded the Department of Justice for short-circuiting the appellate process and demanding immediate relief.

“But this application is perhaps even more concerning than past ones,” Sotomayor continued. Previously, the DOJ “professed urgency because of the form of relief granted in the prior case—a nationwide injunction.” Now there’s no nationwide injunction, so there’s no apparent “urgency.” The DOJ “cannot state with precision any of the supposed harm that would come from the Illinois-specific injunction, and the Court of Appeals for the Seventh Circuit has scheduled oral argument for next week.” Yet SCOTUS lifted the injunction anyway. “It is hard,” Sotomayor wrote, “to say what is more troubling: that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.”

Normally, “to justify upending the normal rules,” the government “must also show a likelihood of irreparable harm.” And “it has not made that showing here.” But this shortcut to SCOTUS has become “the new normal”; it has happened over and over and over again, as the DOJ leapfrogs over the lower courts to seize a victory at the Supreme Court. Sotomayor explained:

claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each. And with each successive application, of course, its cries of urgency ring increasingly hollow.

But the Supreme Court’s conservatives repeatedly accept the DOJ’s declarations of an “emergency,” giving Donald Trump whatever he wants.

This practice, Sotomayor wrote, has “benefited one litigant over all others”: the Trump administration. And the injustice of this favoritism is especially painful in light of the court’s recent refusal to halt unconstitutional executions. “This Court often permits executions—where the risk of irreparable harm is the loss of life—to proceed,” Sotomayor noted, blaming death row inmates for their ostensible failure “to raise any potentially meritorious claims in a timely manner.” She concluded:

Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances—where the Government itself chose to wait to seek relief, and where its claimed harm is continuation of a 20-year status quo in one State. I fear that this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.

Put simply: When some of the most despised and powerless among us ask the Supreme Court to spare their lives, the conservative justices turn a cold shoulder. When the Trump administration demands permission to implement some cruel, nativist, and potentially unlawful immigration restrictions, the conservatives bend over backward to give it everything it wants. There is nothing “fair and balanced” about the court’s double standard that favors the government over everyone else. And, as Sotomayor implies, this flagrant bias creates the disturbing impression that the Trump administration has a majority of the court in its pocket.

This does not bode well for the Trump administration’s expanded travel ban to include six new countries:

The Trump administration on Friday announced an expansion of the travel ban — one of the President’s signature policies, which has been derided by critics as an attempt to ban Muslims from the US — to include six new countries.

Immigration restrictions will be imposed on: Nigeria, Eritrea, Tanzania, Sudan, Kyrgyzstan and Myanmar (known as Burma), with exceptions for immigrants who have helped the US.

The latest iteration comes three years after President Donald Trump — in one of his first moves in office — signed the first travel ban, which caused chaos at airports and eventually landed at the Supreme Court. Trump’s Travel Ban Is Upheld by Supreme Court (June 26, 2018).

The updated ban has already sparked controversy over its targeting of African countries with lawmakers and advocates calling the changes discriminatory and without merit.

The administration has argued that the travel ban is vital to national security and ensures countries meet US security needs, by requiring a certain level of identity management and information sharing requirements.

Unlike the original ban, the new restrictions only include categories of immigration visa applicants. Specifically, all immigrants from Burma, Eritrea, Kyrgyzstan and Nigeria will be banned from the US. However, only green card lotteries will be restricted from Sudan and Tanzania, said a DHS official Friday.

The proclamation, signed by President Donald Trump Friday, is expected to take effect on February 21.

“Travelers on their way to the United States will not be denied entry as a result of this proclamation,” said the official. Nationals of the six countries already in the US or those with a valid visa to come to the US will “not be impacted,” the official added.

More importantly, this also does not bode well for the long-anticipated ruling of the Court on the Trump administration’s effort to undo the Obama administration’s DACA policy for “Dreamers,” for which the court heard oral arguments in November, and a decision could come any day between now and the end of June. As Supreme Court reporter Ian Millhiser wrote at the time, One way or another, the Supreme Court is likely to let Trump end DACA.

Dreamers should start preparing themselves now for the worst case scenario. This is going to be a hot button issue in this year’s election.

Trump’s anti-immigrant crusade comes at the same time his acting chief of staff Mick Mulvaney Says U.S. Is ‘Desperate’ For Immigrants For Economic Growth:

Acting White House chief of staff Mick Mulvaney surprisingly announced to an audience in England that the U.S. is “desperate” for immigrants to fuel the nation’s economic growth, The Washington Post reported.

“We are desperate — desperate — for more people,” Mulvaney told an audience of several hundred Wednesday at the Oxford Union, according to a recording obtained by the Post.

“We are running out of people to fuel the economic growth that we’ve had in our nation over the last four years. We need more immigrants.” He emphasized that they must enter the country in a “legal fashion.”

Representatives of several industries, especially agriculture, have complained that it’s difficult to find people to fill available jobs, stalling growth. But those complaints, and Mulvaney’s remarks, directly contradict President Donald Trump, who insisted last year during a visit to the southern border:  “Our country is full. Can’t take you anymore . . . so turn around.”

The Trump administration has been working to slash both legal and illegal immigration. Immigrant visas — for people following a legal process to enter the U.S. — have been cut more than 25% since 2016, according to State Department figures.

Farms, in particular, have faced struggles finding American workers to fill manual labor jobs amid the crackdown on immigrants.

Farmers are still struggling to find labor — and to weather Trump’s devastating trade wars. Farm bankruptcies jumped 24% last year. Nearly 40% of U.S. farm income this year will be provided by government insurance and taxpayer subsidies.

Though Trump repeatedly characterizes immigrants as a drain on the U.S.economy, that’s not supported by data analyzed by several organizations. Foreign-born workers contribute roughly $2 trillion to the economy annually, according to a 2017 study in the journal The National Academies of Science.

UPDATE: Oh, this is rich, the five year old’s “I’m rubber, you’re glue” response again: Trump criticizes Sotomayor, Ginsburg in tweets, seeks their recusal from ‘Trump-related’ cases:

President Trump went after Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg in a pair of tweets late Monday night, days after Sotomayor issued a dissent critical of both the Trump administration’s legal strategy and the court’s majority for enabling it.

Tweeting just before appearing in a welcome ceremony at the Indian ceremonial president’s residence in New Delhi, Trump cited a Laura Ingraham segment on Fox News titled, “Sotomayor accuses GOP-appointed justices of being biased in favor of Trump.” He then called on Sotomayor and also Ginsburg to recuse themselves in “all Trump, or Trump related, matters!”

“Trying to ‘shame’ some into voting her way?” Trump said of Sotomayor. “She never criticized Justice Ginsberg [sic] when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related matters! While ‘elections have consequences’, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!”

Historically, the government has “leapfrogged” over lower courts to appeal to the Supreme Court on relatively rare occasions to block adverse rulings before they are fully litigated. The Trump administration, however, has done so with considerable success and increased regularity, particularly in immigration-related cases.

Stephen I. Vladeck, a professor at the University of Texas School of Law, called attention to this pattern of behavior by the high court and the Trump administration in a November 2019 paper in the Harvard Law Review. He found that Trump’s solicitor general sought emergency stays in 20 cases in the first two-and-a-half years of Trump’s term, including six to stop nationwide injunctions against Trump’s travel ban and three involving the transgender military ban.

By comparison, in all 16 years of the Obama and George W. Bush administrations, the solicitor general filed a total of eight stay applications.

He called it the solicitor general’s “shadow docket.”

“A majority of the Justices now appear to believe that the government suffers an irreparable injury for purposes of emergency relief whenever a statute or policy is enjoined by a lower court, regardless of the actual impact of the lower court’s ruling,” Vladeck argued.

On Monday night, Vladeck took issue with Trump and Ingraham’s framing of Sotomayor’s dissent as a political tirade against “GOP-appointed” judges for “Trump bias.” Her dissent “accuses the majority of wrongly tipping the scales for emergency relief in the favor of the federal government — not of pro-Trump bias.

“And as I’ve explained at length before,” he wrote on Twitter, linking to his Harvard Law Review paper, “she’s right.”


  1. Not only does this not bode well for Dreamers but count on the 5 deciding Trump does not need to release his taxes or any other suit to hold him accountable. As I’ve previously said, this administration is like the spoiled brat who, when told no by his mother, immediately runs to daddy for a yes. After every appeal results in being told no this administration scurries to their packed Supreme Court for an inevitable yes.

    I’m sure John Roberts is really concerned (a la Susan Collins) about his legacy.

    • If Trump wins reelection the deportations of Dreamers will start on November 4th.

      It will be one of the most shameful moments in American history, only to be outdone by everything he does on November 5th.

Comments are closed.