A few months ago, I wrote an essay for the Yale Law Journal discussing the importance of state and local laws as a counterweight not only to the Trump Administration’s aggressive immigration enforcement tactics but also to the Supreme Court’s troubling misreading of federal laws governing immigration.  As I wrote in that article:

“In recent years, the Court has eschewed rights-protective readings of immigration statutes—sometimes in spite of statutory text—while embracing the government’s arguments favoring broad enforcement power. The Court’s conclusions are not always the best reading of the statutory framework governing immigration law, and generally fail to account for the rights-protective strand of legislative efforts. …

No doubt, this shift can be most simply explained by ideological shifts accompanying changes in the Court’s composition. But it is useful to understand how the reasoning in these cases changed. First, the Court’s turn to “pure textualism”—a methodological approach that purports to look almost exclusively at statutory language without reference to legislative intent or a law’s historical context—allows the Court to be guided by its own restrictionist preferences, without attention to the will of the people as expressed through their democratically-elected legislators. The Court is increasingly reading the words of the immigration laws entirely outside of the complex and compromise-laden congressional context in which those words were chosen. Second, the Court has largely cast off the constraints of the Constitution in interpreting immigration laws. At one time, the Constitution’s due-process guarantee operated as a background, phantom norm that shaped the Court’s reading of statutory provisions. This has given way to a deference to the executive branch that undercuts both congressional limits on executive power and the individual rights of noncitizens.”

I think my analysis in that piece foreshadows what has happened this term.

Over the past two days, the Supreme Court has issued three immigration decisions, and in all three, the Supreme Court again misreads federal statutes to maximize their restrictionist effects. These misreadings not only undercut immigrants’ rights, but they also undermine the rule of law by allowing executive branch officials to disregard the immigration processes and procedural protections mandated by Congress. We see this in Blanche v. Lau, where the majority offers an untenable reading of an immigration statute to allow border agents to strip lawful permanent residents of their green cards upon re-entry to the U.S. without having to meet any articulated evidentiary standard.  We see this in Mullin v. Al Otro Lado, where the Court offers a reading of federal asylum protections that functionally limits those protections to noncitizens who are first able to enter the U.S. lawfully—something that very few legitimate asylum seekers are able to do.  (This decision, in addition to being issued for a case not actually in controversy, is sharply at odds with the international law requirements that Congress embedded into domestic law in 1980.)  And we see it in Mullin v. Doe, where the Court greenlit the Administration’s termination of Temporary Protected Status (TPS) for hundreds of thousands of immigrants, even though the Administration failed to comply with the procedures Congress required, and even though the Administration’s decision to end TPS protection was based on the explicitly-stated, racist views of the President and other Administration officials.

This is not the immigration law that Congress created, nor does it adhere to the requirements of our Constitution.  But it is the immigration law that suits the policy preferences of the Court’s majority.

Jennifer M. Chacón researches issues that arise at the nexus of immigration law, constitutional law, and criminal law and procedure. Her writings elucidate how legal frameworks on immigration and law enforcement shape individual and collective understandings of racial and ethnic identity, citizenship, civic engagement, and social belonging. She is the co-author of the immigration law textbook Immigration Law and Social Justice, now in its second edition, and the co-author of Legal Phantoms (Stanford University Press, 2024), which explores how the past decade’s shifting immigration policies have shaped, and been shaped by, immigrant communities and organizations in Southern California. She has written dozens of articles, book chapters, and essays on immigration, criminal law, constitutional law, and citizenship issues. Her research has been funded by the Russell Sage Foundation, the National Science Foundation, and the University of California.