SCOTUS Immigration Wins Are Not Enough

Judicial Deference to the President Must Be Taken More Seriously

Immigration is the next frontier of the conservative legal movement. Despite a pair of victories at the Supreme Court recently, the overall trend from the federal courts demands a stronger approach to the executive’s inherent power over immigration.

This past term, the Supreme Court rightly affirmed presidential authority over immigration policy in two major cases. This marks a vital step toward restoring constitutional order. The next phase, already underway in lower courts, is to recognize the president’s inherent powers in this field.

In Mullin v. Al Otro Lado, the Court sustained the government’s authority to control asylum access at the border. The case challenged policies that allowed officers to prevent asylum seekers from physically crossing into the United States at ports of entry, holding that an alien standing in Mexico does not “arrive in the United States” for purposes of the Immigration and Nationality Act’s asylum and inspection provisions until the alien actually crosses the border. In Mullin v. Doe, the Court upheld the executive branch’s discretion to terminate Temporary Protected Status (TPS) designations for Haiti and Syria. Lower courts had blocked those terminations and ordered them postponed during litigation. The Supreme Court reversed, holding that the TPS statute expressly bars judicial review of DHS’s determinations “with respect to” the designation, extension, or termination of TPS for any foreign country. This broad bar covers both the final decision and the underlying assessments of country conditions and consultation processes.