President Trump’s deep, seething contempt for the notion that consequential acts of governing should be based on information gathered in good faith — rather than undertaken in willful bad faith or geared toward merely propping up his lies and obsessions — is suddenly garnering a lot more serious scrutiny.
Now this Trumpian corruption of our government is featured in a very tough dissent written by Supreme Court Justice Sonia Sotomayor, in an interesting way.
In short, Sotomayor lent support to the notion that the Trump administration is trying to ban asylum seeking at the border — a hideously cruel and radical move — in total bad faith, in the full knowledge that the facts do not remotely support their arguments, and indeed clearly illustrate that the ban will put untold numbers of people in grave danger.
Sotomayor dissented from a Supreme Court decision released Wednesday night that will allow Trump’s asylum ban to go forward while the merits are decided. That decision, which wasn’t explained, lifted a lower-court block on the policy.
Trump, who is pathologically devoted to slashing the numbers of desperate people permitted to even appeal for refuge at our border, and regularly rages at crossings as evidence his presidency is a failure, hailed this as a “WIN.”
Sotomayor’s dissent — joined by Justice Ruth Bader Ginsburg — argued that Trump’s asylum ban represents a radical overturning of our longstanding offer of safe refuge to the persecuted, without public input. Given the monumental stakes for those turned away, she noted, this shouldn’t stand for the many months needed to resolve the legal dispute.
What Sotomayor said
Trump’s new rule largely bans people from seeking asylum if they have not first applied for — and been denied — asylum in a country they passed through en route to our southern border. People from Honduras and El Salvador must be denied in Guatemala or Mexico. People from Guatemala must be denied in Mexico.
This would effectively end asylum seeking at the border by people from the region, an indefensible retreat on our commitment to the international humanitarian principle that people fleeing horrific conditions have the right to appeal here for refuge — and get a fair hearing.
A district court in San Francisco blocked it from going into effect. To oversimplify, this is what the high court just reversed.
But as Sotomayor points out, in blocking the rule, the district court judge said Trump would in the end probably lose on the legal merits. The district court ruling gave three reasons for this.
First, the government skirted rulemaking procedure. Second, the rule is inconsistent with statute, which denotes that asylum can only be denied on the basis of having passed through another country if the United States has a “safe third country” agreement with it or if the refugee is already “firmly resettled there," neither of which applies.
Third, the district court said the rule is likely arbitrary and capricious — that is, lacking in serious justification and undertaken in bad faith.
In reaching this finding, the district court noted that the administration failed to demonstrate that safely applying for and getting asylum in Mexico, where most would end up trying to do that, is even feasible. This flouts the will of Congress, which makes ineligibility for asylum contingent on migrants genuinely having a safe third-country option, because if they don’t, denying them application rights here puts them at serious risk.
Even worse, the district court noted that the administration apparently knows its new rule would not clear this threshold, and thus would put untold numbers at serious risk, but went forward with it, anyway.
The district court said the bulk of information the administration itself supplied to justify the rule actually shows that in Mexico, migrants are regularly targeted by violence and don’t get asylum rights. “Even though this mountain of evidence points one way,” the district judge noted, the administration “went the other.”
Bottomless bad faith
Sotomayor’s dissent says the district court ruling “warrants respect,” and, crucially, cites that aspect of it. Sotomayor agrees the rule may be “arbitrary and capricious for failing to engage" with "evidence contradicting its conclusions,” adding that it’s “especially concerning,” because this will impact “some of the most vulnerable people in the Western Hemisphere.”
In other words, the fact that the administration itself appears to know its rule will put untold numbers in danger itself supplies the urgent need to keep it on hold.
“Part of why Sotomayor and Ginsburg voted to dissent is that on the merits, the district court might have got this one right,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me. “There’s a strong enough argument that the government acted in bad faith."
All this goes directly to the heart of the ugly truth about this administration that is now becoming impossible to avoid. We’re now learning that a raging Trump pushed his staff to get the government’s top weather agency to contradict accurate official data about Dorian’s path, to prop up his falsehood about it.
Again and again, Trump and officials have pressed government resources into service to make Trump’s lies and obsessions into truths. Again and again, Trump and officials have disregarded or buried quality government information and findings when it undermined stated rationales for preordained decisions.
Sotomayor’s dissent speaks directly to this larger phenomenon. We don’t know what the legal relevance of this will be in the end. But it should not be glossed over that officials likely know full well that their new rule will put untold numbers at grave risk, and are implementing it anyway — with the high court’s blessing.