- In a somewhat confounding decision regarding birthright citizenship, the Supreme Court ruled on Friday against the use of nationwide injunctions. This decision follows three separate courts issuing preliminary to block the president’s executive order limiting the application of the 14th Amendment. The Court has essentially said that the injunctions should only apply to the named plaintiffs in the cases, whether they are states or individuals. The good news is that Massachusetts is a plaintiff in one of the cases, meaning that the Constitution will still apply in the Bay State. Newborn children in many other states will not be so lucky in 30 days, when the Court has said the administration may implement its executive order, and the Court even says that lower courts will have to deal with the question of people who move (example – if a child is born in one state but lives in another state, would they be considered a citizen for purposes of benefit eligibility). This is only a procedural decision, and these cases are far from decided. In the long term, the District Courts will still hold full trials to determine the constitutionality of the executive order, and it is almost certain that the administration will appeal any decisions from those courts up to the Supreme Court. At the same time, the Supreme Court had offered a workaround in its decision last week – these cases could be filed as class action lawsuits. Although this would require the additional step of court certification of a class, it could provide protection to all those impacted by the administration’s unconscionable attempts to deny citizenship. Both the ACLU and CASA were ready for this development and quickly filed a new class action lawsuits on the same day the Court’s decision came out. If successful, they could both obtain preliminary injunctions that would effectively cover children born after the executive order goes into effect.
- On Tuesday, the Senate passed their version of the reconciliation bill by a vote of 51-50 with VP Vance casting the tie-breaking vote. ThIs Senate version then went to the House where it passed a vital procedural vote Wednesday night despite much hand-wringing among GOP members concerned about either the cuts to healthcare funding or the significant increase to the national debt. The White House has pushed back on these complaints and is actually focused on the cruelty to immigrants as the reason to pass this bill despite any other failings. The expectation is that the bill will pass the House at some point on Thursday, and that the president will quickly sign it. The bill contains a variety of anti-progressive measures, but is particularly harsh on immigrants and their families by denying access to federal assistance, financially punishing states that offer their own assistance, and dramatically increasing funding for an already inhumane enforcement regime.
- In another blow to the administration’s anti-immigrant agenda, a federal judge ruled Tuesday that DHS’s effort to end TPS for Haitians early was illegal. This case is farther along in its process than similar cases, and the court granted a motion for partial summary judgement, meaning the judge found that there was no dispute about the facts of the case and the attempt to end TPS early is a clear violation of the law. While we expect the administration to appeal this decision, for the time being, Haitians with TPS will have their original expiration date of February 3, 2026 restored.
- This followed another court victory against the administration, this time in a suit filed by state Attorneys General. 20 states (including MA) had sued to prevent the Department of Transportation from conditioning federal funding on cooperating with immigration enforcement (including eliminating DLs for undocumented immigrants), and the court issued a preliminary injunction last week.
- A third major court victory came out Wednesday afternoon when a federal judge ruled against the administration’s attempts to limit access to asylum. In one his day-one actions, Trump had signed an Executive Order barring individuals who entered without inspection from applying for asylum, a common practice as those fleeing violence generally do not have the time or resources to get a visa. The order also placed major hurdles in the way of those who do try to enter the country at a port of entry. In ruling against the government, the judge found that Congress had authorized certain procedures and that they administration had gone beyond their authority in unilaterally trying to limit those procedures. This decision in not in force yet as the judge has stayed his ruling for two weeks to allow the administration time to appeal.
- Unfortunately, it was not all court victories as last week the Supreme Court granted a stay of a lower court’s injunction against deporting people to 3rd countries without due process. While 3rd country removals have long been acceptable under immigration law, it has traditionally been used sparingly. The administration has sought to dramatically expand the ability to deport individuals to a country other than their own, and advocates have pushed back saying that individuals should have the opportunity to challenge the possibility of torture or other mistreatment in the proposed destination. A federal judge in Boston had ruled in May that individuals must have a chance to challenge removals to a 3rd country if they could face serious danger, but the Supreme Court on Monday stayed that decision in an unsigned opinion. Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, offered a lengthy dissent bemoaning not just this outcome, but also the fact that the Court has repeatedly allowed the administration to get away with violating lower court orders.
- Relatedly, the US cannot remove individuals to a 3rd country without that 3rd country’s consent, and it appears that the administration is using the visa process to bully countries into accepting deportees. Threats to expand the list of countries under a travel ban appear not to be related to any real defects in the identity documents issued by those nations, but rather to be an effort to force them into accepting non-citizens deported from the US.
- Despite repeated claims from the administration that they are going after only criminals, data analysis supports what we have all known: this administration is not acting against criminals, it is acting against immigrants in general. A recent report by the libertarian Cato Institute has found that ICE is arresting individuals with no criminal record at an alarming rate, with nearly 80% of those arrested having no criminal convictions.
- Media reports this week revealed the existence of a memo issued in June from the Department of Justice that targets naturalized citizens. The memo actually set enforcement priorities targeting a number of issues such as efforts to expand diversity and the accessibility of gender transition. However, it was the memo’s attacks on naturalization that caught the media’s attention with its call to “prioritize and maximally pursue denaturalization proceedings.” Although denaturalization is generally only allowed where the naturalized citizen committed fraud during the application process, the memo would appear to encourage DOJ prosecutions outside those limited circumstances, and the administration would appear to once again be ignoring the legal limits of its own power to cast a wide net. The memo also targets “sanctuary jurisdictions” and calls for the agency to “prioritize affirmative litigation to invalidate any State or local laws.” On the same day that the public found out about this memo, the Justice Department filed suit against Los Angeles over its policies protecting its residents.
- The State of Florida is building a new immigrant detention facility at a mostly abandoned airport in the Everglades, which they have dubbed “Alligator Alcatraz.” The idea appears to be using dangerous wildlife as guards, with one state official saying, “You don’t need to invest that much in the perimeter. If people get out, there’s not much waiting for them other than alligators and pythons.” President Trump echoed this sentiment before visiting the nearly complete facility on Tuesday, saying, “We’re going to teach them how to run away from an alligator if they escape prison.” Native American leaders dispute this characterization, pointing out that it is sacred land where they have lived for millenia.
- The administration continues to display their inhumanity towards immigrants. Following recent deaths in ICE custody, Trump’s deportation czar, Tom Homan, dismissed any concerns about detention conditions, merely saying that, “[P]eople die in ICE custody, people die in county jail, people die in state prisons.”