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Sat Sep 14, 2019, 04:53 PM

In war on government and expertise, institutions surrender

By Masha Gessen
September 13, 2019

... On September 11th, the Supreme Court, in an unsigned order, allowed the Administration to begin implementing a new rule that prohibits people from seeking asylum upon arrival at the southern border if they have travelled through a third country on the way and did not ask for asylum there. The rule effectively forbids refugees from any Central American country other than Mexico to ask for protection in the U.S. The policy, originally announced on July 15th, had been challenged by the American Civil Liberties Union and immigrant rights’ organizations. On July 24th, a federal district court in San Francisco temporarily blocked the policy. Judge Jon S. Tigar cited what he called a “mountain of evidence” that Mexico could not or would not offer protection to refugees. Judging that the policy was unlikely to be held up by courts, Tigar granted a temporary injunction.

The Administration took its case to the Supreme Court, which lifted the injunction, allowing the rule to go into effect while it’s still being challenged. In her dissenting opinion, in which she was joined by Ruth Bader Ginsburg, Justice Sonia Sotomayor cited Tigar’s “mountain of evidence” line and added that the government had provided no justification for the new rule, either in the district court or the Supreme Court. Furthermore, she wrote, in asking the Supreme Court to intervene while lower courts are still reviewing the policy itself, the Administration had used a tool that ought to be reserved for emergencies, without evidence or justification. In a brief for the Court, Solicitor General Noel J. Francisco effectively argued that the Administration has the right to make whatever policy it wants. The Supreme Court apparently agreed.

Sotomayor said little about the substantive effects of the Supreme Court’s order, which are self-evident: hundreds of thousands of people in need of international protection will be denied the right to seek asylum, which is guaranteed by both international and U.S. law. Sotomayor focussed on procedure. “Granting a stay pending appeal should be an ‘extraordinary’ act,” she wrote in her conclusion. (The word in quotes referred to an earlier Court opinion.) “Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively.” And with the approval of the Supreme Court ...

Contempt for expertise and disdain for the ways of government are integral to the Trumpian worldview, in which procedure exists only to thwart the President and experts only complicate things, solely in order to keep plain folk out. During his campaign, Trump claimed to keep only his own counsel on foreign policy—a commitment to ignorance and impulsiveness that he apparently demonstrated by ousting his third national-security adviser this week. The courts, whether when they consider his travel ban or when they rule on his scam of a university, are nothing but a nuisance, an obstacle to be driven over in the heaviest vehicle the Administration can commandeer. In the face of this blunt-force attack of bad faith, the foreign-policy establishment and the courts surrender ...


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