KPBS Border Reporter Gustavo Solis hosted Kathleen Bush-Joseph from the Migration Policy Institute for a brief conversation about immigration cases in the Supreme Court. Bush-Joseph, a lawyer and a policy analyst, has been closely following immigration-related cases in the Supreme Court.
Solis and Bush-Joseph spoke about different executive actions and lower court decisions. Bush-Joseph also broke down different cases and explained why they are so impactful.
This transcription has been edited for brevity and clarity.
I want to start with day one of the Trump administration, when he signed a record number of executive actions. Which ones stood out to you?
Bush-Joseph: It feels like so long ago already, but on day one, we saw the opening of what has really been a "flood the zone" strategy of so many measures and so many moves that it's truly hard to keep up with. But I think that one of the really major ones, and one that maybe not everybody knows about still, is the invasion declaration.
On day one, the Trump administration said that the United States has been, quote-unquote, "invaded by immigrants coming across the U.S.-Mexico border," and that's the reason why they needed to what they deemed shut off access to asylum and humanitarian protection there.
And that sounds pretty straightforward, right? It's one thing, "invasion." But why is it so significant? What has it allowed the administration to do with just that one declaration?
Bush-Joseph: This has had a major impact, I should say, in conjunction with other measures that have built up the federal government's presence at the border, which include bringing the military down there. Now you have thousands of military personnel.
And by quickly returning people across the U.S.-Mexico border and or to their home countries, the Trump administration has been demonstrating that if people try to come, they will be quickly deported. Now, that's been challenged in the courts... but U.S. law... does allow for people who arrive at the border to apply for asylum.
You recently co-wrote what I thought was a pretty brilliant breakdown of Trump's first 100 days in office. And in that piece, there's a graphic that shows six different Supreme Court cases broken down into three different groups. Tell us what we're looking at ... and why you thought it was important to put this together?
Bush-Joseph: Thank you so much for saying that.
You know, it was difficult to pick just a few of the many court cases that are ongoing right now about the Trump administration's policies. We at the Migration Policy Institute have estimated there have been more than 50 multi-plaintiff lawsuits challenging just immigration-related policies. But here we really wanted to focus on the ones that have really in record time made it up to the nation's highest court.
And in many ways these reflect how the Trump administration is pushing the legal boundaries.
They're saying that the president himself has the authority to be exerting this unprecedented amount of authority on immigration, to the extent that they have deported people quickly with little due process. And so these cases reflect some of those moves.
I'll point immediately to the birthright citizenship one and that's actually three separate cases.
These were the ones that made it up to the appellate courts more quickly. But they're really pushing back on this idea that President Trump can overrule what had been essentially a settled understanding that the 14th Amendment guaranteed birthright citizenship for people born in the United States.
What's the status of that case?
Bush-Joseph: I think it's worth noting right away that these cases are at the initial stages. So we've seen the court intervene extremely quickly in a rare decision about the Alien Enemies Act.
There was a middle of the night decision, but all of this is not yet at the merits stage. So we're not actually talking about underlying issues in the cases being resolved, maybe anytime soon. It's going to be a bit of a wait and see.
(In) the birthright citizenship case, the Supreme Court held unusual oral arguments when they normally would not. Those really turned a lot on some of the legal issues about, "Can lower court judges issue these nationwide injunctions blocking a policy for the whole country?"
But it could be a bit before we see a decision in that case, especially because it's so complex. And then maybe the case gets sent back down to the lower courts, which then work through some of the merits issues.
Which I think that's a really important thing to keep in mind right now, just how long some of these issues tend to play out ... I was speaking with an immigration lawyer on another story here in San Diego, but they made an interesting point about some of these executive orders ... that it's not illegal until a judge ... determines that it's illegal. And in the meantime, a lot of damage can be done. Could you talk about that dynamic?
Bush-Joseph: Absolutely. And we've actually seen this reflected in the Supreme Court's actions where with the first time the Alien Enemies Act case reached them, they issued a decision and said the lower court needed to work out some of the wording and meaning.
And then the second time the case came back to the Supreme Court, they said, "Wait a minute."
In the meantime, there have been these developments that have shown us that we really need to act quickly and now, because there's real harm that's happening in the meantime.
The case of Kilmar Abrego Garcia has been cited repeatedly as an example for why judges need that power in some cases to be able to block a policy because that's exactly right, there's that lag between when something's announced, when it's being implemented by officers on the ground, and then the time frame of the courts, which is usually much slower than it is now even.
Obviously, the birthright citizenship got a lot of attention with those oral arguments you mentioned.
What are a couple of other cases that may be just as important or even more important that are flying under the radar right now?
Bush-Joseph: So, we just saw one decision where the Supreme Court allowed the Trump administration's termination of Temporary Protected Status to go into effect.
The simpler way of putting it is that Trump tried to end a status for hundreds of thousands of people. The lower courts said no, and then the Supreme Court allowed it to happen.
That one is really important because the Trump administration is trying to roll back these protections that the Biden administration had put in place, for especially new arrivals.
Those are the people who the Trump administration wants to be quickly deporting with an authority called "expedited removal," which is this administrative process that allows for deporting people who've been in the country for less than two years, just by an immigration officer issuing a removal order.
That avoids the huge backlog of cases at the immigration courts where there are almost four million deportation cases pending.
So you can see why the administration wouldn't want to do that, right? You have this mechanism that is quicker ... But that's a really interesting point because you have these folks who came in through legal humanitarian programs under one administration and overnight that legal status can just be revoked? It might be too simple of a way of looking at it but is that essentially what's happening? You're just creating a group of unauthorized folks overnight and targeting enforcement against them?
Bush-Joseph: So again, we're just at the initial stages, and the lower court judge might end up saying, "No, you can't just do that. You can't just terminate this program."
And especially Temporary Protected Status. That comes from a statute that Congress passed and that previous administrations have followed.
So it's too early to tell, but there are other discretionary programs that the Trump administration quickly moved to end. Some of those are also being litigated. There's a pending request at the Supreme Court right now about humanitarian parole and the Trump administration's attempt to end this program which allowed for more than 500,000 people to come.
What are you going to be on the lookout for? What's the best way to keep an eye on everything? Because I know it's easy to get overwhelmed. It's easy to just see all these headlines and see all these cases and kind of lose yourself in that. What is a responsible, sustainable way to keep tabs of all this?
Bush-Joseph: Really just trying to keep in mind that this is the initial stages and it could be that some of these court cases end up lasting months, years. There are court cases from the first Trump administration that were revived under the Biden administration to challenge Biden's policies, and we could see groups going back to those same judges now to be challenging similar policies again.
At the end of the day, I'll actually use this as an opportunity to say that the Trump administration has taken all these executive actions, but they're not changing U.S. immigration law.
Yes, they're pushing the boundaries. But at the end of the day, only Congress can actually change immigration law.
And in the meantime, Congress actually has the power to conduct oversight over the Trump administration's actions and it can push back on these executive orders.
As we wrap up, can you let folks at home know how they can follow your work, your research?
Bush-Joseph : Thanks. Yeah, I tried to post a lot of updates and our analysis from the Migration Policy Institute on Bluesky, Twitter, occasionally on LinkedIn.
And (the Migration Policy Institute) website is full of these amazing data tools where you can see how many immigrants are in your state, how many DACA holders, the young people who came as children, and how many unauthorized immigrants are in your state, refugees. So, I really recommend that people go there, check out our latest articles and we'll keep trying to track all of this.
