In a decision that redefines what it means to be heartless, the US Supreme Court has held that by stopping asylum seekers from crossing the border, the country can avoid ever having to determine whether their lives are in danger if they return home. The majority opinion, written by Justice Samuel Alito, is a case study in the absurdities of legalism, and shows why it has been condemned since the days of Jesus of Nazareth.
The law says an asylum seeker who “arrives in” the US must be given the chance to claim its protection. But the court said that so long as the asylum seeker has not actually stepped over the border, the statute does not apply.
The result elevates the letter of the law over not only its logic, but also its spirit. Asylum exists because of the moral determination of all modern countries, including the US, that people oppressed in their home countries should have a chance to live a better life somewhere else.
It is perverse to bar asylum applications from people who follow the rules and show up at established border crossings, while allowing asylum applications from those who manage to get across the border unlawfully.
To read the majority opinion, as well as a significant portion of Justice Sonia Sotomayor’s dissent, you would think that what was at issue in the case was the meaning of the words “arrives in.” In fact what is at stake is the identity of the US as a country committed to the safety of huddled masses yearning to breathe free.
Indulge me in belabouring the linguistic arguments of both sides for a moment. Alito, writing for the six conservative judges, insisted that, “in ordinary speech, no one would say that a person ‘arrives in’ a place—for example, a house, a city, or a country—before the person enters that place.”
Sotomayor, writing for liberals and history books, pointed out (correctly) that it all depends on context. “Arriving in Penn Station,” the New Yorker noted, “might mean that the train is inside the station or merely that it has started slowing down half a mile away.”
For good measure, she added: “If someone said, ‘Call me when you arrive in Washington, D.C.’ it would be logical to call them once you have landed at DCA Airport, just across the river in Virginia.” In this era of presidential renamings, it is noteworthy that she did not use the airport’s official name [Ronald Reagan Washington National Airport].
For good measure, Sotomayor also reasoned that the law gives the right to be considered for asylum to those “physically present” in the US.
That, she maintained, would make it unnecessary for the law also to say that people arriving in the US are entitled to apply for asylum unless the true meaning of “arrives in” is simply “arrives at the border.” And she invoked the bizarre consequence that the law, as the court construed it, allows someone who crosses into the US by evading border guards to seek asylum while denying that legal right to someone who follows the rules and tries to enter at a lawful entry point.
The best part of Sotomayor’s dissent is its invocation of the underlying objective of asylum laws, which “developed in response to the international moral reckoning that followed the Holocaust and World War II.”
The idea is that anyone fleeing persecution and in danger of losing life or limb should get a chance at protection. This tenet is fundamental to the postwar international order, both legally and morally.
Sotomayor cited the ship St. Louis, which was denied entry to the US and had to turn back to Europe, where many of its passengers eventually ended up murdered by Nazis. She did not mention that, under today’s decision, the refugees aboard would not have had the opportunity even to have their asylum claims considered.
None of this is to deny the practical and logistical challenges that large numbers of asylum seekers pose for immigration authorities. But notwithstanding anti-immigrant sentiment in the US, Congress has not changed the laws granting asylum to qualified refugees. Nor has international law given up on the principle that asylum seekers should not be sent back to their countries to die.
What was at issue for the US Supreme Court was not a practical policy question so much as the meaning and purpose of the law itself. The law is not a game of technicalities, but a system of rules and values designed to serve the objectives of justice. When it comes to asylum, the spirit of the law could not be clearer—it is meant to protect the lives of people fleeing oppression.
Now, the Supreme Court crushed that spirit. That is bad for the law, the country and the world. ©Bloomberg
The author is a Bloomberg Opinion columnist.