DOJ accuses courts of undercutting executive power in high-stakes Supreme Court border case

The Department of Justice will argue Tuesday that lower courts are undermining the federal government’s ability to manage the southern border in a closely watched Supreme Court case about how migrants make asylum claims.

DOJ lawyers wrote in court papers ahead of the arguments that an appeals court was wrong to restrict the government’s ability to limit how it processes migrants into the country. The lawyers said the ruling stripped the executive branch of a necessary tool, first used during the Obama administration, to respond to surges of illegal migration, which the Trump administration has sought to curb after officials encountered more than 10 million migrants at the border during the Biden administration.

“Administrations of both major parties have opposed the decision, which deprives the Executive Branch of a critical tool for addressing border surges and preventing overcrowding at ports of entry,” the DOJ lawyers wrote. “This Court should reverse.”

The case, Noem v. Al Otro Lado, centers on whether migrants who are stopped on the Mexican side of the U.S.–Mexico border can be treated as having “arrived in the United States” under the Immigration and Nationality Act. If they can be designated as having arrived in the country, they would be entitled to apply for asylum, which would require border officials to process their asylum claims.

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The DOJ lawyers, led by Solicitor General John Sauer, argued that the immigration law’s language was clear.

“In ordinary English, a person ‘arrives in’ a country only when he comes within its borders,” they wrote. “A person does not ‘arrive in the United States’ if he is stopped in Mexico.”

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D. John Sauer, Trump’s former attorney, was tapped to serve as U.S. Solicitor General in the Trump administration.  (Anna Moneymaker/Getty Images)

The case stems from a lawsuit brought in 2017 by the immigrant rights group Al Otro Lado and more than a dozen unnamed asylum seekers.

The plaintiffs challenged the practice of “metering,” which was first used during the Obama administration and allowed U.S. Customs and Border Protection officers to turn migrants away, saying border facilities were over capacity and that they should come back later.

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Immigration law requires the United States to allow migrants arriving at the border to claim asylum by saying they fear persecution in their home country. Once they make the claim, a legal process begins, and, if the claim is granted, the migrant is given a pathway to live and work legally in the United States. Border hawks have argued the asylum system is rife with abuse as migrants make meritless asylum claims at the border and then never show up for their hearings.

Migrants wait in line to turn themselves in for processing with U.S. Customs and Border Protection agents near the Paso del Norte Port of Entry after crossing the US-Mexico border in El Paso, Texas, on May 9, 2023. (PATRICK T. FALLON/AFP via Getty Images)

The plaintiffs’ lawyers said in court papers that metering was an unlawful “turnback policy.”

“Petitioners zero in on a single preposition—the word ‘in’— to urge an interpretation that renders the rest of the statutory text non-sensical,” they wrote.

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Unlike prior administrations where the United States saw influxes of illegal migration, President Donald Trump’s immigration crackdown has drastically curbed arrivals at the southern border. But the DOJ lawyers argued that the executive branch should have the option to practice metering if needed without judicial interference.

A ruling in the case is expected by the summer.