The Lines It Drew

It is tempting, after a year in which the Supreme Court sided with the Executive on immigration more often than not, to file the Court under one heading and move on. The temptation should be resisted, because it misreads the term — and because the places where the Court did not go along are as instructive as the places where it did. Gather the immigration rulings of the Court's last term in one view and a pattern appears that no single headline captures: the Court was most willing to let the political branches act at the discretionary edges of membership, and least willing where the question touched membership's settled core.

The edges, this term, moved the Executive's way. The Court let the government turn back asylum seekers before they set foot on American soil; it let the government end a humanitarian status that several hundred thousand people had held for years; and, on its emergency docket, it declined to halt aggressive enforcement operations while the challenges to them proceed. Each of those is a decision about who may come in and who may remain — the permeable, contested boundary of the national community, the place where Congress has written broad grants of executive discretion and the Court has long been reluctant to substitute its own judgment.

The core did not move. On the final day of the term, the Court held — by the same six-to-three division that had gone the other way a week earlier — that the Executive may not deny citizenship to children born on American soil. The contrast is the subject of this essay. It is not offered as praise or blame of the Court, which this publication is in no position to grade, but as an attempt to see the term whole, and to say plainly what the pattern means for the people, and the lawyers, who live downstream of it.

Begin with the rulings that went the government's way, and state the government's case at its strongest, because each rested on a real and serious legal foundation rather than on mere deference to power. In the asylum case, the question was textual and narrow: the statute permits a noncitizen "physically present in the United States" or who "arrives in the United States" to apply for asylum, and the dispute was what it means to "arrive." The majority's answer was that a person standing in Mexico does not "arrive" by "attempting, and failing, to set foot in this country." One may find that reading cramped — the Ninth Circuit had held that a person who "presents herself to an official at the border has arrived, no matter which side of the border she is standing on," and three justices agreed — but it is a reading of the word Congress chose, not an abandonment of the statute. The government's position is that the political branches, not the courts, calibrate the pressure at the border, and that the word "arrives" marks a line the Executive may lawfully hold.

The Temporary Protected Status case rested on something even more structural: a jurisdictional bar. Congress wrote, in the TPS statute, that there shall be "no judicial review of any determination" of the Secretary "with respect to the designation, or termination or extension of a designation." 8 U.S.C. § 1254a(b)(5)(A). The Court gave that text its plain effect, placing the country-conditions judgment where the statute places it — with the Executive — and off the courts' docket. Both sides, the reporting notes, agreed that the law lets an administration remove a country from the program and that termination ends the protection; the fight was over whether the Secretary's process could be reviewed, and on that the statute's words were decisive. And on the emergency docket, the Court's interim orders reflect a familiar, if contested, principle of that docket: that while litigation proceeds, the Executive is ordinarily left to exercise the enforcement authority the immigration laws confer, with the merits to be sorted out below. In each, the Court deferred not because it favored a policy but because it found the decision assigned, by statute or structure, to another branch.

Then, on the term's final day, the pattern broke — or rather, revealed its limit. The Executive had issued an order directing federal agencies not to recognize the citizenship of children born in the United States unless at least one parent was a citizen or lawful permanent resident. The government's argument was not frivolous, and fairness requires stating it: the Fourteenth Amendment grants citizenship to those born here "and subject to the jurisdiction thereof," and the Solicitor General contended that this phrase withholds citizenship from the children of those unlawfully present or only temporarily so — that citizenship presumes a "primary allegiance" established by lawful, permanent domicile, and that the alternative invites what he called "birth tourism." It is a reading some scholars share, and it was pressed ably.

The Court rejected it, six to three, and the Chief Justice wrote the opinion. The majority returned to United States v. Wong Kim Ark, 169 U.S. 649 (1898), which had recognized birthright citizenship for the children of foreign nationals, and declined to disturb more than a century of settled understanding: "in the 128 years since, we have repeatedly understood the rule of Wong Kim Ark to guarantee citizenship to all children born in the United States and subject to its power," the Chief Justice wrote. "We see no reason to depart from that view today." There was, he added, "scant evidence" for the administration's "dramatically revisionist view." And in a passage that will be quoted long after the politics of this moment have faded, the opinion located citizenship at the foundation of everything else — the "right to have rights," the right "to freely participate in our political community" — and said of the Fourteenth Amendment's promise: "We keep that promise today." A concurring justice would have rested the result on a statute rather than the Constitution, but the judgment was not close.

Why did the core hold when the edges gave way? The honest answer is that the two kinds of question are different in law, not merely in sympathy. Who may enter and who may keep a discretionary, statutory status are matters Congress has largely entrusted to the Executive, hedged by jurisdictional bars and broad grants of authority; the courts enforcing those bars are, in a sense, deferring to Congress's allocation, not to the Executive's preference. Birthright citizenship is the opposite kind of question. It is fixed in the Constitution's text, settled by precedent the Court was unwilling to unsettle, and concerns not a permission the government grants but a status a person is born holding. The nearer a case came to that constitutional core, the firmer the Court stood; the nearer it came to the discretionary edge, the more it yielded. That is not a contradiction. It may be the most coherent thing about the term.

Two cautions keep the pattern from hardening into a theory it cannot bear. The first is that a map of where the Court deferred is not a judgment that it was right to. Reasonable people — and three dissenting justices, repeatedly — thought the asylum reading too narrow, the TPS bar too absolute, the emergency-docket deferrals too quick. This publication takes no side on those disagreements; it observes only that the Court's deferrals rested on stated legal grounds, and that the grounds were about who decides at least as much as about what the right decision was. One can accept that framing and still believe the Court got particular cases wrong. The map explains the pattern; it does not bless it.

The second caution is that the core itself is contested at its newer edges, and the term that just opened will test them. The detention case the Court has agreed to hear sits precisely between the poles this essay has drawn: it concerns people already inside the country — past the border the asylum case policed — but not admitted to it, and it asks how much process the Constitution requires before such a person may be held. It is neither the pure edge of the asylum case nor the settled core of the citizenship case, and how the Court locates it will say a great deal about whether the pattern of the last term was a principle or a coincidence. The same may be said of the constitutional claims that survived this term's rulings, including the equal-protection challenge to the Haitian termination, which raises in a new setting the old question of what limits the Constitution places on even a power the statute commits to the Executive.

From the desk where these cases become clients, the term's map has a practical translation. The deferrals narrowed avenues but did not erase the people who used them, and the work is to find what each ruling left standing. For the TPS holder — in this community, most often the Haitian family that built a life on a status now ending — the Court closed the door on challenging the termination itself, but left untouched the independent relief a client may hold: a pending asylum claim, a lawful entry that opens adjustment, a petition already filed. The asylum ruling changed where a claim must be made, not whether a client who is here may make one. And the citizenship ruling is, for a great many of these families, the quiet good news beneath a hard season: the child born here is a citizen, fully and from birth, whatever becomes of the parents' status — a fixed point to build a family's planning around.

The steadying discipline is the same one this desk has urged all autumn. Read each ruling for its actual holding, not its headline; the holdings are narrower, and more useful, than the coverage suggests. Audit every file for the relief the term did not touch, and do it before a work permit lapses or a deadline runs. Preserve the questions the Court has not yet answered — the detention issue above all — so that a client's claim is still alive when the answer comes. And tell clients the truth in both directions: that some doors have closed, that others remain open, and that a lawyer's task is to find the second kind while being honest about the first. The Court has drawn its lines for now; the work goes on inside them. This is general information and analysis, not legal advice; individual consequences turn on individual facts and should be confirmed against primary sources and current dockets.