The confirmation of Brett Kavanaugh and Neil Gorsuch to the Supreme Court have proven to be consequential in advancing President Trump's immigration agenda.  Four cases decided during this term, three by a 5-4 margin, have reversed lower court decisions that sought to make it harder to restrict immigration.

In Kansas v. Garcia, the Court gave states wider latitude in prosecuting illegal aliens for identity theft when they provide false Social Security numbers on job applications.

The issue in the case was whether the federal Immigration Reform and Control Act of 1986 pre-empted a Kansas statute that criminalized identity theft.  The Trump administration backed Kansas in the case.

In the opinion written by Justice Samuel Alito, the Court held that Kansas did not unlawfully encroach on federal authority over immigration policy.  According to Alito:

From the beginning of our country, criminal law enforcement has been primarily a responsibility of the States, and that remains true today. In recent times, the reach of federal criminal law has expanded, and there are now many instances in which a prosecution for a particular course of conduct could be brought by either federal or state prosecutors. Our federal system would be turned upside down if we were to hold that federal criminal law preempts state law whenever they overlap, and there is no basis for inferring that federal criminal statutes preempt state laws whenever they overlap. Indeed, in the vast majority of cases where federal and state laws overlap, allowing the States to prosecute is entirely consistent with federal interests.

A second case, Wolf v. Innovation Law Lab, allowed the Trump administration's "Remain in Mexico" immigration policy to stay in place.  The Remain in Mexico policy, which was enacted in January 2019, blocked applicants for asylum from entering the U.S. until their applications are approved.  The Ninth Circuit held that the policy violated federal and international (!) law.  In the Wolf decision, the Supreme Court issued a brief order staying the appellate court ruling while lower-court challenges play out.

"Our entire nation dodged a bullet," wrote Daniel Horowitz in Conservative Review, noting that failure to stay the injunction would have caused "a mass rush of caravans at our border."  Not exactly an attractive scenario at a time of coronavirus panic.

Finally, in a pair of 5-4 decisions in January and February, the Supreme Court upheld the Trump administration's "public charge" rule for new immigrants.

For the past twenty years, "public charge" has been defined as a person dependent on cash assistance programs.  The Trump administration revised the definition in August 2019 to include people likely to require non-cash government benefits.  Lower courts have repeatedly blocked the new policy from going into effect.  In early January, the Second Circuit U.S. Court of Appeals implemented a nationwide injunction against the policy.

On January 27, 2020, the Supreme Court in Department of Homeland Security v. New York, granted a stay, lifting the nationwide injunction — except in Illinois, where a statewide injunction remained in place.  About a month later, in Wolf v. Cook County, in another 5 to 4 decision, the Court granted an additional stay with respect to Illinois, allowing the public charge rule to go into effect in all 50 states.

Significantly, in the New York decision, Gorsuch took aim at the nationwide injunctions, stating that the injunctions are "patently unworkable, sowing chaos for litigants, the government, courts, and all those affected."  Hopefully, the Court can address the issue of nationwide injunctions in a future ruling.

With federal district and circuit courts seeking to frustrate the Trump administration's immigration policies, it is heartening that the Supreme Court has started to provide some clarity.  Continued progress depends entirely on conservatives maintaining, or hopefully adding to, their fragile 5-to-4 majority on the Court.

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