Amicus brief rejects Trump Administration’s unconstitutional attempt to rewrite asylum statutes by executive action
WASHINGTON, D.C. — U.S. Senator Alex Padilla (D-Calif.), Ranking Member of the Senate Judiciary Immigration Subcommittee, Representative Jamie Raskin (D-Md.-08), Ranking Member of the House Judiciary Committee, and Representative Bennie G. Thompson (D-Miss.-02), Ranking Member of the House Homeland Security Committee, led 23 Democratic Members in filing an amicus brief before the Supreme Court of the United States in Noem v. Al Otro Lado, urging the Court to reaffirm that the Constitution vests in Congress — not the executive branch — the authority to write and revise the nation’s asylum laws.
The brief challenges the Trump Administration’s so-called “metering” policy, which blocked people at official ports of entry from applying for asylum, which is allowed under federal law. The Members argued that this is not lawful enforcement discretion, but an attempt by the executive branch to ignore Congressional intent.
“Congress has power over asylum and legal immigration pathways — not Donald Trump, Stephen Miller, or any executive branch official looking to unlawfully turn away people seeking protection in our country without giving them due process,” said Ranking Member Padilla. “The Trump Administration’s inhumane policy of turning away potential asylum seekers before they step foot on U.S. soil is a clear violation of federal law and a stain on our legacy as a nation of immigrants. Our brief makes clear that President Trump cannot unilaterally rewrite the rules of our immigration system; he needs an act of Congress — not an unlawful workaround.”
“Congress decided who may apply for asylum and how the process works because we have power over immigration. The President cannot erase and overthrow those decisions by physically blocking access to the legal process. If an administration believes a statute no longer works, it can come to Congress with a proposal to change it but it cannot delete and rewrite the law on its own. Allowing that kind of executive end-run is a direct attack on the separation of powers,” said Ranking Member Raskin.
“Congress has, time and again, used its Constitutional authority to pass laws to create legal immigration pathways for those wanting to come to the United States. The Trump administration cannot ignore Federal law and pretend these legal pathways don’t exist. Executive orders — nor Stephen Miller’s sadistic fantasies — will never trump Federal law. If the White House wants to change immigration law, it must always come before Congress,” said Ranking Member Thompson.
The lawmakers warned that the Administration’s position could be used as a playbook by future administrations to circumvent acts of Congress and defy federal law.
In addition to Padilla, Raskin, and Thompson, the brief was also submitted by Representatives Pramila Jayapal (D-Wash.-07), Becca Balint (D-Vt.-AL), Troy A. Carter, Sr. (D-La.-02), Steve Cohen (D-Tenn.-09), Lou Correa (D-Calif.-46), Jasmine Crockett (D-Texas-30), Jesús G. “Chuy” García (D-Ill.-04), Dan Goldman (D-N.Y.-10), Al Green (D-Texas-09), Pablo José Hernández (D-P.R.-AL), Henry C. “Hank” Johnson, Jr. (D-Ga.-04), Sydney Kamlager-Dove (D-Calif.-37), Ted Lieu (D-Calif.-36), Lucy McBath (D-Ga.-06), LaMonica McIver (D-N.J.-10), Jerrold Nadler (D-N.Y.-12), Nellie Pou (D-N.J.-09), Delia C. Ramirez (D-Ill.-03), Deborah K. Ross (D-N.C.-02), Mary Gay Scanlon (D-Pa.-05), Eric Swalwell (D-Calif.-14), Shri Thanedar (D-Mich.-13), and James Walkinshaw (D-Va.-11).
Full text of the brief is available here.