The Supreme Court's Next Big Immigration Case

The U.S. Supreme Court agreed this week to reenter the fractious national debate over immigration by taking up a new case, which asks whether asylum seekers who present themselves at the U.S. border may be lawfully turned away or whether they must instead be inspected by immigration officials and entered into the asylum system for further processing.

The case is Noem v. Al Otro Lado. According to the Immigration and Nationality Act, an alien “who arrives in the United States (whether or not at a designated port of arrival)…may apply for asylum.” In May, a divided three-judge panel of the U.S. Court of Appeals for the 9th Circuit held that for purposes of federal immigration law, an alien who had reached the U.S. border, yet was still on the Mexican side of that border, had “arrive[d]” in the U.S. “The phrase ‘arrives in the United States,’” the majority held, “encompasses those who encounter officials at the border, whichever side of the border they are standing on.”

Writing in dissent, 9th Circuit Judge Ryan Nelson argued that “no English speaker uses the term ‘arrives in’ to mean anything but being physically present in a location.” In the dissent’s view, “this statutory language is as unambiguous as it gets.”

The Trump administration now wants the Supreme Court to side with that dissent. “An alien on the Mexican side of the border may be ‘close to the United States,’” the government argued in its brief seeking review, “and may even have ‘arrived at the United States border,’ but he has not ‘arrived in the United States.’”

The immigrant rights group Al Otro Lado, by contrast, has urged the Supreme Court to reject the Trump administration’s “narrow” reading of the law. The Immigration and Nationality Act, the group pointed out, “states that any person who arrives ‘at a designated port of arrival’ will be inspected and may apply for asylum.” Thus, “a noncitizen who presents herself to a government official right at the border is…’at’ the port, just as someone standing at the front gate of a house is ‘at’ that house.”

We’ll find out sometime next year which one of these dueling statutory interpretations finds favor with a majority of the Supreme Court.

In 2014, I interviewed the great documentary filmmaker Ken Burns about his then-latest project, The Roosevelts, a sort of triple biography of Theodore, Franklin, and Eleanor Roosevelt. I have always enjoyed watching Burns’ films and this one was no exception. (My favorite of his films is The Civil War.)

But I also had some problems with The Roosevelts, and it was fun discussing those problems with Burns himself. “It was not our intention to make a puff piece,” he told me, “but a complicated, intertwined, integrated narrative about one hell of an American family.” In my view, he was only partially successful. Among other shortcomings, the film underplayed the Roosevelt family’s many abuses of political power. You can read more about it here.

I have Burns on the brain this week for obvious reasons. His latest film, The American Revolution, just premiered on PBS. I have only watched part of it so far, but I count myself a fan. I have especially enjoyed seeing a number of my favorite historians pop up on screen as talking heads. I was delighted to see Rick Atkinson, for example, who, as George Will has put it, now stands as America’s “finest military historian, living or dead.” If you haven’t yet read the first two published volumes of Atkinson’s trilogy on the American Revolution—The British Are Coming and The Fate of the Day—you should make haste to a bookstore.

I was even happier to see the late Bernard Bailyn. His monumental 1967 book, The Ideological Origins of the American Revolution, is a genuine classic that still makes for illuminating reading today. Bailyn died in 2020 at the age of 97, so kudos to Burns and his team for making a point of including this venerable figure in their film. It’s a nice tribute to Bailyn’s lasting contributions to the study of early American history.

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