The Supreme Court is Listening to the Debate Politicians Refuse to Have

Largely absent from the Democratic presidential debates, immigration has been ever-present in a possibly more important venue – the Supreme Court. While oral arguments concerning the fate of the Deferred Action for Childhood Arrivals (DACA) have garnered the most headlines, there have been other critical questions brought before the nation’s highest court.

On a busy Monday, the Court heard from lawyers on either side of the question of the government’s power to pursue “expedited” deportation of asylum seekers detained near the border. In this particular instance, the asylum seeker was a Sri Lankan man who fled from alleged political persecution and was apprehended near San Diego in 2017. An immigration judge determined he did not meet the “credible fear” test and he was slated for rapid deportation.

Deputy Solicitor General Edwin Kneedler made the argument that nothing in the law “affirmatively establishes a right of judicial review of this sort of screening determination that Congress decided could be attached to the expedited removal system.” It was a position with which the conservative majority seemed to favor, but the decision comes down in July.

The justices also heard from lawyers representing Nidal Khalid Nasrallah, a Lebanese national who obtained a green card, but would subsequently be sentenced to one year in prison for buying nearly $600,000-worth of stolen cigarettes. He was ordered removed to his home country, but Nasrallah appealed claiming that he would be tortured upon his return. Where the Court will land when it issues a decision in late June appears unclear as Justice Neil Gorsuch seemed skeptical of the government’s case, saying it ”sounds pretty metaphysical.”

A day later, the Supreme Court did issue a 5-4 ruling that affirmed the right of states to prosecute illegal aliens for identity theft when they use false documents, including Social Security numbers, to obtain employment.

“Today’s ruling makes clear that state identity theft laws apply to everybody, including offenders who are in the country unlawfully and apply for a job,” said Kansas State Attorney General Derek Schmidt of the important victory for the American worker.

In other cases, the divide among the justices was less clear. For example, the justices took up U.S. v. Sineneng-Smith, a case considering the question of whether a 1986 federal law really makes it a crime to “encourage” illegal immigration. This case involves an immigration consultant, Evelyn Sineneng-Smith, who billed her mostly Filipino clients approximately $3.3 million to obtain green cards, but did not tell her clients that the Labor Department program actually had expired.

According to Gabriel Chin of SCOTUSBlog, a non-partisan site covering the Supreme Court, it is uncertain where the justices will come down on the question of what it means to “induce” illegal immigration; and where, if at all, does the statute conflict with the First Amendment.

The packed Supreme Court docket demonstrates the justices’ willingness to tackle the sometimes thorny issue of immigration, a matter that the political class, particularly Congress, has run away from for far too long.

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