Democrats urge Supreme Court to preserve Congress’ power over asylum claims

WASHINGTON (CN) — A group of congressional Democrats has implored the Supreme Court to block President Donald Trump from reinstating an abandoned immigration policy that would allow his administration to physically block asylum-seekers from entering the U.S.

And the lawmakers asked the justices to affirm the Constitution hands Congress, not the executive branch, final authority to change the country’s asylum policy.

The high court late last year agreed to review a 2024 Ninth Circuit decision striking down the Obama-era practice, known as “metering.” The policy, first enacted in 2016, allowed border agents to physically block migrants arriving at U.S. ports of entry from setting foot in the country if they were identified as likely asylum-seekers.

Though former President Joe Biden rescinded the government’s metering policy in 2021, the Trump administration last year asked the Supreme Court to walk back the Ninth Circuit ruling and make the practice legal to use once again. Opposing the challenge are nonprofit immigrant rights organization Al Otro Lado and a group of 13 asylum-seekers involved in the initial suit to halt metering.

The White House has told the justices the appeals court decision “defies the plain text” of federal immigration law by permitting migrants who have not yet physically entered the U.S. to apply for asylum.

And by ruling metering unlawful, the administration contended, the lower court had deprived the executive branch of “a critical tool for addressing border surges” and preventing “overcrowding” at ports of entry.

But in an amicus brief filed with the high court and published Wednesday, congressional Democrats countered that lawmakers had already said people who merely arrive at the U.S. border can apply for asylum, even if they are not physically in the country.

Writing in their friend-of-the-court brief, Maryland Representative Jamie Raskin, Mississippi Representative Bennie Thompson and California Senator Alex Padilla argued the 1996 Illegal Immigration Reform and Immigrant Responsibility Act preserved such a right.

“The statute’s text, structure and legislative history all confirm that asylum is available to individuals who arrive at the border, not only to those already physically present inside the United States,” the lawmakers said. “This court has consistently read the statute the same way.”

The group of Democrats also claimed the Trump administration’s interpretation of the law would effectively transfer immigration lawmaking authority to the executive branch and away from Congress. They argued the legislature has repeatedly rejected bills that would limit asylum to migrants who arrive through ports of entry or require people to apply for asylum from abroad.

The lawmakers also accused the executive of taking advantage of the conditions created by previous use of metering — pointing out that the Trump administration had claimed migrants who have not crossed the U.S. border are not subject to asylum law, sidestepping the fact border agents have historically prevented asylum-seekers from entering the country.

“The court should not endorse an interpretation that rewards the executive for manufacturing the conditions on which its preferred reading depends,” said the Democrats.

In a statement, Raskin argued the Trump administration should ask Congress to make changes to asylum law, branding the Supreme Court petition an “executive end-run” and a threat to separation of powers.

“Congress decided who may apply for asylum and how the process works because we have power over immigration,” said the top Democrat on the House Judiciary Committee. “The president cannot erase and overthrow those decisions by physically blocking access to the legal process.”

Padilla called metering an “inhumane” policy and a “clear violation” of federal law. “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.”

The practice of metering began informally under former President Barack Obama, who in 2016 ordered border agents to turn away newly arriving migrants amid a surge of asylum-seekers from Haiti. The first Trump administration in 2018 issued formal metering guidance for the southern border, instructing border security to physically block migrants from stepping onto U.S. soil.

Immigration advocacy groups have estimated that, within a year of its enactment, the Trump administration’s policy of border turn-backs left tens of thousands of migrants stranded in Mexican border cities as they waited for an opportunity to begin the asylum application process. Some people were forced to wait as long as six months for a chance to apply.

The Supreme Court in November agreed to hear the Trump administration’s petition to reinstate metering. Oral arguments in the case are scheduled for March.

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