Good analysis:

Since taking office, Donald Trump has issued nearly twenty Presidential actions on immigration, and more rule changes and regulations than one can easily count. Nearly all of them—including the travel ban, the cancellation of daca, and measures to end asylum applications at the Southern border—have prompted legal challenges, and, in several instances, federal judges have issued nationwide injunctions blocking the Administration’s plans. This situation has not deterred the White House, though, and, a few months ago, a senior D.H.S. official told me why. “The idea is, ‘don’t waste time trying to anticipate the risk of litigation,’ ” the official said. “Everything will get challenged in the lower courts anyway. We’ll win at the Supreme Court.”

Last week, in an unsigned, 5–4 decision, the justices lifted an injunction against the Administration’s “public charge” rule, which will use immigrants’ financial status to determine their qualification for green cards and, eventually, citizenship. (The rule will make it much more difficult for anyone who may need to rely on public assistance to become a legal permanent resident.) A few days later, the White House expanded Trump’s travel ban, to include travellers from six additional countries, among them Nigeria. District-court judges had repeatedly blocked the previous ban, but the Supreme Court eventually upheld it, in June, 2018, on the ground that the President has unfettered authority to shape immigration policy for national-security purposes. This time, the Administration didn’t bother to invoke any such purpose. A D.H.S. official admitted to reporters that the extension “focussed on people who want to reside in the U.S., not people who want to visit,” meaning that travellers from the countries in question can enter the United States without incident, as long as they have no intention of staying here. “How can that be national-security motivated?” a former State Department official asked me.

If the Administration appears to be growing bolder, it may be because, three years into the President’s first term, the nation’s highest courts are starting to bolster his agenda. In July, 2019, the Supreme Court—which, by then, included two Trump appointees, Neil Gorsuch and Brett Kavanaugh—lifted an injunction on a Presidential proclamation calling for the use of military funding to build the border wall. Two months later, the Justices allowed Trump’s asylum ban at the border to stand, pending further appeals. Sometime this summer, they’re expected to issue a ruling in a separate case, on whether the Administration’s cancellation of daca was legal. Earlier this week, Trump, in his State of the Union address, thanked the Senate Republicans for confirming Gorsuch and Kavanaugh, and boasted that “my Administration is restoring the rule of law.” He has successfully appointed at least a hundred and eighty-seven judges to the federal judiciary and, he said, there are many more “in the pipeline.”

The legal landscape has already begun to reflect his influence. The Ninth Circuit Court of Appeals, for instance, which the President used to routinely attack as a “complete and total disaster,” rife with “Obama judges,” has ten new conservative jurists. When Trump took office, there were eleven more Democratic appointees than Republican appointees on the circuit; now, on a court with twenty-nine judges, there are just three more Democratic appointees. Generally, it isn’t the entire court that hears cases but, rather, panels of three judges who are selected at random. This past May, one such panel lifted an injunction that a federal judge had issued to block a policy called the Migrant Protection Protocols, which has forced more than a hundred thousand Central Americans seeking asylum in this country to wait in dangerous Mexican border cities.

The main fight in the shifting legal battle against the Administration’s policies now turns on what was once a semi-obscure matter of academic debate: whether it’s appropriate for federal judges to issue nationwide injunctions to halt those policies. The practice has always been fraught, but it has become especially so in the past several years. Since a federal judge can single-handedly stall a national policy, litigants have increasingly opted to file lawsuits in jurisdictions that are ideologically sympathetic to their causes. During the Obama years, conservative groups and Republican attorneys general tried to stop executive actions on immigration and health care by challenging them before judges in South Texas. When Trump became President, advocates sued the government in California, New York, Maryland, and other liberal states, prompting a spate of injunctions against the Administration.

The most obvious explanation for the rise of injunctions in the Trump era is, as Lee Gelernt, a lead litigator at the American Civil Liberties Union, told me, the fact that “there’s never been an Administration that tried to do so many unlawful things, nationwide, at once.” Senior members of the Administration, however, blame their legal setbacks on rogue judges and a faulty system. Last May, in a speech before the American Law Institute, in Washington, Attorney General William Barr called the issuance of nationwide injunctions “perverse,” and added that “rather than an orderly pattern of litigation in which the government loses some cases and wins others . . . we have an inter-district battle fought with all-or-nothing injunctions.” Last week, in a concurring opinion on the Supreme Court’s decision on the public-charge rule, Justice Gorsuch hinted that the Court will likely take up the issue at some point. “The routine issuance” of injunctions, he wrote, “is patently unworkable, sowing chaos.”

As the battle has swung back and forth between the executive and the judiciary branches, it has bypassed the legislative branch. “Congress has been completely out of the conversation,” Sarah Pierce, an analyst at the Migration Policy Institute, told me. “The government will continue to lean on the executive to develop policies, and on the courts to draw clear boundaries around what the executive can and should do. But, if the courts can’t do that, if they’re impeded from stopping the executive when it’s gone past what its authority allows, then we’re going to have a one-sided conversation.” The public-charge rule is a case in point. The policy itself is technical: for decades, the federal government could withhold permanent legal status for certain immigrants who might have become overly dependent on the state as recipients of social services, but the formula for how the government decides who is ineligible, and why, has been stable since the late nineteen-nineties.

Now the Administration plans to drastically expand the list of factors that will count against a green-card applicant, including the use of non-cash benefits, such as food stamps and Medicaid. It will also raise the threshold for how much money a person must earn each year in order to avoid being labelled as a potential public charge. The changes will disproportionately affect immigrants from Latin America, Asia, and Africa, and observers argue that this is by design. According to the Migration Policy Institute, the policy is a “modern-day version of the National Origins Quota Act of 1924,” a law that “sought to tilt immigration to Western Europe.”

Such a radical rule change would not pass the current Congress, so the White House made it unilaterally, with the Supreme Court’s blessing. “The Administration has looked hard for things that can be done administratively to tighten the screws on legal immigration, to bring the numbers down, and change the composition of who gets to come,” Barbara Strack, a veteran official at the Department of Homeland Security, who recently retired, told me. “The public-charge rule is a significant part of that.”

Without nationwide injunctions to counterbalance aggressive executive actions, the President can make immigration policy in ways that are virtually unchecked. I asked several civil-rights lawyers how they would now fight the White House on any number of sweeping new policies. Last month, for example, a federal judge blocked another executive order designed to restrict the refugee-resettlement program. Will that injunction stand? The Administration, meanwhile, is preparing to take further action on asylum seekers and on the treatment of immigrant children. The lawyers didn’t have an immediate answer, because there isn’t one. Gelernt said, “You’d have to try to pull together class-action suits, or bring a lot of different cases at once. It would take a long time, and would be really hard. In the meantime, your clients would suffer irreparable harm.”