Former federal prosecutor suggests language in SCOTUS bump stock ban case could overturn Biden's order limiting asylum claims

By 
 June 20, 2024

President Joe Biden recently took executive action to ostensibly limit the number of migrants permitted to make asylum claims after illegally crossing the nation's overwhelmed southern border.

A liberal former federal prosecutor is now suggesting the Supreme Court may be forced to rule against that order and pointed to language in the court's recent decision vacating the federal bump stock ban as the reason why, according to the Washington Examiner.

To be clear, the former prosecutor is less concerned about the constitutionality of Biden's order and is instead attempting to play a "gotcha" game with conservative Justice Samuel Alito.

Attempting to use Alito's words against him

Earlier in June, President Biden issued an executive order that purportedly would strictly limit asylum claims from newly arrived migrants when encounters between ports of entry surpassed a certain threshold, and pro-migrant groups wasted no time in threatening to sue to block the implementation of the order.

Newsweek reported that former Obama-era U.S. Attorney Joyce Vance suggested on her podcast that the language used by Justice Alito in his concurring opinion to the majority's bump stock ban decision -- which knocked the ATF for lacking statutory authority to regulate the devices -- could force the Supreme Court's conservative-leaning majority to override Biden's effort to restrict asylum claims at the border.

In his Garland v. Cargill concurrence, Alito wrote that "there is simply no other way to read the statutory language" about the federal ban on machineguns in relation to the ATF's unconstitutional ban on bump stock attachments and that "the statutory text is clear, and we must follow it."

"The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning," he continued of the event that prompted the ATF's unilateral regulatory action, and noted that "an event that highlights the need to amend a law does not itself change the law’s meaning."

"There is a simple remedy for the disparate treatment of bump stocks and machineguns," Alito added. "Congress can amend the law -- and perhaps would have done so already if ATF had stuck with its earlier interpretation. Now that the situation is clear, Congress can act."

Applying Alito's Cargill concurrence to Biden's order limiting asylum claims

Newsweek reported that former U.S. Attorney Vance suggested on her podcast that Justice Alito's Cargill concurrence and its emphasis on adhering to statutory text and congressional authorization could place him and other conservative-leaning jurists in a difficult position if a challenge to President Biden's executive order on asylum claims ever came before them.

"You have to wonder, what will Justice Alito do?" Vance said. "You know, Justice Alito, who just said a tragedy like Las Vegas can't change the language in the law, right? We are bound by the language and the statutes even in the face of emergency or tragedy."

"Well, now you got a statute that clearly talks about when people can claim asylum," she added about separate statutes that allow migrants to make asylum claims that, in her view, would override any claimed authority to limit those claims in Biden's order.

This isn't the "gotcha" moment she thinks it is

The liberal former federal prosecutor may think that she has caught Justice Alito in a "gotcha" moment and can hold him to his words in Cargill to make him rule against an executive order limiting asylum claims that he, as a conservative, presumably supports -- but Vance may have tried to get too cute by half in that effort.

Per the American Immigration Council, President Biden cited in his order Section 212(f) of the Immigration and Nationality Act, which was passed by Congress and authorizes a president to "by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."

In other words, even if Alito and the other conservative-leaning justices are forced to abide by "the clear language of the statute" in a future challenge of Biden's order, they can merely cite the same congressionally passed statute as Biden that quite clearly grants him the authority to supersede the nation's immigration laws when deemed necessary.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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