As the Supreme Court wraps up another historic term, much of our attention is focused on blockbuster decisions still to come. Birthright citizenship. Transgender athletes. The scope of presidential power. The role of nationwide injunctions.
Those rulings will undoubtedly dominate the headlines.
But before we rush ahead, two immigration decisions handed down last week deserve our attention. They may not have generated media frenzy, but they reveal a great deal about the constitutional philosophy of today’s Supreme Court—and they raise a larger question about the kind of country we aspire to be.
Both cases ended with familiar 6-3 votes.
Both expanded the practical authority of the Executive Branch over immigration policy.
And both left me with the same overwhelming reaction.
Not anger or outrage,
but . . .
Sadness.
In one case, the Court allowed the Department of Homeland Security to terminate Temporary Protected Status (TPS) for hundreds of thousands of immigrants from countries devastated by war, political instability, or natural disasters while litigation continues.
In the second, the Court permitted the administration to continue enforcing significant restrictions on asylum claims made by migrants waiting at or near the southern border.
Supporters of these rulings see them as straightforward applications of constitutional structure. Immigration policy, they argue, belongs primarily to Congress and the President. Courts should not substitute their policy preferences for those of elected officials unless Congress clearly authorizes judicial intervention.
There is intellectual honesty in that position. The Constitution separates powers for a reason. Judges are not legislators. Nor are they presidents. The majority believes its responsibility is to interpret the law, not to write immigration policy.
That deserves to be acknowledged.
The three dissenting Justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—saw something different.
In the TPS case, they argued that allowing humanitarian protections to disappear before courts determine whether the government’s actions are lawful risks causing irreversible harm. Once families lose legal status, jobs, homes, or are deported, those injuries cannot easily be undone, even if the challengers ultimately prevail.
In the asylum case, the dissent emphasized that Congress created our asylum laws because the United States recognized a moral and legal obligation to hear the claims of people fleeing persecution. Procedural barriers that prevent those claims from being meaningfully considered, the dissent warns, threaten to undermine the protections Congress intended to provide.
Reasonable lawyers can disagree over which interpretation better reflects the law.
That is how appellate judging works.
But there is another conversation worth having.
Law answers one question:
What may the government do?
Justice asks another:
What should the government do?
Those questions are not always identical. Our courts are constrained by statutes and constitutional text.
But don’t we, the people, have a moral obligation to ask whether the policies those laws permit reflect the highest ideals of America?
Compassion is not a constitutional doctrine.
Fundamental fairness is not always found in statutory language.
Yet both have long been part of America’s national character.
Or at least I once believed they were.
I’m not “soft” on immigration, but these cases strike a personal chord.
I am Jewish.
My father’s Family immigrated to the United States from Russia.
My mother’s family immigrated from Poland.
Like millions of Jewish families, mine survived because someone, somewhere, eventually opened a door.
Others were not so fortunate.
History remembers refugees who found safety, but also remembers ships that searched for sanctuary only to be turned away. It remembers nations that concluded compassion was someone else’s responsibility.
Immigration to America—and later, to Israel—saved my people from virtual extinction.
That history shapes how I read these decisions.
As children, many of us learned about the Statue of Liberty before we ever opened a constitutional law textbook.
“Give me your tired, your poor, your huddled masses yearning to breathe free…”
No, those words are not part of the Constitution. They do not require the United States to accept every person seeking entry. And every nation, including this one, has the right to secure its borders and establish reasonable immigration laws.
But those words have always represented something larger than legal doctrine. They described an aspiration.
An identity.
A promise that America would strive to be a refuge for those fleeing oppression rather than simply a fortress protecting privilege.
The countries most immediately affected by these decisions include Haiti, Syria, Venezuela, Somalia, Ethiopia, and others struggling with extraordinary hardship.
These are nations whose people often arrive not because America is convenient, but because home has become dangerous.
The Supreme Court did not decide these cases based on race, religion, or ethnicity. Nor did it endorse any inflammatory language previously used by politicians about these countries.
Its legal question was much narrower: how much discretion has Congress given the Executive Branch?
But this is the administration that called those countries “shitholes.” When broad discretion is concentrated in one administration, that administration inevitably makes profoundly human choices.
Who receives temporary protection?
Who is allowed to seek asylum?
Whose fear deserves a hearing?
Whose family is separated?
Whose suffering counts?
While those are legal decisions, they are also moral ones.
This week, as America celebrates its 250th birthday, commentators across television and social media will rightly celebrate our extraordinary accomplishments.
I will join them.
Despite our flaws, the United States remains history’s greatest experiment in constitutional democracy.
But loving my country does not require me to pretend it is perfect.
Real patriotism demands something better.
It asks us to celebrate our achievements while remaining honest about our failures.
It asks us not only what America has been, but what America should become.
The Supreme Court will soon decide cases involving birthright citizenship, transgender athletes, and presidential authority.
Taken together with last week’s immigration rulings, they may reveal the defining constitutional theme of this Court:
Who decides?
Congress?
The President?
The States?
The Courts?
Those are profoundly important questions.
But another question matters just as much.
What vision of America are those decisions creating?
I’m a lawyer. I understand why judges distinguish between legal authority and personal compassion.
In my more important role as a citizen, I cannot ignore the human consequences that follow from those legal decisions. That tension has always existed. Immigration debates are uniquely difficult for every generation.
But I cannot read these cases without thinking about my own family’s story. Had earlier generations consistently closed America’s doors to those escaping oppression, my family might never have found refuge here. And neither would countless other Americans whose grandparents or great-grandparents arrived with little more than hope.
Justice requires fidelity to the law. “America” requires memory and a conscience.
As we celebrate 250 years of American independence, I hope we remember that many of us are here today because, somewhere in our family’s past, this nation chose compassion over fear.
And I hope and pray that this remains part of the America our grandchildren inherit.
Mark M. Bello is an attorney and award-winning author of the Zachary Blake Legal Thriller Series, ripped-from-the-headlines, realistic fiction that speaks truth to power and champions the rights of citizens in our justice system. These novels are dedicated to the social justice movement. They educate, spark discussion, and inspire readers to action. One of these was “Betrayal of Justice, a blistering novel about presidential misconduct and hypocrisy” For more information, please visit www.markmbello.com.
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