Blame Congress, not SCOTUS on immigration cases

by Marty Wilde

Three immigration cases reached the Supreme Court this term. The court’s decisions were entirely predictable, from a legal perspective. The court upheld the end of temporary protected status for Syrians and Haitians. The court let border officers meter the flow of asylum seekers at ports of entry. And in Trump v. Barbara, the court affirms birthright citizenship, rejecting an executive order written to abolish the right.

These are not signs of a court turning against immigrants. The court did the narrow work of a court, which is to interpret the law. The justices read the words Congress wrote and the words the framers ratified. The fight people want to have is not with nine judges. The fight belongs with a Congress that has failed to adjust the law to reflect American values.

Let’s start with what Americans want, because the polling is clear and steady. Two values hold across party lines. First, immigrants should follow the rules, whatever the rules are. Second, enforcement should weigh a person’s ties to this country and apply the law fairly. We differ on many things, including the appropriate level of immigration generally, but a majority agree on these.

The numbers back both: 64% of voters prefer a path to legal status over mass deportation, so long as immigrants meet set requirements. The phrase “meet requirements” carries the first value. People want a lawful path, and they want migrants to use one.

The second value appears the moment you ask about roots: 73% support deporting immigrants who commit crimes, and support climbs to 83% for violent convictions.

Then the picture flips. Only 44% support deporting longtime residents who hold jobs and carry no criminal record. Only 28% support deporting parents of citizen children. Americans want enforcement aimed at criminals, not at neighbors.

But here is the problem: the law almost never weighs ties. A person who has lived here 20 years, raised citizen children, and paid taxes stands in nearly the same legal position as someone who crossed last week. The law does not see the difference most Americans see.

So enforcement lurches between underenforcement and overenforcement, depending on the prevailing political winds. People feel the whiplash and blame the courts, when the courts only enforce the text in front of them.

For too long, we have looked to the courts to enforce our values, rather than our laws.

Look at what each ruling actually held. In the TPS cases, Congress wrote a discretionary tool and barred judicial review of the secretary’s call. The statute hands the executive the power to start relief and to end relief. The court read those words as they were written, not as how some might like them to be.

At the border, the asylum statute attaches the right to apply to physical presence in the United States. An asylum seeker standing in Mexico has not arrived. The court read “arrives in the United States” to mean what the phrase means in plain speech. The justices also refused to bless a total bar on asylum, leaving the harder question for another day.

On birthright citizenship, the 14th Amendment and a century of precedent in United States v. Wong Kim Ark will settle the question. Birth on American soil conveys citizenship. The reason even this court will protect the rule is that the text is clear.

I will not pretend these were easy calls. Each decision drew sharp dissents, and the asylum majority admitted one counterargument had force. Honest people read statutes differently. But contested is not the same as political. The justices argued about words, not policy. We may legitimately see their motives as political, but they largely do continue to constrain themselves with the text of the law.

The headlines oversell the practical stakes. TPS was never built to grant permanent residence to everyone fleeing hard conditions. Congress built a temporary, discretionary tool. People with a real fear of persecution retain the right to apply for asylum, an individual inquiry into individual danger. People without such fear go home.

The larger picture favors the design. The people who manage to flee are often the ones a broken country needs most to rebuild: the doctors, the engineers, the teachers. Permanent status here creates a brain drain that we should oppose. Expect future presidents to keep TPS windows short for exactly this reason.

The border ruling moves crossings more than it stops them; meter the flow at one port, and families will simply walk to another stretch of border, step across, and claim asylum from American soil, as the law allows. The law ties asylum to presence, not to the port. Push hard on the official crossings and you push people into the desert, away from the orderly process everyone claims to want.

None of this answers the question worth asking: What should the law be? 

The question does not belong to nine justices. The question belongs to Congress. The court told us what the law says. Only Congress rewrites the law. Birthright citizenship is the lone exception, fixed in the Constitution, beyond the reach of any ordinary majority.

A split Congress after the midterms might force the conversation. I would like to believe so, but history argues against me. The bipartisan border deal collapsed in 2024. Divided Congresses have failed at immigration for two decades. The values are ready. The will is not.

The parties will likely cater to their primary voters, who, on one side, oppose even lawful immigration and, on the other, oppose almost all enforcement. These minorities don’t reflect the values of the majority of Americans, but they do reflect the values of the people who vote in party primaries in a political environment where the parties have conspired to reduce truly competitive general elections.

The American people know what they believe: Follow the rules; weigh the ties; be fair. The law has yet to catch up. The court will not fix the gap. We elected the people who write the law.

Public domain image courtesy Wikimedia Commons, credit: Fred Schilling, Collection of the Supreme Court of the United States.

Marty Wilde represented central Lane and Linn counties in the Oregon legislature. For more of his Letters From a Recovering Politician, subscribe at https://martywilde.substack.com/subscribe.

Copyright (c) 2026 Marty Wilde. All rights reserved. Reprinted with express written permission of the author.