Editorial illustration
The future of border security could hinge on a grammatical dispute that would make your high school English teacher proud. The Supreme Court heard oral arguments Tuesday in a case that may determine whether the Trump administration can implement “metering” — a policy allowing Border Patrol to indefinitely stop asylum seekers at the border and delay processing their claims, as outlined in the Supreme Court’s official docket for the case.
At stake is the interpretation of a single phrase in the Immigration and Nationality Act: “arrive in.” Under current law, foreign nationals who are “physically present in the US” or who “arrive in the US … at a designated port of arrival” must be allowed to submit asylum applications, according to the text of the Act as cited in court filings. But what does it mean to “arrive in” the United States?
The Trump administration argues that individuals blocked in Mexico haven’t technically “arrived in” the United States yet, based on arguments presented by administration lawyers during the hearing. Immigration advocacy groups counter that arriving at a port of entry — standing at the threshold about to step over — constitutes arrival, as one attorney for the groups stated in oral arguments. Justice Samuel Alito pressed the issue during arguments, asking whether someone who knocks on your front door has “arrived in” your house; he noted, “The person may have arrived at the house,” drawing a distinction between “arrive at” and “arrive in” that became a central focus of the debate, per the Supreme Court transcript.
Justice Elena Kagan, often described as a textualist, appeared sympathetic to the administration’s interpretation at times, according to observers of the proceedings. Meanwhile, Justice Brett Kavanaugh took issue with the government’s reliance on parenthetical punctuation in the statute, questioning whether material in parentheses should be treated differently than text separated by commas or dashes, as recorded in the transcript. The metering policy was used during Trump’s first administration but isn’t currently in place; a lower court blocked the administration from reinstating it, which is why the case reached the Supreme Court, per court documents.
The administration’s lawyers argue that metering is a critical tool to prevent border facilities from becoming overwhelmed during surges in illegal crossings, as stated in their briefs. Justice Ketanji Brown Jackson pushed for the Court to punt on the issue entirely, arguing that the justices shouldn’t rule on hypothetical scenarios; she suggested vacating the lower court’s decision and waiting until an actual metering policy is implemented before weighing in on the merits, according to the hearing transcript.
The case highlights how seemingly minor statutory language can have major policy implications. Congress wrote the law using present tense verbs, which immigrant rights attorneys argue was intentional — meant to cover people in the process of arriving, not just those who have already completed their entry, based on their arguments in court. A decision is expected by the end of June, and it could significantly reshape how asylum claims are processed at the southern border.
For now, the justices are left parsing prepositions and debating whether standing at the border wall — which sits entirely on U.S. soil — counts as being “physically present in the US,” as discussed in the oral arguments. And sometimes the fate of national policy really does come down to grammar.
Providence watches over the bold.
About The Author
