In the weeks before the midterms, even those Trump administration officials who fought bitterly with each other over how to curtail illegal immigration learned they could agree on a few things.
First, of the measures most likely to be approved by the president, all were likely to lead to a lawsuit.
But second, when sued, they believed they would ultimately prevail. According to the two senior officials, they think that with Kavanaugh in place, the Supreme Court will rule in their favor.
Kavanaugh, who took the spot of the more moderate Justice Anthony Kennedy on Oct. 6, is known for his conservative opinions that often side with the executive branchs assertion of power.
Migrants, part of a caravan traveling en route to the United States, ride in a truck on the road that links Tapanatepec and Santo Domingo Ingenio, near Santo Domingo Zanatepec, Mexico, on Nov. 7, 2018.Carlos Garcia Rawlins / ReutersPresident Donald Trump teased the plan in vague terms in a speech from the White House last week, vowing to block any immigrants caught crossing the border between designated ports of entry, even if they made a claim for asylum.
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The administration published the rule Thursday, with a signed proclamation by the president by Friday morning. It is expected to place all future illegal border crossers — those arrested between ports of entry — into detention with expedited deportation, regardless of whether they make an asylum claim.
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Previous executive actions on immigration, including the Trump administrations defense of the travel ban and its opposition to the Obama administrations Deferred Action for Childhood Arrivals program (DACA,) have landed in federal court. The travel ban was ultimately upheld by the Supreme Court and DACA is making its way there.
The hardline measures the White House is preparing to take to bar immigrants caught crossing the border illegally from claiming asylum are expected to follow the same path.
Although the Trump administration expects to be enjoined and stopped in the near term, they believe a policy based on the discretionary authority of the president over who is admitted to the U.S. will ultimately hold up in the Supreme Court, one of the officials said.
With Congress stalled on immigration reform, an executive action that is ultimately upheld in court is the best alternative, the other official said.
The Department of Homeland Security, which oversees U.S. Customs & Border Protection and Immigration and Customs Enforcement, declined to comment on its legal strategy.
The American Civil Liberties Union, which led lawsuits to stop the travel ban and to reunite families separated by Trumps “zero tolerance policy,” is prepared to sue again.
“If the administration announces a ban on asylum for those who enter between ports of entry, we will be prepared to go to court as necessary,” said Lee Gelernt, deputy director of the ACLUs Immigrants Rights Project. “But we will wait to see precisely what is put into place.”
All those harassing, mocking, and erasing Ford are telling other survivors that speaking up isnt worth it, that they should keep quiet or risk having their lives destroyed. The only ones sending a different message are the survivors and others who have come forward to support Ford. They are not in the Senate or the Oval Office, and they dont decide who gets to be on the Supreme Court. But they are the ones with a movement behind them, and they are the ones who are growing in their power.
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Other legal experts and immigration advocates have said the policy would be in violation of domestic and international law. They cite international treaties that say an asylum seeker can make a legitimate claim anywhere, regardless of how they enter.
WASHINGTON — It was solemn, dignified and brief — the antithesis of the prolonged, bitter, circuslike spectacle that preceded it. Yet when the Supreme Court formally welcomed Brett M. Kavanaugh as an associate justice on Thursday, there were still echoes of the rancor his nomination to the court ignited.
Justice Kavanaugh skipped the most public element of the ceremony, a traditional walk down the courts front steps with Chief Justice John G. Roberts Jr., out of an abundance of caution, due to security concerns, according to a spokeswoman for the court, Kathleen Arberg.
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Inside the majestic chamber, where members of Washingtons Republican establishment mingled amid the marble columns before the investiture began, there were reminders not just of the contentious confirmation process but also of the turmoil on the Trump legal team, which deepened this week after President Trump fired Attorney General Jeff Sessions.
Brett Kavanaugh has been sitting on the Supreme Court since October 9. On Thursday, the president and first lady were present at his formal investiture ceremony, during which Kavanaugh sat in a special mahogany chair once used by Chief Justice John Marshall. For him, the fight is over; his lifetime appointment to the highest court in the country has begun.
A view from the courtroom: The investiture of Justice Brett Kavanaugh
Around Justice Kavanaugh was a vivid tableau of Mr. Trumps Washington, a city rived by the battle over the Supreme Court and shadowed by questions about the rule of law. For about 15 minutes, many of the key players were gathered in the same room.
There was Mr. Trump, who used the partisan warfare over the Kavanaugh nomination to galvanize supporters during the midterm campaign and claimed afterward that it had helped cement a Republican majority in the Senate.
The battle is not being fought by Democratic dead-enders who cannot accept that Kavanaugh won confirmation despite the sexual misconduct allegations against him. Instead, the fight is being led by Sen. Chuck Grassley, the Republican chairman of the Senate Judiciary Committee, who is still angry at the way those unverified and in some cases evidence-free allegations sidetracked his committees work, and nearly the nomination itself.
There were Justice Kavanaughs wife, Ashley, and his parents, Everett and Martha, who had sat behind him in a Senate hearing room when he furiously defended himself against allegations that he had sexually assaulted Christine Blasey Ford when the two were in high school.
Grassleys unhappiness comes through in every page of a new 28-page report, accompanied by 386 pages of supporting documents, outlining the committees handling of the Kavanaugh case. One key point that comes out in the report is that Grassley and his staff investigators on the Republican side took each allegation against Kavanaugh seriously, no matter how far-fetched. Thats how the confirmation process almost ground to a halt.
There was Merrick B. Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, whose own nomination to the court was blocked by Republicans, leaving a legacy of Democratic grievance that shadowed Justice Kavanaughs path.
When Grassley said the committee found no evidence, he did not mean it did not try to find evidence. The committees efforts to substantiate the Ford allegation are well known; investigators got in touch with 17 people who might have had information relevant to Fords story. The FBI interviewed more. No one ever found any contemporaneous corroboration, or much corroboration at all, for Fords 36 year-old accusation.
Missing was Justice Ruth Bader Ginsburg — who fractured three ribs in a fall in her office on Wednesday and was being treated at George Washington University Hospital — her empty chair a conspicuous reminder that the courts liberal wing is a fragile, dwindling minority.
Given what happened with Kavanaugh, it seems reasonable to predict that if President Trump has another Supreme Court opening, the opposition will throw everything it has at the nominee. The Judiciary Committee is prepared to handle accusations backed by evidence. But Grassley wants to make sure everybody knows it will not take part in another circus.
The ceremony itself was a formality: Justice Kavanaugh, 53, was sworn in last month and has already taken part in his first arguments on the bench. But the investiture amounted to one last victory lap for several of the major combatants in the confirmation battle.
Senator Lindsey Graham, the South Carolina Republican who delivered a stem-winding defense of the justice at his hearing, was on hand. So was the Republican leader, Senator Mitch McConnell of Kentucky, who maneuvered the nomination through the Senate, and Donald F. McGahn II, the recently departed White House counsel who championed Justice Kavanaugh from the start.
The proceedings also captured the turmoil of the Trump administration a day after the president fired Mr. Sessions and rekindled fears about the future of the Justice Departments investigation of Mr. Trumps ties to Russia.
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With Mr. Sessions abruptly cashiered, the acting attorney general, Matthew G. Whitaker, represented the Justice Department. He was joined by the deputy attorney general, Rod J. Rosenstein, whom he had just replaced as the supervisor of the special counsel, Robert S. Mueller III.
Kavanaugh report shows why the presumption of innocence is key | TheHill
Mr. Whitaker made a motion to have the clerk of the court read Justice Kavanaughs presidential commission. Chief Justice Roberts, without particular deliberation, granted the motion.
The clerk, Scott Harris, read out the commission from parchment, its flowery language granting Justice Kavanaugh the privileges of a justice during his good behavior. It was signed by Donald J. Trump and Jefferson B. Sessions.
Justice Kavanaugh, who faced his seven colleagues from a chair once used by Chief Justice John Marshall, then mounted a few steps to the bench, where Chief Justice Roberts administered the judicial oath.
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Justice Kavanaugh stood next to Justice Ginsburgs vacant chair, his right hand in the air, speaking in a voice now familiar from his televised hearing. Afterward, he walked to the far side of the bench, taking a seat reserved for the most junior justice, next to Justice Elena Kagan.
Mr. Trump and the first lady, Melania Trump, smiled and applauded, and the president chatted and laughed with those seated around him.
The president did not speak in the court. But on Wednesday, he made clear how beneficial he believed the battle over Justice Kavanaugh had been for the midterms, particularly in the Senate, where Republicans expanded their majority.
The voters, he said at a news conference, clearly rebuked the Senate Democrats for their handling of the Kavanaugh hearings.
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That was a factor, he continued. I think maybe a very big factor. The way that was handled, I think, was — tremendous energy was given to the Republican Party by the way they treated then-Judge Kavanaugh, now Justice Kavanaugh.
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During the final days of the campaign, Mr. Trump exploited the passions generated by the confirmation hearings — even claiming, misleadingly, that the accuser of Brett Kavanaugh had recanted her allegations. It was all a fake, he said at a rally in Cape Girardeau, Mo.
Dr. Blasey never recanted her allegations that Justice Kavanaugh assaulted her in a Maryland bedroom when they were teenagers. Mr. Trump was apparently referring to another accuser, Judy Munro-Leighton, whose allegations never played a major part in the dispute over Justice Kavanaugh. But the presidents misdirection was deliberate — and, analysts said, effective.
Justice Kavanaugh had plenty of supporters in attendance, including a visible contingent from the George W. Bush administration, where he served as staff secretary. Alberto R. Gonzales, an attorney general under Mr. Bush, worked the room before the ceremony started. Nearby was Harriet Miers, whose nomination to the court was withdrawn under intense opposition in Congress.
Also on hand were former clerks of Justice Kavanaugh, some of whom had risen to his defense when Dr. Blasey accused him of assault, and members of the District of Columbia Circuit, where he served for 12 years before Mr. Trump nominated him to the Supreme Court.
Leonard A. Leo, an influential lawyer who helped steer Justice Kavanaughs selection through his right-wing legal organization, the Federalist Society, watched from one of the front rows.
Mr. Rosenstein — who last year had presented Neil M. Gorsuch, Mr. Trumps first nominee to the court — played a less formal role this time around. Looking relaxed and wearing a broad smile a day after he yielded responsibility for the Mueller investigation, Mr. Rosenstein walked over to shake hands with Justice Kavanaughs parents.