Clarence Thomas Just Gave Border Agents a Terrifying New Power

Imagine you are a law-abiding green-card holder returning to the United States after visiting your parents abroad. At the border, you expect an easy entry; after all, as a lawful permanent resident, you generally do not need to seek admission anew each time you return from travel abroad. But when you present your documents to a border officer, he accuses you of committing a crime. You deny the accusation, because it is untrue, but the officer doesn’t care. He confiscates your green card and refuses to recognize that you are a lawful resident who has already been admitted to the U.S. Now he holds your fate in his hands: He can send you into detention or turn you away altogether. In the best-case scenario, he may “parole” you into the country as an “arriving alien”—forcing you into a legal limbo that makes you far more vulnerable to deportation and could stretch on indefinitely. All without the officer offering persuasive evidence that you committed a crime.

On Tuesday, the Supreme Court blessed this Kafkaesque nightmare by a 6–3 vote along the usual partisan lines. Justice Clarence Thomas’ majority opinion in declared that officers do not need “clear and convincing evidence” that a green-card holder committed “a crime of moral turpitude” before treating them as an “applicant for admission” who may be denied entry, detained, or (at best) conditionally allowed back in on parole. Indeed, Thomas expressly declined to say what, if any, burden the government bears at the border—an ambiguity that the Trump administration will surely exploit to throw green-card holders into deportation limbo. As Justice Ketanji Brown Jackson explained in dissent, “the court has now handed the government a massive blank check” to hollow out “the benefits and security that come with having a green card.”

The origins of Tuesday’s case illustrate its stakes. In 2012, a green-card holder named Muk Choi Lau returned to the United States after a trip to China. At that time, he faced criminal charges for selling designer-style shorts with a counterfeit trademark. As a lawful permanent resident, or LPR, Lau would typically be let into the country without hassle, deemed “already admitted” rather than “seeking admission.” But a border officer noticed the pending criminal charges and refused to formally admit him. Instead—playing prosecutor, judge, and jury—the officer deemed Lau to have committed “a crime involving moral turpitude.” And federal law permits the government to treat a lawful permanent resident who has committed such a crime as an “alien seeking admission” rather than someone already admitted to the country. The officer invoked this exception against Lau, snatching his green card and “paroling” him into the country. That move made Lau far more vulnerable to detention and deportation than if he had been admitted as an LPR.

Lau argued that Congress could not have intended to give individual border agents such vast discretion to upend the lives of green-card holders. He asserted that the government bore the burden of proving that a lawful permanent resident had committed a crime of moral turpitude before it confiscated someone’s green card at the border and plunged them into deportation purgatory. A lower court agreed, holding that the government had to prove, by “clear and convincing evidence,” that the individual committed this kind of offense.

Thomas tossed out that decision on Tuesday in an opinion that turns Congress’ statutory scheme on its head. To see why he is so egregiously wrong, first consider what the law in question actually says. It first lays out protections afforded to LPRs, declaring that they “shall not” be compelled to prove that they satisfy the requirements for legal entry “unless” one of six exceptions applies. So, as Jackson wrote in dissent, the “default rule” is that an LPR retains the ordinary rights of a permanent resident at the border. The government may abridge those rights only by establishing that the LPR fits within one of the exceptions.

Read more The U.K. Felled Its Sixth Prime Minister in 10 Years. Our Own Trump Is Creeping Closer.

“As a matter of logic,” Jackson wrote, this “sequence” puts the burden on the border officer to justify departure from the “default presumption.” That burden need not necessarily be “clear and convincing evidence.” It might instead be something lower, like probable cause. But the government must satisfy some meaningful evidentiary standard at the border before it may override the default rule and strip an LPR of the protections of permanent residency.

Now consider Thomas’ distortion of the congressional scheme. In his telling, the government may simply accuse an LPR of committing a crime, strip them of the protections that ordinarily come with permanent residency, and then spend years gathering the evidence needed to retroactively justify that decision. It need only prove its accusation to an immigration judge much later, and that proof somehow backfills the evidence the officer lacked at the border. Thomas would not even say that border officers bear any burden of proof before consigning LPRs to this legal purgatory, and he left open the possibility that they have no such burden at all. That would mean that an officer could simply invent an accusation of criminality, leaving the green-card holder trapped in a bureaucratic twilight zone for years before they have a chance to rebut the accusation at a hearing.

And that twilight zone has serious costs—a fact that Thomas ignores but Jackson rightly highlights. Without a permanent green card, it is harder for legal permanent residents “to work, open bank accounts, secure housing, obtain health insurance, and enroll in school,” Jackson noted. It is also easier for the government to deport them. A typical green-card holder may not be removed unless the government proves they’re deportable. An LPR in Lau’s situation, by contrast, bears the burden of proving in immigration court that they are entitled to remain. Moreover, a single conviction for a crime of moral turpitude can be enough to expel an LPR in Lau’s position, even when that same conviction would not be enough to deport a green-card holder who had been formally admitted. They may even be detained for months or years while their case grinds through immigration court.

Thomas’ opinion blesses one part of the Trump administration’s multipronged attack against green-card holders, validating its campaign to revoke these individuals’ rights on a whim. This is the same administration that is making it as difficult as possible for immigrants around the world to get approval for green cards and arbitrarily detaining many who already have them. Worse, the administration has argued that Immigration and Customs Enforcement may detain green-card holders with certain criminal convictions for months or years without any opportunity to seek release on bond while the government pursues their deportation in immigration court. As Slate’s Alexis Romero wrote last week, the Supreme Court just took up a case testing the legality of that extraordinary claim. Its decision in Lau does not inspire confidence that the conservative supermajority will afford LPRs their due process rights.

Indeed, what’s ultimately so disturbing about Tuesday’s decision isn’t just the holding. (The majority did not decide whether Lau’s offense even constitutes a crime of moral turpitude, leaving that to the lower court, so he may still evade deportation.) What’s genuinely alarming is the broader indifference, if not hostility, that it reflects toward green-card holders. These individuals hold a special protected status just one rung below citizenship, having already proved their right to live and work in the U.S. Yet the supermajority, like the Trump administration, treated their freedoms as entirely conditional. There is no obvious reason why the court should adopt such an absurdly cramped reading of federal law other than a skepticism that lawful permanent residents really deserve to live in this country. In Jackson’s words, “Congress could not have meant for the guarantees it was affording to be so cavalierly swept aside.” For this court, it seems, a green card is not proof that someone belongs here, but a mere privilege the government may withdraw at will.

Read more Trump’s Latest Court Loss Is a Doozy