Sam Alito’s Textualism Has Entered the Realm of the Absurd

Sometimes the most consequential shifts in legal power do not arrive through sweeping constitutional pronouncements. Sometimes they arrive disguised as an argument over a single preposition. To explain why the government prevailed in Thursday’s asylum case, Mullin v. Al Otro Lado, Justice Samuel Alito, writing for the court’s majority, reached for a football field, a front porch, and a mailbox.

A running back tackled at the 1-yard line has not reached the end zone. A guest standing outside the front door has not arrived in the house. A letter still in the mail carrier’s hand has not arrived in the mailbox. Likewise, Alito writes, an asylum-seeker standing in Mexico has not “arrived in the United States,” even if an American border officer is the only thing preventing that final step. The ordinary meaning of the statute, the court concludes, is straightforward: Someone has not arrived until he is inside.

As exercises in ordinary language, those analogies are difficult to quarrel with. But this case should be understood as something more than a dispute over grammar. For its part, the majority insists it is answering a narrow question of statutory interpretation. The Immigration and Nationality Act, it explains, requires immigration officials to inspect a noncitizen who “arrives in the United States” and permits that person to apply for asylum. The question before the court was whether someone standing at an official port of entry on the Mexican side of the border has already “arrived,” or whether arrival occurs only after physically crossing onto American soil. The court chose the latter. Under that reading, until an asylum-seeker takes that final step, the government’s statutory obligation to inspect the person and begin the asylum process never arises.

Justice Alito’s opinion is a classic exercise in textualism. He works methodically through dictionary definitions, neighboring provisions of the Immigration and Nationality Act, Congress’ decision in 1996 to replace language referring to people “at a land border or port of entry” with the phrase “arrives in the United States,” and the familiar presumption that statutes generally do not operate outside the nation’s borders. The majority acknowledges that its reading creates some overlap in the statute but concludes that a modest amount of redundancy is preferable to giving words an unnatural meaning. Reasonable lawyers can admire that analysis without agreeing with where it ends.

The harder question is whether ordinary meaning, standing alone, answers the question Congress actually asked. Congress was not writing a dictionary. It was designing a legal process. Textualism requires courts to read words in their statutory setting, not as isolated entries in a lexicon. In ordinary conversation, someone standing outside your front door has not “arrived in” your house. But rather than regulating dinner guests, Congress was specifying when mandatory duties attach to government officials stationed at ports of entry. One could therefore agree with Alito that a person has not literally “arrived in” the United States until crossing the border while still concluding that Congress used that phrase to identify the point at which an asylum-seeker has presented for inspection and the government’s statutory obligations begin. The dispute was never simply what “arrives in” means in the abstract but what Congress intended that phrase to accomplish within a statutory scheme governing inspection, admission, and asylum. Accepting the majority’s linguistic premise did not require accepting its legal conclusion.

Justice Sonia Sotomayor’s dissent points toward precisely that alternative reading. Rather than treating “arrives in the United States” as a freestanding phrase, she reads it alongside the statute’s repeated mandatory commands. Congress provided that immigration officers “shall” inspect arriving noncitizens and “shall” refer those expressing a fear of persecution into the asylum process. On that view, the statute’s design reveals Congress’ objective every bit as clearly as any dictionary definition. Congress did not establish a system in which executive officials could decide, through physical positioning alone, whether those mandatory duties would ever arise. It established a process designed to ensure that people presenting themselves for admission at designated ports of entry would first be inspected before the government decided whether they could enter, should be removed, or allowed to pursue asylum. That reading is no less textualist. It simply gives equal weight to the statute’s structure, its mandatory language, and the function Congress assigned to the phrase “arrives in the United States.” The disagreement, then, is not between textualism and purposivism. It is between two competing textualist accounts of how statutory language operates within a comprehensive legal framework.

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Imagine Congress required every patient who reached an emergency room entrance to be evaluated by a physician. Imagine the hospital responded by stationing security guards outside the sliding doors to prevent patients from entering. It would certainly be true that those patients never made it inside the emergency room. But few would think that observation resolved the legal question. The real issue would be whether the hospital could evade its statutory duties simply by preventing the very event that triggered them. That is, in substance, what the court approved here.

The court’s analogies also obscure what is ultimately at stake. The people waiting outside our ports of entry are not footballs stopped at the 1-yard line, letters suspended in a mail carrier’s hand, or dinner guests lingering on a porch. They are human beings who have traveled extraordinary distances claiming that returning home could mean imprisonment, torture, or death. While Congress did not guarantee that every one of those claims would prevail, it guaranteed a legal process for deciding them. Today’s decision permits the executive, in at least some circumstances, to prevent that process from ever beginning by controlling the very event that triggers it. The court repeatedly insists that it expresses no view on the wisdom of that policy. But for the asylum-seeker turned away before the law ever reaches her, the distinction between policy and statutory interpretation is largely academic. The result is the same. The legal process Congress created never begins, not because the claim has been heard and rejected, but because the government has prevented the statutory obligation to hear it from arising in the first place.

Before Mullin, one plausible reading of the Immigration and Nationality Act required immigration officials to inspect asylum-seekers once they presented themselves at a designated port of entry seeking admission. After Mullin, whether those mandatory obligations arise depends first on whether the executive allows the asylum-seeker to cross the border. The court insists it is interpreting language. The consequence is to confer substantially greater discretion on the executive.

Congress enacted mandatory inspection procedures because it sought to constrain executive discretion at one of the most sensitive moments in immigration law, required immigration officers to inspect those seeking admission, prescribed what must happen if a person expressed a fear of persecution, and established a sequence of legal obligations rather than leaving those decisions entirely to executive judgment.

Because Mullin is an exercise in statutory interpretation, Congress remains free to reject the court’s reading and rewrite the statute if it believes the court misunderstood what it enacted. Indeed, the majority’s opinion effectively tells Congress how to overrule today’s decision. It could restore the broader language Congress replaced in 1996 or amend the Immigration and Nationality Act to provide expressly that any noncitizen who presents at a designated port of entry seeking admission, or who is prevented by United States officials from crossing solely for inspection and processing, is deemed to have satisfied the statutory trigger for inspection and asylum processing. Congress could further provide that executive officials may not avoid those mandatory duties by physically preventing an asylum-seeker from taking the final step across the border. Such amendments would not expand asylum eligibility or guarantee admission into the country. They would simply make unmistakably clear that the executive cannot determine whether Congress’ statutory commands ever become operative by controlling the very event that activates them. Whether it chooses to do so will reveal as much about our immigration politics as this opinion reveals about our jurisprudence.

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