By David J. Butler
The U.S. Supreme Court’s two immigration decisions last week mark another significant chapter in America’s ongoing debate over immigration, borders and the rule of law. In one case, the court held that the Trump administration may terminate Temporary Protected Status (TPS) for hundreds of thousands of Haitians and Syrians. In the other, it ruled that migrants seeking asylum have no statutory right to apply until they have physically entered the United States. Together, the decisions strengthen the administration’s immigration agenda while raising profound legal and moral questions.
For many Americans, the instinctive reaction will be either celebration or outrage. But there is a more difficult question worth asking, particularly from a Jewish perspective: What happens when the law points in one direction while mercy points in another?
Jewish tradition has long wrestled with the relationship between justice and mercy. The rabbis taught that neither can stand alone. A society governed only by strict justice would ultimately become unlivable, while one governed only by compassion would descend into disorder. Law without mercy becomes indifferent to human suffering; mercy without law eventually undermines the very order that allows compassion to flourish. The enduring challenge is not choosing one over the other but knowing when and how each should temper the other.
That is precisely what makes these decisions so difficult.
The majority opinions, authored by Justice Samuel Alito, were exercises in statutory interpretation, not sweeping moral pronouncements. In the TPS case, the court concluded that Congress had largely insulated the executive branch’s decision from judicial review. In the asylum case, it held that the statutory right to seek asylum begins only after a migrant has entered the United States. Whether either policy is wise or compassionate, the majority concluded, is a question for Congress and the executive branch — not for judges.
Reasonable lawyers can disagree with those interpretations. The dissenters certainly did.
Justice Sonia Sotomayor reached back to one of the darkest chapters in Jewish history, recalling the voyage of the MS St. Louis, whose more than 900 Jewish refugees were turned away from American shores in 1939. Many later perished in the Holocaust. She warned that refusing asylum seekers even the opportunity to present their claims risks repeating a tragic pattern in which desperate people are denied refuge because legal formalities eclipse humanitarian concerns.
Jewish readers cannot encounter the MS St. Louis without emotion. Our collective memory simply does not permit it. Yet memory, however powerful, cannot substitute for constitutional analysis.
That is where much of today’s debate has become unproductive. Critics portray the court as embracing cruelty. Supporters celebrate an unqualified triumph for the rule of law. Both oversimplify what actually occurred.
The Constitution does not authorize judges to write immigration policy. Congress does.
If Congress granted the executive branch broad discretion over Temporary Protected Status, judges are not free to rewrite that statute because they dislike the consequences. If Congress believes asylum protections should attach before an individual physically crosses the border, it remains entirely free to amend the law. Courts exist to interpret legislation, not to improve it.
Recognizing that constitutional reality, however, does not end the moral conversation. It begins it.
Jewish ethics has always distinguished between what the law permits and what moral responsibility encourages. The Talmud praises those who act lifnim mishurat hadin — beyond the strict letter of the law. Legal systems establish minimum obligations. Great societies ask whether they should aspire to something higher.
America has often done exactly that. Temporary Protected Status was itself an act of legislative compassion, recognizing that people should not be returned to countries devastated by war, natural disaster or political collapse. Likewise, America’s asylum laws reflected painful lessons learned from the 20th century, including the world’s failure to provide refuge to those fleeing Nazi persecution. Those policies were not constitutional requirements. They were moral choices enacted through democratic government.
The court did not reject those ideals. It simply held that the authority to define, revise or withdraw them belongs to the elected branches.
That distinction matters.
When Congress fails to confront difficult immigration questions, Americans increasingly look to the Supreme Court to supply the answers. But constitutional government depends upon each branch respecting the limits of its authority. Courts safeguard the law. They do not substitute their policy preferences for those enacted by the people’s representatives.
The proper response, therefore, is neither to condemn the court for faithfully interpreting the law nor to conclude that compassion has become irrelevant. It is to demand that Congress do its job. If Temporary Protected Status should be more durable, Congress should make it so. If asylum laws should better reflect today’s humanitarian realities while preserving secure borders, Congress should amend them openly and honestly.
The Supreme Court has answered what the law requires. It cannot answer what the law ought to be. That responsibility belongs to Congress. And whether our laws ultimately reflect both justice and mercy — that responsibility belongs to all of us.
David J. Butler is an attorney. He is president of Dvash Consulting, LLC and a member of the ownership group of Mid-Atlantic Media, which owns and publishes Washington Jewish Week.
