A Constitutional Showdown Analysis: Jeff Bayard’s Third Way
On November 17, 2025, the Supreme Court agreed to hear a case that asks a deceptively simple question: If you’re standing in Mexico at a U.S. port of entry, have you “arrived in the United States”? The answer to this question—which the Ninth Circuit answered with a resounding yes—could fundamentally reshape American sovereignty and our entire asylum system. But there’s a Third Way beyond the failed extremes dominating this debate.
The case is Noem v. Al Otro Lado, and it turns on three words in federal immigration law: “arrives in the United States.” Those three words now stand at the center of a constitutional collision between border security and asylum processing, between national sovereignty and humanitarian compassion, between the plain meaning of English and judicial activism run amok.
For Christians who care about both the rule of law and compassion for the stranger, this case demands our attention—and our wisdom. Because the competing sides in this debate are both dangerously wrong, and there’s a biblical Third Way that honors both sovereignty and mercy.
What’s Actually at Stake
Beginning in 2016, U.S. Customs and Border Protection implemented a policy called “metering” at ports of entry along the southern border. The policy was straightforward: when border facilities reached capacity, officials would limit the number of asylum seekers processed each day. Those turned away would wait in Mexico until space became available.
The legal foundation seemed equally straightforward. Federal law (8 U.S.C. § 1158) states that a noncitizen may apply for asylum if they are “physically present in the United States” or “arrives in the United States.” The government’s position was simple common sense: to “arrive in” the United States, you must actually cross into the United States. Standing in Mexico doesn’t count.
Al Otro Lado, an immigrant rights organization, along with thirteen asylum seekers, sued. They argued that the metering policy violated federal law by turning people away before processing their asylum claims. The lawsuit wound its way through the courts during the Trump and Biden administrations, even as the formal metering policy was rescinded in 2021.
In October 2024, a divided Ninth Circuit panel ruled for the asylum seekers in a decision that defies ordinary English. Judge Friedland, writing for the majority, declared that “arrives in the United States” includes “those who encounter officials at the border, whichever side of the border they are standing on.” Read that again: whichever side they are standing on.
Mexico, in the Ninth Circuit’s view, is functionally part of the United States for asylum purposes.
Plain Text vs. Judicial Creativity
Judge Bress, joined by ten other Ninth Circuit judges in dissent, stated the obvious: “In ordinary English, a person ‘arrives in’ a country only when he comes within its borders.” He noted that “aliens in Mexico are not ‘in’ the United States.” This isn’t legal complexity—it’s basic grammar.
The Trump administration’s petition to the Supreme Court pulls no punches. The Ninth Circuit’s decision “defies plain text” and would cause “untold interference with the Executive Branch’s ability to manage the southern border.” If standing in Mexico counts as arriving in the United States, then our border effectively extends into Mexican territory for legal purposes. We’ve lost sovereignty without firing a shot.
The challengers, predictably, argue that the issue is now moot since the metering policy has been formally rescinded. But as Justice Kavanaugh noted in a related case, “levels of migration ebb and flow, often in unpredictable ways.” The legal question remains vital because future administrations will face future surges. The Supreme Court is right to resolve this now.
What the Bible Says About Borders
Here’s where many Christians stumble. We’re told that compassion requires open borders, that loving the stranger means erasing boundaries, that Jesus would welcome everyone regardless of capacity or process. This is sentiment masquerading as theology.
Scripture actually presents a more nuanced—and more humane—vision. Consider the biblical witness on national boundaries:
“When the Most High gave to the nations their inheritance, when he divided mankind, he fixed the borders of the peoples…” (Deuteronomy 32:8)
“And he made from one man every nation of mankind to live on all the face of the earth, having determined allotted periods and the boundaries of their dwelling place…” (Acts 17:26)
God establishes nations with boundaries. This isn’t tribalism or xenophobia—it’s divine design. Nehemiah rebuilt Jerusalem’s walls and posted guards (Nehemiah 2-4). The walls weren’t about hating outsiders; they were about protecting inhabitants. Security matters to God.
But Scripture also commands extraordinary compassion for the sojourner:
- “You shall not wrong a sojourner or oppress him, for you were sojourners in the land of Egypt.” (Exodus 22:21)
- “Love the sojourner, therefore, for you were sojourners in the land of Egypt.” (Deuteronomy 10:19)
- “You shall have the same rule for the sojourner and for the native, for I am the Lord your God.” (Leviticus 24:22)
These commands aren’t suggestions. God takes the treatment of vulnerable foreigners with deadly seriousness. Any Christian approach to immigration that doesn’t center compassion for genuine refugees misses the heart of God.
The Cities of Refuge Model
How do we reconcile these principles? The answer lies in an often-overlooked Old Testament institution: the cities of refuge (Numbers 35, Joshua 20).
God commanded Israel to establish six cities where someone who accidentally caused a death could flee for protection. These cities embody both mercy and order:
- They existed—refuge was real and available
- They had clear geographic boundaries and specific entry points
- They required a process—the elders would hear the case (Joshua 20:4)
- They protected legitimate refugees while distinguishing them from criminals
- They maintained order within a framework of compassion
Notice what the cities of refuge didn’t do: they didn’t eliminate boundaries, they didn’t process claims of people who hadn’t entered, and they didn’t allow unlimited numbers to overwhelm capacity. Compassion operated within structure. Mercy worked through process.
The Third Way: Sovereignty Plus Mercy
The dominant positions on asylum are both unbiblical. On one extreme, open borders advocates insist that everyone who presents at the border must be immediately processed and admitted regardless of capacity, resources, or security concerns. This position confuses compassion with chaos.
On the other extreme, hardline restrictionists want to turn away all asylum seekers or make the process so onerous that no genuine refugee can navigate it. This position mistakes security for cruelty.
The biblical Third Way rejects both extremes and embraces a framework that honors both sovereignty and mercy:
1. Words Mean What They Mean
“Arrives in the United States” means exactly what everyone understands it to mean: you’ve crossed into U.S. territory. Standing in Mexico is not arriving in America. This isn’t anti-immigrant; it’s pro-coherence. If we can’t maintain basic definitions, we can’t maintain law itself.
The Ninth Circuit’s interpretation doesn’t expand compassion—it erases sovereignty. It effectively moves the U.S. border into Mexican territory, making our asylum obligations limitless and our border meaningless. No sovereign nation can function this way.
2. Capacity Limits Are Legitimate and Compassionate
Border facilities have finite resources: officers, translators, beds, food, medical care. When overwhelmed, the entire system breaks down. Processing slows. Conditions deteriorate. Genuine refugees wait longer. Criminal enterprises exploit the chaos.
Metering—managing the flow of asylum claims based on actual capacity—is not cruel. It’s realistic. It’s the difference between a functioning asylum system and a humanitarian disaster. The cities of refuge could hold X number of people, not infinite people. Limits aren’t hateful; they’re necessary for the system to work at all.
3. Process Protects Everyone
An orderly asylum process protects genuine refugees by preventing the system from being overwhelmed by those with weaker claims. It protects American communities by ensuring proper screening. It protects vulnerable migrants from cartels who exploit chaos at the border. It protects the integrity of the law itself.
The alternative—processing everyone instantly without regard to capacity—doesn’t serve refugees. It creates massive backlogs, years-long wait times, and dangerous conditions in overcrowded facilities. The most compassionate system is one that functions effectively.
4. Once Inside, Full Due Process
Here’s the crucial distinction: once an asylum seeker has properly entered the United States—even if just into the port of entry building—they must receive full due process. Their claim must be heard fairly. They must be treated with dignity. The law must apply equally to citizen and sojourner, as Leviticus commands.
Managing the flow of entries is fundamentally different from denying rights to those who have entered. The first is border management; the second is injustice. We can and must do the first while absolutely refusing the second.
5. Compassion Requires Order
This is the paradox that confuses many Christians: genuine compassion requires functional systems. A chaotic border isn’t compassionate—it’s deadly. People drown in the Rio Grande. Children are trafficked. Women are assaulted. Cartels make billions. The most vulnerable suffer most when the system breaks down.
What Orderly Asylum Actually Looks Like
A biblically grounded, practically wise asylum system would include:
- Clear entry points where asylum claims can be processed
- Sufficient resources to process claims promptly and fairly
- Managed flow based on actual capacity, not arbitrary limits
- Priority for the most vulnerable (families, unaccompanied minors, those facing imminent danger)
- Safe waiting facilities for those in queue
- Proper screening to distinguish genuine refugees from economic migrants
- Expedited hearings so legitimate cases are resolved quickly
- Dignified treatment of all persons at every stage
This system honors both sovereignty and compassion. It maintains borders while protecting refugees. It manages flow while treating people with dignity. It’s neither open borders nor fortress America—it’s the biblical Third Way.
Why This Case Matters for the Future
If the Supreme Court upholds the Ninth Circuit’s decision, the implications are staggering. The United States would effectively lose control of its border for asylum purposes. Any person anywhere near a port of entry—regardless of which country they’re standing in—could claim to have “arrived” and trigger processing obligations.
During migration surges, this would create impossible situations. Ports of entry would be legally required to process asylum claims faster than their physical capacity allows. The inevitable result: either the system collapses entirely, or the government is forced into a pattern of continuous legal violations.
Border states already struggling with migration challenges would face intensified pressure. Communities would bear costs without having had any voice in the policy. Local resources would be stretched beyond breaking. And legitimate concerns about security, trafficking, and criminal exploitation would be dismissed as mere excuses.
If, on the other hand, the Court reverses the Ninth Circuit and restores common-sense interpretation, future administrations would have the flexibility to manage the border responsibly. They could implement capacity-based processing that actually serves refugees while maintaining order. They could prioritize the most vulnerable while screening out those with no legitimate claim.
The difference between these outcomes isn’t just legal—it’s the difference between a functional asylum system and permanent chaos.
Our Response: Advocacy and Action
Christians cannot sit this out. We’re called to speak truth into public debate, especially when the extremes dominate the conversation. Here’s what we must do:
Pray for Wisdom
Pray for the Supreme Court justices as they consider this case. Pray that they have wisdom to see past political pressure to the plain meaning of law and the practical consequences of their ruling. Pray for court arguments expected in early 2026 and the decision likely in June 2026.
Reject False Choices
Refuse to be bullied into choosing between heartless enforcement and lawless borders. The biblical position is neither extreme. When someone tells you that compassion requires open borders, show them Numbers 35. When someone tells you that security requires turning away all refugees, show them Exodus 22:21.
Advocate for the Third Way
Make your voice heard with elected representatives. Don’t just oppose bad policies—advocate for good ones. Push for increased capacity at ports of entry, faster processing for legitimate claims, better conditions for those waiting, and maintained borders with genuine compassion for refugees.
Support Local Ministries
While the legal and political battles rage, people are suffering now. Support Christian ministries serving migrants with practical help, legal assistance, and the gospel. Be the church to those in need regardless of their immigration status. Compassion in the courtroom doesn’t excuse indifference in our communities.
Conclusion: Sovereignty AND Mercy
Noem v. Al Otro Lado forces a question that America has been avoiding: Can we maintain meaningful borders while showing genuine compassion? The answer is yes—but only if we reject the false binary that dominates our discourse.
Sovereignty and mercy are not opposing values. They’re complementary truths. Nations have the right and duty to control their borders. Nations also have the obligation to treat refugees with dignity and process legitimate asylum claims fairly. The Supreme Court should rule that “arrives in the United States” means what it says—actual entry into U.S. territory.
But Christians must do more than wait for the Court. We must model the Third Way in how we talk about immigration, how we treat immigrants in our communities, and how we advocate for policies that honor both God’s design for nations and His heart for the stranger.
The cities of refuge point the way forward: clear boundaries, orderly process, genuine protection, and justice for all. That’s not utopian idealism—it’s biblical wisdom applied to modern challenges.
As this case moves toward oral arguments and a decision, let’s pray for wisdom, advocate for truth, and demonstrate in our own lives what it means to love both our neighbor and our nation. Because at its core, this case isn’t just about legal interpretation or border policy. It’s about whether we can maintain both the rule of law and the heart of God.
The answer is yes. But only if we have the courage to reject easy extremes and embrace the harder path of biblical wisdom.
_______________
ABOUT CONSTITUTIONAL SHOWDOWN
This series examines major legal and constitutional issues through the lens of originalist interpretation and biblical principles.
Author: Jeff Bayard
Virginia Christian Alliance | VirginiaChristianAlliance.com
CASE RESOURCES
The Third Way
