Supreme Court Rebukes Lower Court, Allows Trump Administration to Enforce Asylum Rule
Posted by Jared Samilow Wednesday, September 11, 2019 at 7:14pm
https://legalinsurrection.com/2019/...istration-to-enforce-asylum-rule/#more-294837
The rule denies asylum to most migrants who did not apply for asylum in a third country they transited through on their way to the United States.
The NYT’s Adam Liptak reports:
Only Justice Ginsburg and Justice Sotomayor dissented from the Court’s order, which is not formally on the merits:
The procedural history of this case was usual and unusual. First, the usual. In July, the Justice Department and Homeland Security issued a new rule. It denies asylum to most migrants who did not apply for asylum in a third country they transited through on their way to the United States. For example, the rule denies U.S. asylum to someone from Guatemala who crossed the U.S.-Mexico border without having applied for asylum in Mexico. In a lawsuit brought by an asylum organization, Judge Jon Tigar in San Francisco on July 24 granted a nationwide injunction against the rule.
Now the unusual: a few weeks later, the Ninth Circuit found the record did not support the award of a nationwide injunction. It ordered the rule be blocked only within the Ninth Circuit unless a more developed record showed that broader relief was necessary. Then, in the days following the Ninth Circuit’s ruling, Judge Tigar ordered a bit more paperwork, held another hearing, and quickly reinstated the nationwide scope of the injunction.
The Supreme Court’s decision on Wednesday allows the rule to go into effect entirely. That is, the plaintiffs are probably worse off then they would have been had they accepted the Ninth Circuit’s geographic compromise. They paid the price for being greedy.
The President quickly tweeted about the ruling:
Whatever one thinks of the rule, there is no way to interpret the Supreme Court’s action as anything but a rebuke of both Judge Tigar and the litigants. It is improbable that Justice Breyer and Justice Kagan agree with the government on the merits of this case. But a possible, if sanguine, explanation of their silence is that they too believe that Judge Tigar and the plaintiffs went too far and wanted to signal that this sentiment is a 5-to-4 thing.
Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that “a stay pending appeal is ‘extraordinary’ relief” and that “the lower courts’ decisions warrant respect.”
Justice Sotomayor’s dissent expresses a concern that has been raised by many liberal legal commentators: that the Trump administration is asking too much and the Supreme Court is being too accommodating. It is obviously not ideal for the Supreme Court to make decisions of national consequence in an emergency posture, without full briefing. But who is to blame? The Trump administration for asking permission to enforce a policy here and there, or the lower courts for vetoing literally everything?
The post will be updated with more analysis.
Posted by Jared Samilow Wednesday, September 11, 2019 at 7:14pm
https://legalinsurrection.com/2019/...istration-to-enforce-asylum-rule/#more-294837
The rule denies asylum to most migrants who did not apply for asylum in a third country they transited through on their way to the United States.
The NYT’s Adam Liptak reports:
Only Justice Ginsburg and Justice Sotomayor dissented from the Court’s order, which is not formally on the merits:
The procedural history of this case was usual and unusual. First, the usual. In July, the Justice Department and Homeland Security issued a new rule. It denies asylum to most migrants who did not apply for asylum in a third country they transited through on their way to the United States. For example, the rule denies U.S. asylum to someone from Guatemala who crossed the U.S.-Mexico border without having applied for asylum in Mexico. In a lawsuit brought by an asylum organization, Judge Jon Tigar in San Francisco on July 24 granted a nationwide injunction against the rule.
Now the unusual: a few weeks later, the Ninth Circuit found the record did not support the award of a nationwide injunction. It ordered the rule be blocked only within the Ninth Circuit unless a more developed record showed that broader relief was necessary. Then, in the days following the Ninth Circuit’s ruling, Judge Tigar ordered a bit more paperwork, held another hearing, and quickly reinstated the nationwide scope of the injunction.
The Supreme Court’s decision on Wednesday allows the rule to go into effect entirely. That is, the plaintiffs are probably worse off then they would have been had they accepted the Ninth Circuit’s geographic compromise. They paid the price for being greedy.
The President quickly tweeted about the ruling:
Whatever one thinks of the rule, there is no way to interpret the Supreme Court’s action as anything but a rebuke of both Judge Tigar and the litigants. It is improbable that Justice Breyer and Justice Kagan agree with the government on the merits of this case. But a possible, if sanguine, explanation of their silence is that they too believe that Judge Tigar and the plaintiffs went too far and wanted to signal that this sentiment is a 5-to-4 thing.
Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that “a stay pending appeal is ‘extraordinary’ relief” and that “the lower courts’ decisions warrant respect.”
Justice Sotomayor’s dissent expresses a concern that has been raised by many liberal legal commentators: that the Trump administration is asking too much and the Supreme Court is being too accommodating. It is obviously not ideal for the Supreme Court to make decisions of national consequence in an emergency posture, without full briefing. But who is to blame? The Trump administration for asking permission to enforce a policy here and there, or the lower courts for vetoing literally everything?
The post will be updated with more analysis.