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    In Rebuke of Lower Court, SCOTUS Allows Trump Administration to Enforce Asylum Rule

    In Rebuke of Lower Court, SCOTUS Allows Trump Administration to Enforce Asylum Rule

    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.

    President Trump’s administration won a significant victory at the Supreme Court on Wednesday afternoon.

    The NYT’s Adam Liptak reports:

    The Supreme Court on Wednesday allowed the Trump administration to bar many Central American migrants from seeking asylum in the United States. The court said the administration may enforce new rules that generally forbid asylum applications from people who had traveled through another country on their way to the United States without being denied asylum in that country.

    Only Justice Ginsburg and Justice Sotomayor dissented from the ruling, which permits the government to enforce the policy while the litigation proceeds.

    The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

    In a short opinion joined by Justice Ginsburg, Justice Sotomayor said that “a stay pending appeal is ‘extraordinary’ relief” and that “the lower courts’ decisions warrant respect.” The dissent echoed a concern that has been raised by several liberal legal commentators: that the Trump administration is asking for too much and that SCOTUS is being too accommodating. “Historically, the Government has [requested emergency relief] rarely; now it does so reflexively,” Justice Sotomayor noted. Indeed. 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?

    This case, East Bay Sanctuary Covenant v. Barr, followed the familiar pattern. In July, the Justice Department and Homeland Security issued a new rule denying 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 granted a nationwide injunction against the rule. The government appealed.

    A few weeks later, in a partial victory for the government, the Ninth Circuit held the record did not support the award of a nationwide injunction. It ordered that the rule be blocked only within the Ninth Circuit unless a more developed record showed that broader relief was necessary. Judge Tigar then ordered a bit more paperwork, held another hearing, and quickly restored the nationwide scope of the injunction.

    The Supreme Court’s decision allows the rule to go into effect entirely. In other words, the plaintiffs are probably worse off then they would have been had they accepted the Ninth Circuit’s geographic compromise. They paid for being greedy.

    The President quickly tweeted about the ruling:

    In fact, SCOTUS didn’t even wait for the Ninth Circuit to decide whether the expanded injunction should stand—it just went ahead and blocked it. So whatever one thinks of the rule, it is hard to interpret the Supreme Court’s action as anything but a rebuke of both Judge Tigar and the plaintiffs, who are represented by the ACLU. That’s good news for the equilibrium of our politics. The bad news, though, is that they aren’t really deterred by losing, so it’s unlikely the ruling will discourage the ACLU from seeking nationwide injunctions or discourage courts from handing them out like Halloween candy.


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    This is not over. The Supreme Court allowed enforcement to proceed while the issues are being litigated. One set of issues revolves around the question of whether Mexico qualifies as a safe country, and it is not clear from what the Supreme Court has done so far what the criteria are for that, who has the burden of proof, whether the assertion of such by the administration is entitled to deference and if so how much. The answer to the question is not trivial. A second set of issues, procedural in nature, revolves around whether the executive order satisfied the requirements of the Administrative Procedure Act which was the problem, ultimately, with the census citizenship question and DACA reversal. All we know so far is that the Supreme Court is not so convinced that the plaintiffs will win and not made a strong in of showing that they will win and will suffer irreparable harm in the interim to block enforcement in the interim.

      TempeJeff in reply to RRRR. | September 13, 2019 at 7:50 pm

      I would love a ruling that Mexico does NOT qualify as a ‘Safe Country ‘. That would give more impetus to building a wall and more strict enforcement at Border Crossings. After all, can’t be too careful with an ‘unsafe’ Country next door.

    MannSplainer | September 14, 2019 at 5:18 am

    Don’t worry. All we have to do is raise everyone’s taxes. Problem solved.

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