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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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The vote was 7-to-2, with only Justice Ginsburg and Justice Sotomayor dissenting.

Surprise, surprise …. Ruth looks like her Depends needs changing.

    notamemberofanyorganizedpolicital in reply to walls. | September 11, 2019 at 7:45 pm

    Ruth’s was a call in vote from the hottest place on…er…….

    fscarn in reply to walls. | September 11, 2019 at 8:44 pm

    “‘Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution,’ Sotomayor and Ginsburg wrote [in dissent].”

    THAT’S the intent, sweeties.

      Barry in reply to fscarn. | September 11, 2019 at 11:41 pm



      artichoke in reply to fscarn. | September 12, 2019 at 12:25 am

      They already had shelter from persecution, from the moment they crossed the Mexican southern border, maybe even the Guatemalan southern border!

      They didn’t have an array of free social programs for themselves and the anchor children they planned to create, but oh well.

        jr.ewing.78 in reply to artichoke. | September 12, 2019 at 11:32 am

        This reminds me of the story earlier this week about “rioting Africans” stuck in Mexico. They say the Mexicans won’t let them leave. The Mexicans say, “You can totally leave. You’re free to go back the way you came – towards Guatemala.” and the Africans are quoted saying imany different ways, “But the welfare is in America! Let us go that way instead!”

Judge Tigar …. stuff it! This ruling should be retroactive to 50 years ago.

And the penalty for Judge Tigar will be — of course — nothing.

Give the America-haters credit: they never quit. Attack, attack, attack, in every possible way from every possible direction. As long as it doesn’t cost them anything, they’ll keep doing it.

The Supreme Court failed to respect the lower court’s judgement? That’s bass ackwards. The lower court failed to respect the Constitution and got their hands

And it wasn’t actually a lower court. It was a single judge engaging in judicial tyranny.

    Valerie in reply to gospace. | September 12, 2019 at 5:24 pm

    His opinion got quashed in two days, by the Supreme Court, 7-2, without even an opportunity for his 9th Circuit to rule.

    That’s humiliation, in judge dialect.

JusticeDelivered | September 11, 2019 at 7:53 pm

Next, how do we get rid of existing illegals? How about a bounty, dead or alive? No doubt, such a bounty would encourage illegals to promptly leave.

    notamemberofanyorganizedpolicital in reply to JusticeDelivered. | September 11, 2019 at 7:54 pm


    Just tell them Soros is in Mexico driving his hoard of gold around in a limo……

    buckeyeminuteman in reply to JusticeDelivered. | September 12, 2019 at 1:46 pm

    That’s sinister. I like it. Until there is a negative consequence for coming and staying here, illegals will continue to come. I’m not saying we turn into the Hutus and the Tutsis, but it has to become non-attractive.

So…how long before a Federal judge (Tigar or someone else) does the exact same thing again?

This is why no Republican senator should vote for a Democrat judicial nominee. Ever.

How did I know the wise Latina would get this one wrong. There should be an trigger to get activist judges thrown off the bench. Let’s say if they are overturned 30% of the time, or hit 5 overturns in a career. What kind of job is it where you get to fail all the time but keep on getting to do it? No consequences means we will keep dealing with judicial activism, which is nothing more than legalized tyranny.

    artichoke in reply to CKYoung. | September 12, 2019 at 12:15 am

    Wise Latina doesn’t understand too much of the legal niceties, but she knows what the liberal side is, and sometimes she can get all righteous-sounding about it.

    Paul In Sweden in reply to CKYoung. | September 12, 2019 at 1:00 am

    In the earlier Trump administration he was castigated for pointing out that one of the judges in a Trump case in the lower courts was affiliated with LA RAZA and might have a bias on the case. The judge was in addition to being a member of that Supremacist organization actively working with another group to bring illegals into the country and working to keep them in the USA.

    One law for all?

    snopercod in reply to CKYoung. | September 12, 2019 at 7:33 am

    There is a trigger. It’s in Article III, Section 1 of the U.S. Constitution:

    The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

    Of course, the democrat-contolled House would never Impeach Sotomayor.

    buckeyeminuteman in reply to CKYoung. | September 12, 2019 at 1:47 pm

    Government job…

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.

I don’t see how that’s a new rule. It’s how asylum is supposed to work.


    The international agreements (I don’t know if they hold the force of treaties or not) say that you have to apply in the first “safe” country you get to. You could argue anyone getting to Guatemala could move right along, but getting to Mexico should qualify.

    (This is on top of things like they don’t qualify for asylum, anyway.)

The Supreme Court exhibiting common sense and upholding enforcement of the laws passed by Congress? Refreshing!

Does Ginsburg even really vote anymore? Has anyone actually seen her “write” any opinion recently?

Sounds like Sotomayor wrote an opinion and Ginsburg’s puppeteers had her sign off.

The District Judge Jon Tigar apple did not fall far from the family tree. His father, Michael Tigar was and is a brilliant lawyer. But Mike Tigar is a man of the extreme left. As an undergraduate at UC Berkeley in the very late 50s and earlyi 60s, Mike Tigar organized a student political organization Slate. Slate and its members had a lot to do with the Free Speech and Filthy Speech movements.

Tigar went to law school at Boalt Hall (the UC Berkeley law school). He was number one in his law school class and Editor of the Law Review graduating in 1966. Normally that would get Mike Tigar a Supreme Court clerkship. (I was a student at Boalt a couple of years behind Tigar). I’ve forgotten whether Tigar got that Supreme Court clerkship–his politics were well known and he was maybe too far left for most of the then Justices. He litigated for a big time Washington D.C. firm. He created and edited the Selective Service Law Reporter in the late 60s and early 70s—that was the “Bible” for lawyers trying to prevent their clients from being drafted. He’s been a law professor at several schools; he’s litigated a lot of cases for lefties. You can bet that his son Jon Tigar got his political views from Daddy.

    When the libs are obviously caught with their hands in the cookie jar as Tigar was here, it’s only because their cover has been blown and they can’t operate under five layers of obfuscation as they’re used to doing.

    They do the same things they always did. They’ve just been flushed out into the open.

It’s not often that the four libs on the SC divide but Breyer and Kagan are just a hair less knee-jerk than the Wise Latina and Ruth Buzzi.

    artichoke in reply to FOAF. | September 12, 2019 at 12:19 am

    I think there may be a bit of consensus on SCOTUS that the President has to be allowed to control the border and immigration issues. Basic separation of powers, regardless of details of legal text and precedent. It’s the President’s job and he must be allowed to do it.

The anti-Trump factions only need to find one district judge who agrees with them to get a nationwide injunction. That’s nonsense.

It seems like Trump could ignore the injunction everywhere except that judge’s district. If the 9th circuit court agrees with the injunction, then it should apply only in the 9th circuit. It should take an injunction from SCOTUS to apply nationwide.

    artichoke in reply to OldProf2. | September 12, 2019 at 12:22 am

    There’s a precedent (SCOTUS level probably) allowing the nationwide injunction by any district judge. It’s a crazy idea, but it’s the law. SCOTUS could change it.

    But it’s better for them to keep slapping down miscreant judges like Tigar, while keeping the power in reserve. Sometimes it may be useful. Otherwise we’d still have DAPA, where all the parents of those poor innocent alien children would also be given legal status.

      dystopia in reply to artichoke. | September 12, 2019 at 8:45 am

      There is also precedent for a President not following District Court orders. For example, President Obama failed to follow District Court orders on Yuka Mountain.

      Allowing a single District Court judge to issue a nationwide injunction creates a Judicial Oligarchy. It promotes forum shopping, judge shopping and Plaintiff substitution. Numerous Plaintiffs can file in the hope of just one “yes”.

        artichoke in reply to dystopia. | September 12, 2019 at 2:08 pm

        Oh yes I agree with all that. But the judiciary assumed excessive power in Marbury v Madison and for over 200 years has never looked back.

        “Judicial review” is nowhere to be found in the Constitution. To my layman’s reading of the Constitution’s text, “saying what the law is” is the job of Congress, not the courts.

    Paul In Sweden in reply to OldProf2. | September 12, 2019 at 1:29 am

    I think Trump needs to wait for his second term before he takes that much inspiration from that portrait of Andrew Jackson that he has hanging.

I think Thomas earler where he railed against local judges doing nationwide injunctions had an effect.

This was a clear slap down maybe to avoid the Court having to rule that some local federal court could NOT ever rule beyond their jurisdiction, including the cirucits.

I don’t think they want to rule on such (cowards!), so this is enough of a discoragement to limit extensive rulings.

But the Judges doing the silly “the whole us MUST…” are leftists who can’t control themselves.

Once again, all they had to do was not be crazy and they would have at least had the rule stopped in the 9th, but nooooooooo, the crazy must thrive!

I’m a practical sort of guy. As much as I feel for all the people lost on 9/11, they’re gone. I’m more interested in dealing with the problem of Islamic terrorism and it seems to me that America has mostly done the wrong things. Bin Laden’s stated goal was to end freedom in America and destroy us financially, and nobody can argue that those goals aren’t well on the way to being met. From the late Jerry Pournelle:

I watched the 15th Anniversary of the attack on the United States with some misgivings. I recall when it first happened, no one thought that we’d go so far as to create new bureaucracies, spend hundreds of billions of dollars, get into land wars in Asia, quadruple the national debt, while failing to rebuild the twin towers taller and stronger and better; but we have managed to do so, and more. If the purpose was to bring financial and bureaucratic disaster to the United States while creating chaos in the Near, Middle and Far East, bin Laden more than accomplished his goal. Among other achievements, he caused the creation of TSA; and the TSA with its security theater drama is a permanent fixture; thanks to bin Laden. That bureau alone costs $7 billion a year.

    artichoke in reply to snopercod. | September 12, 2019 at 2:14 pm

    Recall that ObL had been treated at a Navy hospital not that long before 9/11 .

    But I have to say, I smelled a rat on the very day, and with every spooky sounding speech by W and the fake-patriotism he demanded for years after, that stink only grew stronger. If he’d wanted to stop it, he would have scrambled the Air Force rather than grounding them on the most important day in their history.

WOOHOO! Justice at last from the SCOTUS!

Finally, one thread of sanity.

Thank President Trump for this ruling. It was he who appointed two Constitutionally oriented judges to the SC and will, if Ruthie ever croaks, place a third on there. He’s doing his best to re-orient the lower courts as well; he’s even put a dent in the 9th Circus.

Why it is these social engineers on the bench never heard of the 1952 Immigration and nationally act? It gives Trump EXACTLY the authority to do what he did.

    As does the 1978 revision. Further, Sotomayor sounded a little nuts. The fact is that traditionally asylum was initiated at consulates and embassies, and points of entry. Not in Detroit a year after being in the country because you SNUCK into the country and did not mention your asylum worthy plight until you were picked up because you were on welfare and using an illegal SSN and working for cash at the same time.

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.

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