Ninth Circuit Reinstates Biden Asylum Rule Pending Appeal, Dissent Notes Similar Trump Rules Stricken By Same Judges
Dissent lambasts his colleagues inconsistency: “The Biden administration’s ‘Pathways Rule’ before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues…. My colleagues, who made all that precedent, should not be able to now just elide it. It’s hard to shake the impression that something other than the law is at work here….”
[Update – so I don’t forget – I just checked – this was our 50,000th published post at Legal Insurrection]
In late July, a district court judge in northern California issued an injunction against Joe Biden’s “Circumvention of Lawful Pathways” asylum rule. We covered the decision in Federal Judge Blocks Biden’s Asylum Rule Put in Place After Lifting Title 42.
The Ninth Circuit Court of Appeals just issued a Stay of the injunction pending an expedited appeal. Two Clinton appointees were in the majority for the 2-1 ruling:
The motion to stay the district court’s July 25, 2023, order and judgment (Docket Entry No. 8) is granted. See Nken v. Holder, 556 U.S. 418, 434 (2009) (defining standard for stay pending appeal).
We sua sponte expedite the briefing and hearing of this appeal.
The opening brief and excerpts of record are due August 24, 2023. The answering brief is due September 14, 2023. The optional reply brief is due within 7 days after service of the answering brief.
The date for argument will be set by separate order.
The most interesting part of the Stay was the Dissent by Trump appointee Lawrence VanDyke, who lambasted his colleagues for allowing a Biden immigration rule to remain in place when they did the opposite for almost identical Trump immigration rules.
The dissent is a thing of beauty – here’s an excerpt:
My colleagues in today’s majority grant a stay pending appeal of a district judge’s order vacating a recently promulgated immigration rule. Only a few years ago, these same colleagues affirmed the same district judge enjoining the Trump administration’s rule restricting asylum eligibility for immigrants who entered the United States outside a designated port of entry (the Port of Entry Rule)…..
Indeed, one or both of my colleagues in today’s majority were directly involved in eliminating at least four different Trump administration immigration rules….
It’s not an exaggeration to say that, whenever the Trump administration sought to make any meaningful adjustment to our nation’s immigration rules, the Northern District of California—and ultimately our court—systematically killed each of those changes.
The Biden administration’s “Pathways Rule” before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues. This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app. Relying on this court’s rationales in our prior decisions rejecting the Trump administration’s rules, Judge Tigar concluded that this new rule is indistinguishable from those rules in any way that matters. He’s right.
For those who value the rule of law, following precedent, and predictability, one must conclude Judge Tigar had no choice but to vacate the current administration’s Pathways Rule for the reasons that he first provided and my colleagues then established as binding precedent during the Trump administration.
I’d love to join my two colleagues in staying Judge Tigar’s ruling. I obviously agree with that result as a matter of first impression. See East Bay II, 993 F.3d at 696 (VanDyke, J., dissenting). But unlike my colleagues, I cannot so easily ignore our circuit’s binding precedent. And that is particularly true given the demanding standard the government faces in asking us for a stay. Among other hurdles the government must overcome, it must make a “strong showing” that, applying our court’s caselaw, it “is likely to succeed on the merits.” Id. at 702 (quoting Nken, 556 U.S. at 426 (emphasis added)). That simply is not possible under the sweeping rationales this court applied in our still-steaming cases terminating the Trump administration’s immigration rules.
My colleagues, who made all that precedent, should not be able to now just elide it. It’s hard to shake the impression that something other than the law is at work here….
I wish I could join the majority in granting a stay. It is the right result. But that result, right as it may be, isn’t permitted by the outcome-oriented mess we’ve made of our immigration precedent. Our own words should bind us with as much force as Odysseus’s ropes did. The rule now before the panel is not so meaningfully distinct from our past rules that it can navigate between the Scylla and Charybdis of our prior decisions striking down the Port of Entry Rule (East Bay II) and the Transit Rule (East Bay III). This latest rule is made up of materials borrowed from prior rules we already shipwrecked, and were this panel to stay true to its precedents, they would require our court to similarly tear the Pathways Rule asunder.
Today’s inconsistent ruling isn’t a win for the rule of law and principled decision-making; it is unfortunately the opposite. I must respectfully dissent.
Judge Van Dyke has a point. The (Democratic-appointed) judges in the majority don't explain at all how the Biden rule is meaningfully different from the Trump rule that they blocked in a published, precedent opinion. Presumably, that will have to come later.
— Gabriel Malor (@gabrielmalor) August 4, 2023
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Comments
The Judiciary is a shameless joke. Fully half the Obama judges can barely tell time. They are affirmative hired left wing cultists.
The problem is that the number of Affirmative dullards turned out annually has been increasing. They are for the most part not smart enough to see that flooding America with illegals will hurt blacks more than the rest of the population. Yet still they press on, anything to get more into America.
It is important that expulsion of illegals be a high priority after Dems are finally reigned in, that and bringing those SOBs to justice.
As others have said elsewhere: Show me one Leftist policy that has actually benefited Black Americans.
You can’t, because none of them do. Every Leftist policy sounds good on the surface, but in long-term practice harms Black communities by limiting opportunity or stifling growth and development.
And yet, 90-something percent of Black Americans are so convinced the Democrat Party has their backs, they won’t remotely consider voting for anyone without a ‘D’ after their name. Even fellow Blacks like Larry Elder and Thomas Sowell get short shrift because they don’t march in lock-step with Democrats.
“The forest was shrinking but the trees kept voting for the axe, for the axe was clever and convinced the trees that because his handle was made of wood he was one of them.” — Turkish proverb
I like Judge Van Dyke’s skewering of the other judges, but I am certainly glad it was just a dissent, not the decisive vote.
By my layman’s understanding, a court can reverse itself, and its precedent is binding only on courts below itself. Please correct me if this is not the rule. If it is the rule, Judge Van Dyke was engaging in rhetorical flourish by calling their own precendent binding, because on them it wasn’t.
And so I hope that having gotten that out of his system, Judge Van Dyke will see his way clear to vote to affirm the Biden rule on the appeal, even though it came from Biden and Biden’s getting a lot better treatment than Trump did from that court.
Not quite. Under the rule of stare decisis, Courts are obligated to follow their prior precedent unless they offer a reasoned decision and analysis for not doing so. This the majority failed to do.
Apparently, the big difference in the two rules is that one was written by a patriot and the other by a pedophile. They favor the pedophile
“It’s hard to shake the impression that something other than the law is at work here….”
What’s going on, judge, is a cultural/judicial revolution by the left.
Like so many parts of our Republic, the judicial system is in need of an overhaul. When one federal judge that is hand-picked because of his/her ideology can stop the entire country from taking an approved step on any matter, there is something wrong with that system. These partisan judges no longer make any attempt to hide their bias and lack of judicial ability. As angry as I get sometimes with the three SCOTUS justices picked by Trump, when I read the reasons for their dissent, it sobers me up and I realize that they made their decisions based on law and not the public mood.
When one federal judge that is hand-picked because of his/her ideology can stop the entire country from taking an approved step on any matter, there is something wrong with that system.
Careful. That door swings both ways:
When one federal judge that is hand-picked because of his/her adherence to the Law and Constitution can stop the entire country from taking an approved but unlawful or unconstitutional step on any matter, that is the system working as intended.
We don’t need to disempower the judiciary; that just empowers the Legislative and Executive branches. Instead, we need a co-equal Judicial branch with judges who follow the Law and Constitution over personal ideology.
It’s that last part — Law and Constitution over personal ideology — where we have trouble.
“Update – so I don’t forget – I just checked – this was our 50,000th published post at Legal Insurrection”
Mazal Tov!!
sounds like an impeachable offense,…
50,000 posts to illuminate truth and to stand against Leftists’/Dumb-o-crats’ brazen lies, distortions and obfuscation in service of their obnoxiously totalitarian ethos and agenda — thank you, Professor Jacobson and team, for everything that you do on the LI website. Your contributions and efforts towards achieving a better society and in service of freedom are appreciated and incalculable.
Dumb-o-crat judges ignoring precedent and flippantly and brazenly changing their rulings, based upon the political affiliation of the President who is currently occupying the White House?
These reprobates become more shameless and hypocritical, by the day.
I cannot join in praising VanDyke. A truly honorable man would resign his position with a scathing explanation of his reasons. Writing an impotent, scathing and intemperate dissent is moral cowardice. He gets to look like a hero while retaining all the power and privileges of a corrupt system.
I think you might want to think that remark through. If he resigns then he will be replaced by another lefty and then it will be the way it used to be at the 9th. In every circuit. appeals, or SCOTUS, numbers count, and resigning does absolutely nothing except make the resigner feel good.
If VanDyke wants to spend his life as a conservative makeweight in a cesspool that doesn’t say much for him either.
Dissents, while not binding at the time, often come up on appeal.
Without dissents, the Circuit courts become a rubber-stamp organization, always ruling unanimously, and appealing bad decisions becomes that much more difficult without a judge’s reasoned opinion supporting the appellant’s argument.
Instead of saying VanDyke should quit because he can’t “fix” anything himself, we should be thanking him for writing solidly-reasoned dissents that will become the basis for future “fixes” on appeal. That’s why dissents are important.
The Trump appointees on the 9th Circus have made some changes to the previously standard Far Left decisions which were oft reversed. Just because he was a minority dissent in this case is essentially the luck of the draw on a three judge panel. Next time around he could be one of the two who rule for the law and Constitution. You need a broader viewpoint than one case.
There is a “but Trump” exception to just about everything involving President Trump. President Trump tries to end DACA which was created by an executive order with an executive order was stopped by the courts because he apparently didn’t have a good enough reason. Trump is being prosecuted for document possession that every other POTUS has done and had his home raided by the FBI in a completely unprecedented manner. He is being prosecuted using new legal theories and being denied due process rights that are normally inviolate except in extreme circumstances. Rights such as attorney client privilege are much less protected for him than ISIS terrorists caught in Afghanistan. All under the basis that Trump is an exception to any rule or standard because “but Trump.”
“Trump is being prosecuted for document possession that every other POTUS has done and had his home raided by the FBI in a completely unprecedented manner. ”
Not to mention Joe Biden taking some from the skif when he was a SENATOR YEARS ago, and hid them in at least 4 different places, and Hillary destroyed some that were subpoenaed….but TRUUUUMMMMPPPP!!!
Right. Trump, as President, at least had the authority to see, have, and declassify those documents. Biden, OTOH, was found with classified documents from his times as Senator and Vice President, neither of which has the authority to retain or declassify documents.
The 9th Circus strikes again? Color me shocked. Not.
The 9th Circuit is HUGE. The other circuits cover between 3 and 7 States, but the 9th covers 9 States AND 2 territories, totaling about a fifth of the geographic area of the country. It also has nearly double the population and double the judges (sometimes more) of any other circuit.
I’d argue that the 9th should be broken up and some of its area transferred to other circuits, but the problem arises that the two bordering circuits, the 8th and 10th, are also already on the larger side, covering 7 and 6 States, respectively.
Alternatively (and preferably), it could be divided into two circuits — the existing 9th and a new 12th Circuit — each with about half the area, population, and judges. Just spit-balling here: California, Nevada, Arizona, Hawai’i, and the two territories Guam and the Mariana Islands, could continue as the 9th Circuit, while Washington, Oregon, Idaho, Montana, and Alaska could form the new 12th Circuit. Or vice versa.
The only question is, which SCOTUS Justice would supervise the new Circuit? Kagan could keep both (she currently supervises the 9th), or one could go to the Justice with the currently-smallest Circuit. Unfortunately, at the present time that would be Jackson, and given her ridiculous dissent in the Affirmative Action case, if it were me I’d rather stay with Kagan. (And that’s saying something!)
Trump rule == Bad.
Biden rule substantively identical to Trump rule == Good.
If it weren’t for double-standards, the Left would have no standards at all.
(Now let’s challenge Trump’s extra-legal “bump stock” rule and see if it gets similarly thrown out because “TRUUUUMP!!!”, upheld because “GUUUUNS!!!”, or — what should happen — thrown out because the executive branch lacks the authority to unilaterally re-write legislative definitions passed by Congress. Which standard is more important?)