WASHINGTON—The Supreme Court threw out an Obama-appointed judge’s nationwide injunction late on Sept. 11, clearing the way for President Donald Trump to enforce his asylum policy that requires some claimants to wait in Mexico for U.S. immigration processing.
The Trump administration policy withholds asylum from applicants who pass through a third country en route to the United States without first seeking asylum there. This policy is consistent with long-recognized norms for seeking asylum established by the Convention Relating to the Status of Refugees, which the United States honors.
The president promptly hailed the high court’s dramatic decision.
“BIG United States Supreme Court WIN for the Border on Asylum!” he wrote on Twitter on Sept. 11.
The Supreme Court ruling came in an extensively litigated case known as East Bay Sanctuary Covenant v. Barr.
Critics say the kind of restraining order issued by Tigar, which goes well beyond the territorial jurisdiction of his judicial district and the 9th Circuit itself—sometimes called a universal injunction—allows unelected judges to function as lawmakers and, in effect, veto presidential directives.
Then, on Sept. 9, Tigar reinstated the injunction, restoring its nationwide effect. Tigar wrote in the decision that he was reviving the nationwide injunction because nonprofits, such as one of the plaintiffs in the case, can’t predict where asylum-seekers will make their claims. The judge wrote the injunction needed to continue in effect at the national level because there was a “need to maintain uniform immigration policy.”
That very same day, the 9th Circuit Court issued an order staying Tigar’s ruling. But this time, without indicating as it did Aug. 16, that the injunction could remain in effect within the territorial boundaries of the 9th Circuit, the appeals court order stayed Tigar’s decision “pending further order of the court.”
In its Sept. 11 order, the Supreme Court next “stayed in full” both the July 24 and Sept. 9 orders issued by Tigar, “pending disposition” of the administration’s outstanding appeal of the 9th Circuit ruling that upheld Tigar’s earlier injunction, but limited its application to states within the 9th Circuit’s physical territory.
Supreme Court Justice Sonia Sotomayor filed a dissenting opinion, which was joined by Justice Ruth Bader Ginsburg.
The high court’s stay is “especially concerning,” Sotomayor wrote, because the Trump administration “topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in.”
The court “sidesteps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rulemaking process.
“I fear that the Court’s precipitous action today risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency,” Sotomayor wrote.
If the Trump administration ultimately loses when the litigation is finally resolved in the 9th Circuit, an appeal to the Supreme Court seems likely. Other related litigation remains pending in various federal courts.
The 9th Circuit Court of Appeals’ newfound reluctance to interfere with Trump’s policies appears related to the changing ideological composition of the appeals court.
The often-reversed, sprawling 9th Circuit, which covers California, various Western states, Alaska, and Hawaii, has long been criticized by conservatives, who argue its judges are too liberal and unwilling to follow the Constitution. But it now has seven Trump-appointed judges, which is more than any other federal appellate court, according to a Fox News analysis. Thirteen of the Circuit’s 29 seats are now occupied by Republican-appointed judges, up from just six in 2018.
“Thanks to Trump, the liberal 9th Circuit is no longer liberal,” The Washington Post observed earlier this year.
A reminder of Trump’s success in staffing the federal judiciary came Sept. 11 when the U.S. Senate confirmed his 150th judicial nominee, marking what Judiciary Committee Chairman Lindsey Graham (R-S.C.), a Trump ally, described as a “historic milestone.”
Trump has appointed 105 judges to district courts, 43 to circuit courts, and two Supreme Court justices. By this point in his first term, Obama had secured the confirmation of 74 district court judges and 20 circuit court judges. Like Trump, two of Obama’s Supreme Court nominees were confirmed in his first three years.
