September 11, 2019

"In a major win for the Trump administration, the Supreme Court issued an order late Wednesday ending all injunctions that had blocked the White House's ban on asylum for anyone trying to enter the U.S. by traveling through a third country..."

"... such as Mexico, without seeking protection there.... President Trump tweeted that the ruling was a 'BIG United States Supreme Court WIN for the Border on Asylum!' The administration had argued in a brief to the Supreme Court Tuesday that unless the nationwide injunction is lifted, it 'would severely disrupt the orderly administration of an already overburdened asylum system.'... '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]."

Fox News Reports.

90 comments:

rcocean said...

I've never understood why District Courts can issue nation-wide injunctions. Obviously, its another one of the invisible ink portions of the Constitution that was discovered by Earl Warren. Of course, congress could fix it easily, but won't.

Bob said...

Get an "access denied" on the Fox News link.

rcocean said...

BTW, don't think that Breyer and Kagan are showing how moderate they are. Its quite probable they knew they'd lose 5-4, and it would look better if a couple D Justices join the majority.

Skylark said...

“upend longstanding practices”

I didn’t know that “Justices” were really rubber stamps for existing practices rather than interpreters of our constitution. You learn something new every day. Remember when the “longstanding practice” was to outlaw abortion? It’s like those two women are determined to prove rhhardin right. It’s pretzel logic.

rehajm said...

What Skylark said.

rehajm said...

Slavery was a longstanding practice, too.

Seeing Red said...

NOT TIRED OF WINNING!

Skylark said...

Still, the "longstanding practice” is an admission that they had no real argument with the ruling. It’s like it was unanimous.

Darrell said...

600 years of common law sounds like a longstanding practice.

mockturtle said...

Was Ginsburg there in person or did she vote by proxy? I suspect they will keep her on life support until the 2020 election hoping for a Dem victory.

Ray - SoCal said...

Refresh on Fox News so you can see the content.

Judge Overplayed his hand on the nationwide injunction...

Ray - SoCal said...

Interesting history of Nationwide injunctions.

Trump has been hit with 22 of them in his first year, 37 as of May 2019.

Obama had 2.

27 in the 20th century.

None in the first 175 years of the US.

And the fact that Plaintiffs do venue / judge shop to get the right ruling.

Seems this was a big lawfare tactic against Trump, that got overused.

References:

https://www.nationalreview.com/2018/03/nationwide-injunctions-stop-elected-branches-enforcing-law/

http://www.gopusa.com/ag-barr-rips-federal-judges-over-nationwide-injunctions/

Iman said...

Who would've guessed the Notorious RBG and Sotomayor were proponents of Cloward-Piven.

readering said...

The nationwide injunction had already been overturned (twice). BUt this overturns the Circuit-wide injunction (covering the California and Arizona portions of the Mexican border).

Ralph L said...

seeks to upend longstanding practices regarding refugees

Duh! That's why he was elected.

BarrySanders20 said...

"seeks to upend longstanding practices regarding refugees

Duh! That's why he was elected"

Exactly. The longstanding practice of ignoring our border and reinventing what "refugee" means is why we are where we are now.

Browndog said...

A lot being left out here-

Last week an Obama appointed judge defied the 9th and the Supreme Court and re-instated his temporary injunction that the courts struck down.

He doesn't need to be over-ruled, or impeached.

He needs his bloody head atop a pike on Pennsylvania Ave.

rhhardin said...

Well, good.

roadgeek said...

"...I've never understood why District Courts can issue nation-wide injunctions. Obviously, its another one of the invisible ink portions of the Constitution that was discovered by Earl Warren. Of course, congress could fix it easily, but won't...."

Clarence Thomas has indicated in the recent past that he'd like to see one of these cases come before the court, so a decision could be rendered re the constitutionality of nation-wide injunctions. His remarks seemed to indicate that he'd like to see the practice ended.

Skylark said...

Well now the practice is the same as the longstanding practice in most other countries. So I guess the next time it comes up, it will be unanimous.

R C Belaire said...

Do "long standing practices" have the force of Black Letter law? Yeah, I didn't think so either...

Skylark said...

Aren’t we part of some international treaty that basically says the same thing that Trump says, and don’t treaties have the force of law once ratified.

This is one more case where Trump has more respect for the Constitution than his predecessor.

gspencer said...

"'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.

rcocean said...

The Ginsberg opinion is absurd. basically, its "OMG, how dare the SCOTUS deviate from its tradition of not overruling injunctions". Except, the SCOTUS rarely overruled them because the injunctions themselves were rare.

Its like saying, "How dare that Umpire overrule that triple play - Umpires rarely do that."

mccullough said...

99% are economic migrants.

Refugees would stop in the first safe place. Not travel over 1,990 miles to get to America.

Good to see some Legal Realism pushed down the throats of Progressives.

rcocean said...

It case you missed it, or are slow on the uptake, the Left-wing judges have made it clear they are "untethered to the Constitution" and will gut the 2nd Amendment when they get the chance. In addition, to making any attempt to enforce the immigration law "Unconstitutional".

"conservatives" like Mitt Romney, George Will, and David French seem to have strangely unconcerned with Hillary appointing the 5th SCOTUS judge and giving us a 21st version of the Warren Court.

mccullough said...

Ginsburg and Sotomayor didn’t have the guts to call Mexico a shithole.

David Begley said...

Ann Althouse is a constitutional law and federalism expert. I think she would agree with me that SCOTUS is correct here. We must have one uniform national immigration policy.

Mark said...

I've never understood why District Courts can issue nation-wide injunctions.

Until recently, district courts didn't understand that they could either. They all believed that a given court's jurisdiction ended at the border of their districts. Except . . .

The only possible exception was that a district court does have jurisdiction over the parties in the case, including the United States. And an injunction is issued against a party -- wherever that party might be or act.

The problem with a multi-state party like the federal government is that a judge in District A can issue an injunction, while a judge in District B can issue a judgment in favor of the government. Does District A control District B? Of course not. District B is entitled to have its judgments respected too.

Leland said...

I don't know if a big win for the Supreme Court, because they shouldn't have to slap a lower court judge that continues to defy previous Supreme Court rulings on this specific matter. Seems like they just proved they are not impotent in the face of lower courts.

Gahrie said...

Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution,

So fucking what? The only thing that matters is are Trump's actions allowable by the Constitution?

readering said...

There are statutes on the subject. He has to follow the law.

YoungHegelian said...

I'm not a lawyer, but I just couldn't see how a power such as border control, which is so clearly reserved to the Executive by the Constitution, could be called into question by a lower court. I can see how a statutory immigration law can be called into question by a court, just like any other law, but it just seems to me that the Executive always should get the benefit of the doubt.

I mean, just look at Arizona vs United States, where the SCOTUS ruled that enforcement of immigration law is so reserved to the Executive branch that the Executive branch can not only not enforce statutory immigration law as it sees fit, it can even prohibit the states from enforcing laws on the books!

You can't have it both ways. Either the Executive branch runs the show or it doesn't. If it doesn't, Arizona makes no sense. If it does, then the Trump admin get their turn at border control & that's that.

Gahrie said...

There are statutes on the subject. He has to follow the law.

If Trump wasn't following the law, they would have said so. Trump is following the law, so they had to invent the whole "longstanding practices" practices excuse so they could vote against him.

YoungHegelian said...

@readering,

There are statutes on the subject. He has to follow the law

No. That's not clear after Arizona, where the Obama administration explicitly refused to enforce immigration laws that it didn't like, for whatever reason.

h said...

My initial reaction was to like the decision. But I haven't seen anyone in the comments willing to engage Sotomayor on the three points she raises:

1. The rule requiring people to seek asylum in Mexico before they sought it in the US was inconsistent with the asylum statute, . Section 1158 generally provides that any noncitizen “physically present in the United States or who arrives in the United States . . . may apply for asylum.”

2. The Government skirted typical rulemaking procedures, because the Government effected a sea change in immigration law without first providing advance notice and opportunity for public comment.

3. The explanation for the rule so poorly reasoned that the Government’s action was likely arbitrary and capricious.

To me, point 3 seems weak, but point 1 seems strong.

Bay Area Guy said...

Trump has appointed 7 judges to the 9th Circuit. It is now 16-13, Dem judges. It is no longer the wacky 9th.

If you're still a #NeverTrumper after this, boy, are you lost.

cubanbob said...

Just another layman yammering here. It seems to me if one wants to have the federal government enjoined nationally by a district court, the court should the DC district court.

dreams said...

It's a win for our country too.

Hagar said...

The excessively liberal provisions for asylum in the U.S. were not a problem until the present Democrat Party decided to use them as a loophole for bringing a gadzillion "undocumented Democrats" into the country.

Michael K said...

readering said...
There are statutes on the subject. He has to follow the law.


You mean like Obama did ?

Drago said...

readering: "There are statutes on the subject. He has to follow the law."

LOL

Yeah. A lefty wrote that. Just now.

Without irony.

Skylark said...

"That's not clear after Arizona, where the Obama administration explicitly refused to enforce immigration laws that it didn't like, for whatever reason.”

That was when the states were not allowed to enforce immigration law because only the Federal Govt could enforce it, except for sanctuary cites and states of course, where the states make immigration law and the Federal Govt is forbidden.

It seems very confusing, but we all know that Calvinball has rules. Calvin always wins, that’s the rule of Calvinball.

pacwest said...

@h
"Section 1158 generally provides that any noncitizen “physically present in the United States or who arrives in the United States . . . may apply for asylum.” "

Not a lawyer here, but isn't there something to the rule they must apply for asylum in the first safe country they cross? Seems contradictory for anyone traveling by land. What weight does 'they must apply at an embassy in their country of origin' hold? Congress needs to clean this mess up. Fat chance of that.

readering said...

Drago picking up the slack for Fen.

h said...

replying to pacwest at 8:36. Not a lawyer either. And I think we need to recognize that 7 supreme court justices did not find this argument persuasive. But the only "opinion" I can find is Sotomayor's dissent, which means that I can't find a SC justice who responds to this point. So it's not that I don't think the point cannot be addressed, only that I haven't seen it addressed. There are a lot of smart legal minds in the AA commentariat; perhaps they will chime in.

rcocean said...

You have three things going on here.

1) The power of one district court (out of 900) to issue an injunction to stop the Federal Government from doing something until it goes through the legal process. There's NOTHING in the Constitution that allows this. And no one did it until 1962.

2) The power of ONE district court - out of 900 - to make immigration law, and 2nd guess every Administrative action regarding immigration law. There's nothing in the Constitution that allows a District Federal Court to do this. And this kind of micro-managing of the Federal Government wasn't done by the courts until the 1960s.

3) The legality/constitutionality of this particular action by the President.

Its a waste of time to debate point 3, since EVERY decision made by Leftist judges is based on politics. Whether they rule for Black or White, just depends on what is good for the Left. And you can always "Judge Shop" and find one DC judge out of 900 who will rule in favor of ANY crazy leftwing position.

BarrySanders20 said...

h - its right in the statute, immediately following the part the Wise Latina cited. She's so wise she doesn't need to cite the exception that is now the issue -- making the economic refugees wait in Mexico.

8 U.S. Code § 1158.Asylum
(a)Authority to apply for asylum
(1)In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.
(2)Exceptions
(A)Safe third country
Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien’s nationality or, in the case of an alien having no nationality, the country of the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

Mark said...
This comment has been removed by the author.
Mark said...

Just because she is a wise Latina doesn't mean that she knows what the hell she is talking about.

Bushman of the Kohlrabi said...

Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution

Back here on earth, there has been a 19 fold increase in asylum claims since 2009. Obviously it's being used as a loophole that's ripe for abuse. To say the abuse must continue because the policy has been in effect for a long period of time is idiotic.

And just think of all the longstanding practices that RBG has tried to upend during her time on the SC. What an incredibly weak argument.

James K said...

Does District A control District B? Of course not. District B is entitled to have its judgments respected too.

As I understand it, that makes SCOTUS stepping in almost a sure thing. But it would be better if the whole nationwide injunction thing got struck down once and for all.

JohnAnnArbor said...

Mexico is a perfectly capable, modern nation. What's wrong with asking for help there first?

Skylark said...

"Mexico is a perfectly capable, modern nation. What's wrong with asking for help there first?”

That’s a rhetorical question, right?

Sebastian said...

"a rule that seeks to upend longstanding practices"

So what, Ruthie? Were those practices required by law?

Bay Area Guy said...

Make Sotomayor Wise Again!

Gk1 said...

Long over due. I think Breyer and Kagan voting for the majority is a shot across the bow of the lower courts making a mockery of SCOTUS court rulings and the seperation of powers. How can a judge in Hawaii or Northern California defy the executive over things that are constitutionally his prerogatives? This shit is getting out of hand.

Leland said...

Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution,

A practice is not a law nor does a long history of a practice mean it should continue. It seems perfectly reasonable that the Executive Branch would have authority to issue rules regarding mere practices.

The Godfather said...

There are obvious shortcomings in our immigration laws that pro-immigration lawfarers have been taking advantage of. During Trump's first two years, when he had a Republican House and Senate, why didn't he push for legislation to make it easier to stop illegal immigration and deport illegal immigrants who got through? Instead, he pushed his "Wall", but made no serious effort to build it. Why? My guess is that he figured that an "immigration crisis" was better politics for him than "immigration reform". If he wins in 2020, and if the Republicans re-take the House and hold onto the Senate, do you think he'll push for immigration reform?

Seeing Red said...

Via Lucianne:

They were promoted as the eco-friendly way to generate both electricity and cash at the same time. But now thousands of home-owners who bought solar panels have complained that they're not reaping the rewards they were promised. The Financial Ombudsman Service has received 2,000 complaints and Barclays has put aside millions to compensate those who took on costly loans to pay for mis-sold panels.(Snip) After taking out a loan of £15,000 he discovered the panels did not generate the amount of electricity MyPlanet had promised–and also cost him more than £500 a year due to overheating issues.

Seeing Red said...

Ranking member of the House Oversight Committee Rep. Jim Jordan (R-OH) is demanding answers over Democrats' mysterious trips to Mexico, including details into the alleged "coaching" of migrants to exploit United States immigration law, a letter from the Republican exclusively obtained by Fox News says.

Nothing to see here. These aren’t the droids you’re looking for.

Seeing Red said...

Come back or I’ll be out of a job:

Via Lucianne

JUAREZ, Mexico — A United Nations agency, with funding from the U.S. State Department, is transporting thousands of immigrants from the U.S.-Mexico border back to Central America in a program that has drawn the ire of migrant legal advocates. The advocates question whether migrants fully understand their rights when they accept free plane and bus tickets home....

pacwest said...

"Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement,"

And Trump expects results in our negotiations with Central American countries by Oct 1.

Wince said...

John Yoo on Ingraham last night not only outlined the Trump administration's "fast track" legal strategy, but that the administration may no longer recognize these injunctions "outside the territorial boundaries of the court itself" [see boldface below].

JOHN YOO, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Right now the Trump administration is doing exactly what it should do. It is seeking to take these cases where a single judge, as you said, is blocking policy throughout the country, usually in districts or cities that are unfavorable to President Trump, and they are seeking emergency review at the Supreme Court.

The Supreme Court can bring this to a stop right away. In fact, this very case you mentioned coming out of here in San Francisco that's blocking the new asylum rules is actually a perfect vehicle for the Supreme Court to take the case and an end nationwide injunctions. Justice Thomas and the travel ban case in Hawaii versus Trump called on the court last year to do exactly that.

And the Trump administration, too, not just seeking emergency review of the district court, they could say, look, we think these district judges are overreaching their powers. It's not what the framers intended. And what we are not going to do is we're not going to obey a nationwide injunction outside the territorial boundaries of the court itself...

Birkel said...

The Godfather:
My best guess is because Trump knew full well that Paul Rino had no stomach for controlling the House and passing immigration reform.
-or-
Trump knew damned well that an awful lot of the establishment GOP were worthless shits.

Let's turn your questions back toward you.
Name one politician (who had a shot of becoming president) who could have accomplished what you might be imagining faced with the constraints of our system.

Let me put a fine point on it:
I won't pretend that the perfect is the enemy of the good.
Sell that shit elsewhere.

iowan2 said...

rcocean said:
BTW, don't think that Breyer and Kagan are showing how moderate they are. Its quite probable they knew they'd lose 5-4, and it would look better if a couple D Justices join the majority.

From the headline, I smelled CJ Roberts hand in the split. He sees every 5-4 split as a problem Roberts believes he needs to fix. Roberts believes idealogical splits give the citizens an opening to claim the court has become politicized. To that point, a recent analysis shows the leftist justices always vote in lock step. Justices on the right join with the left on a fair amount of decisions.
This case, since it was going to be 5-4 no matter what, it was easy for two on the left to swing over, thus starting to buffer the not so pretty picture of the leftist always voting in a block. I bet Roberts will continue to twist arms on the leftist to join the conservative majority,periodically, for appearances sake.

Birkel said...

After RBG leaves the Court, Roberts will be a lot less trouble.

Mr. Majestyk said...

To add to BarrySanders20's comment quoting the statute, to the extent there is any ambiguity in the statute, the interpretation of the agency charged with enforcing the statute (here, the AG) is entitled to deference from the courts, under the Supreme Court's Chevron decision.

Paul said...

MAGA!!! MAGA!!! MAGA!!! MAGA!!! MAGA!!!

Long overdue. Trump in 2020.

Ray - SoCal said...

Because the establishment GOP, especially agriculture backed businesses, likes the Cheap Labor afforded by Illegal Immigration

But the GOP voters hate illegal immigration.

Trump is one of the first GOP to actually do, what he said he would. What a change!

The usual behavior of establishment GOP, is they would say lots of the right words about illegal immigration, and do nothing. As they did in many areas. McCain's vote on Obamacare is a prime example of this behavior, of making a promise to get elected, and then breaking it.

> why didn't he push for legislation to make it easier to stop illegal immigration and
>deport illegal immigrants who got through?

Ray - SoCal said...

I'm very surprised Trump has been so effective on reducing illegal immigration.

What a change!

His actions with other countries has been very effective.

And the policies he keeps on pushing in the US.

The Democrats have gone insane on the issue.

walter said...

"the Executive Branch has issued a rule that seeks to upend longstanding practices"
aka "This is not who we are".

mockturtle said...

There are a helluva lot of 'longstanding practices' that need upending. And Trump is the guy to do it.

Yancey Ward said...

SCOTUS will have an injunction filed against its ruling by the end of the week.

I don't think that is joke, even if I hope that it is.

readering said...

More likely some briefs.

n.n said...

The Constitution takes a baby step away the Twilight fringe, and [Americans'] civil rights have returned to fashion. Here's to progress.

n.n said...

I'm very surprised Trump has been so effective on reducing illegal immigration.

He needs to address emigration reform to mitigate the progress of immigration reform at both ends of the bridge and throughout before planned parenthood. Still, addressing illegal immigration as a first-order forcing of progressive corruption is a baby step in the right direction.

n.n said...

"a rule that seeks to upend longstanding practices"

Why so Pro-Choice? Seek your answer at the twilight fringe and in other special and peculiar spaces.

Ray - SoCal said...

Pelosi will pass nothing that helps Trump, unless she has too.

I expect nothing will happen legislatively on immigration duringTrumps term unless you get a gop house in the next election.

Revised NAFTA is in a holding pattern in the house.

stevew said...

We've got that bastard, Trump, this time! Wait, what?!?

StephenFearby said...

Interesting if true:

Devin Nunes: UK memo warning about Steele's credibility exists
by Daniel Chaitin
September 11, 2019 10:22 PM

Rep. Devin Nunes said his team of investigators knows a memo from the British government disavowing British ex-spy Christopher Steele, the author of the anti-Trump dossier, is real.

A letter from the British Embassy to the incoming national security team after President Trump was elected to the White House is mentioned in a newly unsealed filing in federal court by former national security adviser Michael Flynn’s lawyers. The filing claims this letter was also sent to outgoing national security adviser Susan Rice and "apparently disavows former British Secret Service Agent Christopher Steele, calls his credibility into question and declares him untrustworthy."

Nunes, the top Republican on the House Intelligence Committee, said on Wednesday his team of investigators have been looking for that same document.

"We know that document exists," Nunes said on Fox News. "This document that came from the British government. But yet nobody can seem to find it."

Steele's dossier, which contained allegations about Trump's ties to Russia, was used by the FBI and Justice Department to obtain Foreign Intelligence Surveillance Act to surveil onetime Trump campaign adviser Carter Page. Republicans allege the FBI knew very well it was unverified and should not have used it before the Foreign Intelligence Surveillance Court.

Nunes said he hopes the Flynn case will shed a light on the elusive letter from the United Kingdom.

"I know there are witnesses out there that know this. And I hope that the judge in this case will actually get those witnesses that know this document exists and let them come in and talk to the court or at least give an affidavit to the court," he said.

https://www.washingtonexaminer.com/news/devin-nunes-uk-memo-warning-about-steeles-credibility-exists

Bay Area Guy said...

If RBG calls it quits while DJT is POTUS, then the DNC will become FUBAR.

stlcdr said...

Replace ’longstanding practices’ with less high-falutin’ words: ‘we have always done it that way’.

h said...

To BarrySanders20 and Mr. Majestyk: Thanks for responding to my question.

BleachBit-and-Hammers said...

The idea that you can come here and give birth and your baby is automatically a us citizen - that must be scrapped.
Major abuse on that front. Democrats approve of the abuse.

Ken B said...

RBG is a good and decent person. She deserves a long, happy and immediate retirement.

ConradBibby said...

Regarding the issue of asylum-seekers' having to apply in the first country country they enter, I believe that's a general requirement for all refugees under international treaty arrangements. The statute quoted above is referencing that requirement.

The asylum law is also fairly specific in not applying to people who simply are trying to escape some kind of personal hardship. To be eligible, you really need to be a member of some persecuted group. My impression is that the main reason these applications are ultimately denied in the vast majority of cases is that the applicants are claiming fear of stuff gang violence or domestic abuse at home, or say their kid has some medical condition that's difficult or too expensive to treat in Guatemala. Under the Sotomayor-dem approach, that person, if she can get to America, gets to apply for asylum in the U.S. even though, on its face, the claim doesn't involve any indication of group persecution, and then they get released pending a hearing that might take place a year or two later. Ultimately, the claim is denied (duh), but then, when the U.S. moves to deport the person, they can try to show that those personal hardships and others they can point to means that the alien should not be removed. So, it's really a situation where facially-deficient asylum claims are being used just as a pretext to get released in the U.S. and then the alien can shift gears and find some other strategy for remaining, perhaps with the aide and assistance of amnesty-minded politicians who are at the same time trying to change the law so that all of these people can remain.

Skippy Tisdale said...

"Replace ’longstanding practices’ with less high-falutin’ words: ‘we have always done it that way’."

With props to Willie Nelson...

I said the wrong way,
Ain't the right way,
But it's one way.

Todd said...

Funny.

Trump's ban on asylum is a LOT more in line with the Constitution than Obama's "Fast n Furious" but I don't recall all those folks squawking about Trump, ever squawk about Obama.

Funny, uh?

Unknown said...

Another liberal block vote by Supreme Corpse Ginsberg, or whatever clerk does her thinking for her.