SCOTUS delivers big Trump win and implicit rebuke to San Francisco federal judge's 50-state injunction on asylum rules change

In a very unusual move, the Supreme Court bypassed the lower courts and issued a decision vacating an injunction issued by Judge Jon Tigar of the San Francisco Federal District Court (who normally sits in the Oakland Federal Courthouse), prohibiting implementation of new rules on asylum.  Adam Liptak reports in the New York Times:

The Supreme Court, in a brief, unsigned order, said the administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country.

The court's order was a major victory for the administration, allowing it to enforce a policy that will achieve one of its central goals: effectively barring most migration across the nation's southwestern border by Hondurans, Salvadorans, Guatemalans and others. Mexican migrants, who need not travel through another country to reach the United States, are not affected by the new policy.

This is the second time that Judge Tigar has been overruled in his effort to dictate to the entire nation that a presidential policy not be allowed to take effect because he doesn't like it.  Jared Samilow of Legal Insurrection explains:

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 ruling for the government, the Ninth Circuit held the record did not support the award of a nationwide injunction. It ordered the rule be blocked only within the Ninth Circuit unless a more developed record showed that broader relief was necessary. Shortly thereafter, Judge Tigar ordered a bit more paperwork, held another hearing, and quickly restored the nationwide scope of the injunction.

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

There is reason for optimism that the Supreme Court will finally end the recent practice of federal district judges issuing nationwide injunctions preventing implementation of Trump administration policies while court challenges are underway.  It makes no sense that a single judge in a deep blue jurisdiction can act to suspend a Trump policy that he doesn't agree with when the appellate courts above district courts can enforce their judgments only within the territory of their jurisdictions, not nationally.

The speed with which the court acted, and the fact that only two justices — Sotomayor and Ginsburg — dissented from the order may indicate that the entire court is ready to slap down the national pretensions of its inferior courts at the district level.  Note that the lawsuit against the new regulations will proceed.  This SCOTUS decision does not consider the merits of the case, only the propriety of a nationwide injunction against them while the case is being heard.

Judge Tigar is the very judge that President Trump denounced as an "Obama judge" last November, provoking a widely derided rebuke from the chief justice of the United States:

President Trump scoffed at the judge who held up his order on ending asylum by calling him an "Obama judge," implying that it was nothing but politics that drove the decision. Chief Justice John Roberts of the Supreme Court was having none of it:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is somethng we should be thankful for."

The chief justice of the United States is ignoring the evidence:

There were 67 decisions after argument in the term that ended in June. In those cases, the four justices appointed by Democratic presidents voted the same way 51 times

More than three quarters of the time, four Democrat-appointed justices voted in lockstep.  Republican-appointed justices were slightly less partisan, voting in lockstep 55% of the time:

…the five Republican appointees held tight 37 times.

More importantly, in close votes, the Republican appointees were far more likely to stray from the partisan expectations:

And of the 20 cases where the court split 5-4, only seven had the "expected" ideological divide of conservatives over liberals. By the end of the term, each conservative justice had joined the liberals as the deciding vote at least once.

A strong Supreme Court decision forever banning district court judges from nationwide injunctions is desperately needed.  The fact that only two Democrat appointees dissented from the decision in question may yield a 7-to-2 decision.

Photo credit: Pixabay.

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