The Trump administration went to the Supreme Court on Tuesday, seeking an order that would allow it to enforce its new policy barring asylum claims by those who cross into the country at the southern border without authorization.
Justice Elena Kagan has called for a response to the Justice Department’s request by noon Monday, Dec. 17.
On Dec. 7, the US Court of Appeals for the 9th Circuit denied the Justice Department’s request to put on hold a district court judge’s order that halted the policy’s enforcement.
“The nationwide injunction is deeply flawed and should be stayed pending appeal and, if necessary, further proceedings in this Court,” Justice Department lawyers told the Supreme Court in Tuesday’s filing requesting a stay.
The two-part policy change involved the Justice Department and Department of Homeland Security issuing a new rule asserting that those who violate a presidential order restricting entry along the southern border of the United States (that had not, at that point, been issued) “would not be eligible for asylum.” Then, Trump issued the order.
The ACLU sued on behalf of organizations that assist with asylum applications. US District Judge Jon Tigar halted enforcement of the policy change — issuing a temporary restraining order in the days before Thanksgiving.
“Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” Tigar wrote.
The ruling led to backlash from President Donald Trump, who dismissively referred to Tigar as an “Obama judge.” That comment, in turn, prompted a rare rebuke from Chief Justice John Roberts.
At the 9th Circuit, Judge Jay Bybee — a George W. Bush appointee who has, in the past, written strong defenses of executive power (including signing the opinions now known as the “torture memos” in the Bush administration) — wrote the court’s 2–1 opinion holding “that the Rule is likely inconsistent with existing United States law” and therefore upholding Tigar’s order, treating it as a preliminary injunction.
Although DOJ questioned Tigar’s order as “unwarranted judicial interference,” Bybee shot back that “if there is a separation-of-powers concern here, it is between the President and Congress.”
“Here, the Executive has attempted an end-run around Congress,” Bybee continued. “In combination with the rule, [the presidential order] does indirectly what the executive cannot do directly: amend the INA. Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the executive legislate from the Oval Office.”
Now, however, Solicitor General Noel Francisco filed a request at the Supreme Court, asking that the justices issue a stay of Tigar’s order and allow the federal government to enforce the new policy.
Francisco wrote that there is a “reasonable probability” that the Supreme Court would take the case if the 9th Circuit ultimately upholds the injunction on appeal.
“The nationwide injunction prohibits the Executive Branch from implementing an interim final rule adopted to address an ongoing crisis at the southern border, with significant implications for ongoing diplomatic negotiations and foreign relations,” he argued.
The ACLU, which is fighting the policy, will oppose the request.
“The Trump administration is asking the Supreme Court to short-circuit the normal judicial process and reinstate a blatantly unlawful policy. We will vigorously oppose this latest stay request, as we did in the Ninth Circuit,” the ACLU’s Lee Gelernt said in a statement.