The Trump Administration won a surprising and significant victory in that hotbed of #Resistance Lawfare, the Ninth Circuit.
In March, the administration announced a change to the process for evaluating the claims of persons seeking asylum. In the past, asylum seekers were allowed to remain in the United States as their claims were evaluated. The change required “other than Mexican,” aka OTM, asylum seekers to remain in Mexico while their cases were examined. This would obviously reduce the attractiveness of using a bogus claim of asylum as a way of disappearing into the hinterlands of the United States without worrying about being picked up by ICE for some years.
One of our black-robed masters disagreed and issued an injunction (read Mike Ford’s Leftist District Judge Decides National Policy). I was sort of surprised when the Ninth Circuit stayed implementation of the injunction and green-lighted an emergency appeal by the Justice Department (see The 9th Circuit Makes An Absolutely Shocking Decision On Trump’s Asylum Policy) and opined that that court might be poised to set aside the lower court order:
The decision to stay the lower court injunction was unanimous pending a brief. The fact that they did this so quickly and so overwhelming should point to the court leaning at overruling the judge entirely, but this is the 9th circuit. Don’t put it past them to come up with some insane justification for why the President can’t exercise his constitutional authority over immigration.
Now the Ninth Circuit has ruled:
A federal appeals court ruled Tuesday that the Trump administration may, for now, require certain non-Mexican asylum seekers to wait in Mexico pending resolution of their cases.
A three-judge panel of the U.S. Court of Appeals for the 9th Circuit cited different reasons for permitting the “remain in Mexico” initiative to move forward after a lower court blocked it last month. The appeals court allowed the policy to continue only on a temporary basis, while the court considers broader issues in the case.
The “broader issues” are undoubtedly some clever way to sandbag the Administration after slapping on a patina of reasonableness. For instance:
Judge Diarmuid O’Scannlain, an appointee of former President Ronald Reagan, authored the 11-page opinion and wrote that the administration was likely to succeed on legal challenges to the policy under federal immigration and regulatory law.
O’Scannlain also said the Homeland Security Department could face harm if a federal court order freezes one of its enforcement tools.
“DHS is likely to suffer irreparable harm absent a stay because the preliminary injunction takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the nation’s southern border on a daily basis,” he wrote.
The other two judges — Obama and Clinton appointees — also backed allowing the policy to stay in effect, but raised questions about it in concurring opinions.
Judge William Fletcher, the Clinton appointee, argued that existing federal statute did not allow DHS to send migrants to Mexico under the program.
“The government is wrong,” he wrote. “Not just arguably wrong, but clearly and flagrantly wrong.“
I don’t know how a rational, sane, and non-corrupt judge can, on the one hand, overturn an injunction and on the other condemn the decision he’s supporting as being “clearly and flagrantly wrong.”
My guess is that the panel wanted to rule in favor of the lower court but was afraid that the Supreme Court would smack down this judicial tyranny again. Instead, they gave a temporary win to the Administration as they huddle and contrive some novel legal theory on why the agency charged by Congress with enforcing immigration law acted illegally by enforcing immigration law.
Eventually, this whole matter is going to come to a head and John Roberts is going to be forced to act. For all of his talk about trying to protect the integrity of the courts, he’s doing a damned shabby job of it in allowing the Ninth Circuit to run its own country in defiance of the law of the land.