John Yoo: Supreme Court makes right decision allowing Trump asylum policy to take effect


The Supreme Court was right Wednesday to stop a lone federal district court judge in San Francisco from blocking a Trump administration policy designed to limit the ability of Central American migrants to seek asylum in the U.S.

The new Trump administration policy requires migrants from Central America and elsewhere who first travel through Mexico to seek asylum there before seeking asylum in the U.S.

Under the policy, a migrant first has to be refused asylum in Mexico before he or she could seek asylum here. The Trump administration policy also applies to migrants who travel through other third countries before seeking U.S. asylum.


But a larger issue is at stake: whether a single federal judge can issue a nationwide order blocking presidential action or even legislation passed by Congress.

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Importantly, Wednesday’s Supreme Court order wasn’t a final ruling on the merits of the new Trump asylum policy. The high court simply ruled that an order by U.S. District Judge Jon Tigar blocking the new policy cannot take effect until the Supreme Court rules on the merits of the asylum policy.

The 9th U.S. Circuit Court of Appeals – which has jurisdiction over federal courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state – had earlier ruled that Tigar’s order blocking implementation of the Trump asylum policy could only take effect in those states and Guam, but not nationwide.

However, the Supreme Court ruling Wednesday overturned even that narrower appellate court decision, effectively blocking Tigar’s order from going into effect anywhere until a final high court ruling.

Judges like Tigar have produced a system of legal roulette, where any opponent of a president can simply shop around for the friendliest courts from which to challenge all of the federal government’s policies.

In a statement Wednesday night, the U.S. Justice Department said it “is pleased that the Supreme Court intervened in this case, which enables full implementation of this important immigration rule across the entire southern border. This action will assist the Administration in its objectives to bring order to the crisis at the southern border, close loopholes in our immigration system, and discourage frivolous claims.”

And President Trump tweeted that the high court ruling was a “BIG United States Supreme Court WIN for the Border on Asylum!”

Tigar’s order – known as an injunction – marked the second time that the judge stopped the Trump policy. The president’s asylum policy was designed to reduce the number of Central Americans illegally crossing our southern border – a situation President Trump has designated as a national emergency, as is his right under the law.

This case shows how a single judge in a “resistance” court like the San Francisco federal district court can bring the entire U.S. government to a grinding halt – even when the judge is wrong on the law.

There can be little doubt that nationwide injunctions like the one issued by Tigar have become the latest tool to stop President Trump from exercising the legal authority at his disposal.

In eight years, the Obama administration faced just 20 nationwide injunctions. In less than three years, the Trump administration has faced 40. This is a dramatic increase.

Judges like Tigar have produced a system of legal roulette, where any opponent of a president can simply shop around for the friendliest courts from which to challenge all of the federal government’s policies.

Tigar’s first nationwide injunction, imposed in July, was even too much for the famously liberal 9th U.S. Circuit Court of Appeals. That’s why the appeals court overturned Tigar’s order and limited his decision to only the states in its territory.

But Tigar wouldn’t give up. He reimposed his nationwide injunction because he held that several of the parties involved in the lawsuit operated in other states or even other countries. Part of the fault lies with the appeals court judges, who said that the district court could reimpose the nationwide injunction if it made the right findings. Tigar jumped at the opportunity.

Under normal circumstances, a district court judge would hold off imposing such a sweeping order, in order to allow the federal government to appeal his or her ruling and permit other courts to consider the issue. Indeed, a federal judge in Washington, D.C., had already reached the opposite conclusion and upheld the asylum plan.

Tigar’s nationwide injunction prevents the federal government from addressing the crisis at the southern border and undermines the ability of the president and Congress to reach a political solution.

And a nationwide injunction is particularly damaging when the federal government is likely to win its case on appeal to the Supreme Court.

The Trump policy seeks to reduce groundless asylum claims, which according to the government constitute the great majority of such claims. Rather than fearing persecution in their home countries – as they claim when seeking asylum – most of the asylum seekers are actually economic migrants, seeking to game their way into the United States to get jobs and earn more money than they could at home.

Tigar absurdly found that the federal government had no foreign relations or national security reason to issue its asylum order, and ruled that as a result, the asylum policy had to go through a longer period of administrative development. This defies common sense.

Tigar also held that immigration law precludes the federal government from including additional qualifications for asylum, even though the law actually says the exact opposite.

In last year’s case of Hawaii v. Trump, the Supreme Court rejected almost identical arguments to uphold the Trump administration’s “travel ban” involving migrants from countries where terrorism could threaten the U.S.


Neither Republicans nor Democrats should want a single district judge to have the power to block a policy that is legal and produced by our elected leaders while a case is tied up in appeals in the federal courts for years.

Nationwide injunctions like the one issued by Tigar short-circuit our political system, blocking Congress and the president from carrying out their legitimate functions.

Such nationwide court orders by a single district judge destroy the careful organization of our justice system, which creates layers of appellate and Supreme Court review so that the federal judiciary can carefully consider all possible arguments and facts when it reaches a decision.


The Supreme Court should combat this end-run around the normal justice system by making clear that a district judge can only issue judgments that bind the parties within the geographic territory of his or her district.

The Trump administration and Congress should also amend the law governing federal courts to eliminate the misinterpretation of a judge’s powers. If the Supreme Court does not use this case as the opportunity to narrow injunctions, a single district court judge will be able to block the federal government from carrying out its constitutional functions. That is not what the framers of the Constitution intended.


Source: FoxNews

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