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December 11, the Trump administration made a bold move: they went to the Supreme Court with the expectations that they would get an order to allow them to enforce new asylum policies. This policy specifically would bar claims from those who cross into the country on their southern borders without authorization.
Justice Elena Kagan was called for the response to the Justice Department’s request by noon Monday, December 17.
This request came after the US Court of Appeals denied the Justice Department’s request for the 9th Circuit. That happened on the December 7, and as a result, it halted the enforcement of the policy.
“The nationwide injunction is deeply flawed and should be stayed pending appeal and, if necessary, further proceedings in this Court,” said the Justice Department lawyers about the US Court of Appeals decision. This was mentioned in the filings on Tuesday with the Supreme Court, requesting a stay.
This two-part policy changed involved both the DOJ and Department of Homeland Security to issue a new rule that asserted that those who were in violation of the presidential order “would not be eligible for asylum.” This was only applicable to those who came along the southern border of the US. Then, Trump issued the order.
The ACLU sued on behalf of organizations that assist in asylum applications. US District Judge Jon Tigar also got involved, halting the enforcement of the policy change, and issuing a temporary restriction order a few days before Thanksgiving.
Tigar wrote, “Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,”
This ruling from Tigar wasn’t without backlash from the President of course. In a tweet, President Donald Trump referred Tigar as an “Obama judge.” That comment prompted a rare rebuke from the Chief of Justice John Roberts.
Judge Jay Bybee also wrote about the court’s 2-1 opinion too. He held, “that the Rule is likely inconsistent with existing United States law,” and therefore upheld Tigar’s order. This act turned that order into a preliminary injunction.
Bybee defended Tigar further when he had this to say about the DOJ’s questioning Tigar’s order:
“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. 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, requesting that the justices issue a stay of Tigar’s order, thus allowing the federal government to enforce this policy.
Francisco argues that this Tigar’s order provides a significant roadblock to an ongoing crisis at the southern border. The ACLU doesn’t buy it and plans on opposing this request.
Lee Gelernt wrote further about that stance in a statement:
“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.”