The Ninth Circuit Court of Appeals has stopped a lower court from putting the Trump administration’s only workable solution to the asylum crisis on ice, and that’s encouraging in more ways than one.
The “remain in Mexico” policy that was introduced by the administration earlier this year will help to close the immigration system’s greatest loophole.
The broader implication of the court’s decision is that a federal appellate court is finally willing to put its foot down and stem the flood of nationwide injunctions that threatens our established constitutional order.
As I’ve written previously, the rapidly increasing willingness of lower courts to use this once-unknown remedy in ever more politically charged cases over national policy is alarming. Regardless of your personal politics or views about the outcome of any particular case, this allows one judge to set policy for the entire country, which represents a dangerous concentration of power.
The politically motivated rush to injunctions is crippling our executive branch’s ability to govern, denigrating Congress’ responsibility to legislate, and making a mockery of the process that enables judges to make good law out of complex legal disputes.
In the case at hand, a typical consortium of activist lawyers — including bad actors like the Southern Poverty Law Center — thought they had another victory all wrapped up. They celebrated as one Barack Obama-appointed judge in San Francisco handed them an injunction that put a hold on a major element of the Trump immigration agenda — rules designed to prevent the abuse of the asylum process.
Despite the recent surge of mostly fraudulent asylum claims, this single preliminary ruling would have forced the Department of Homeland Security to allow upwards of 2,000 illegal aliens to enter the United States every day, a larger number than we could ever hope to detain for even a few days, much less the years it may take for their claims to be adjudicated.
The Trump administration’s “Migrant Protection Protocols” (MPPs), which were formulated in close cooperation with the Mexican government, allow DHS to send asylum claimants back to Mexico while they await their hearings. The migrants enjoy full permission to live and work in Mexico, and still have the opportunity to return to the U.S. to have their asylum claim considered. It’s a humane and pragmatic solution that addresses the purely economic motivations behind most false asylum claims.
The protocols are clearly legal and properly implemented, but the ACLU and other groups challenging them secured the initial injunction by arguing that it violates laws against sending asylum-seekers back to countries where their life or freedom would be threatened.
Yet the judges of the Ninth Circuit, including both Republican and Democratic appointees, sided with the government and agreed to lift the lower court’s nationwide injunction while the case goes through the normal appeals process.
This is a powerful moment, because such nationwide injunctions — which did not even exist before the 1960s, and have been very rare until recently — have been granted far too easily ever since President Trump took office. Perhaps urged on by their zeal to frustrate Trump’s agenda, a small number of very liberal judges have handed a few activist legal groups an effective veto on legitimate exercises of executive branch authority.
At long last, an appellate court, and a notoriously liberal one no less, has said, “enough.”
That’s good news whatever your politics may be. Just as nationwide injunctions have been used to frustrate Trump’s agenda, they’ve also been turned against liberal priorities such as Obamacare and Deferred Action for Parents of Americans (DAPA). Back in December, for instance, a lower court judge in Texas struck down a key Obamacare provision, but refrained from issuing a nationwide injunction.
Now, even the ultra-liberal Ninth Circuit has decided that there needs to be a limit on judicial veto power.
While we shouldn’t rush to judgment on the meaning of this one ruling as it relates to the trend of judicial overreach by select federal courts, If we’re lucky, this decision may reflect an emerging spirit of judicial restraint with regard to nationwide injunctions that would go a long way toward restoring the constitutional role of all three branches of government.