SCOTUS Hands Trump Win on Third-Country Transit Bar to Asylum

The long and winding road to the marble palace

By Andrew R. Arthur on September 12, 2019

In a post on August 19, 2019, I wrote about an August 16 decision out of the Ninth Circuit limiting the scope of a nationwide injunction that had been issued on July 24, 2019, by U.S. District Court Judge Jon S. Tigar of the Northern District of California in East Bay Sanctuary Covenant v. Barr to Arizona and California. That case involved an interim final rule (IFR) that would have required aliens who entered or arrived in the United States across the Southwest border to apply for asylum in a third country through which those aliens had passed before seeking that protection in the United States — the "third-county transit bar". On September 9, 2019, Judge Tigar again enjoined enforcement of that rule on a nationwide basis, which the Ninth Circuit stayed on September 10, essentially again limiting the injunction to California and Arizona. On September 11, 2019, the Supreme Court stayed that injunction pending a full disposition of that case, allowing the IFR to take effect on a nationwide basis.

This was a result that I had anticipated. Three days after that IFR was issued on July 16, 2019, I wrote:

I expect that the IFR will be subject to judicial challenge within short order. Although there is a high probability that it will be enjoined at the district-court and potentially circuit-court levels, there is strong reason to believe that the Supreme Court will uphold the rule. Specifically, section 208(b)(3)(C) of the INA states: "The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under" paragraph 208(b)(1) of the INA. This is broad authority, which Congress may circumscribe as it sees fit. Until that happens, however, that authority remains.

Nor is the IFR inconsistent with 208(a)(1) of the INA. That provision states:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, [the credible-fear provisions in] section 235(b) [of the INA].

It is important to note the distinction within section 208 of the INA between the ability of an alien to "apply for asylum" in subsection (a) and the alien's ineligibility to receive that protection under subsection (b). Any alien may apply for asylum, but not every alien who applies for that protection is eligible for it.

So I guess I was right, at least in the short term. I caveat the validity of my retrospective foresight because it should be noted what this ruling from the Court is not: a final disposition of the legality of the IFR. It is, however, indicative of the Supreme Court's inclination (by a 7-2 vote) to do one (or both) of two things: Find that the IFR was lawful as promulgated, and/or to limit the use of nationwide injunctions by district court judges to effectively block Trump administration initiatives to stem the overwhelming flow of migrants entering illegally across the Southwest border.

In an August 2, 2019, post about a similar Supreme Court ruling in Sierra Club v. Trump (which involved the use of military resources to erect barriers along the Southwest border), I noted: "The Court's reasoning is not clear, but I read it as a warning to lower courts to avoid twisting the law to intervene in political questions." The Supreme Court's majority opinion in the September 11, 2019, ruling is terse (as was its ruling in Sierra Club), and therefore it is wise not to read too much into that decision.

I will note, however, that in a September 5, 2019, opinion piece in the Wall Street Journal, Attorney General (AG) William Barr called for an end to such nationwide injunctions:

When a federal court issues an order against enforcement of a government policy, the ruling traditionally applies only to the plaintiff in that case. Over the past several decades, however, some lower court federal judges have increasingly resorted to a procedural device — the "nationwide injunction" — to prevent the government from enforcing a policy against anyone in the country. Shrewd lawyers have learned to "shop" for a sympathetic judge willing to issue such an injunction. These days, virtually every significant congressional or presidential initiative is enjoined — often within hours — threatening our democratic system and undermining the rule of law.

During the eight years of the Obama administration, 20 nationwide injunctions were issued while the Trump administration has already faced nearly 40. Partisans who cheer this trend should realize that someday the shoe will be on the other foot.

The AG is not alone in his criticism of nationwide injunctions. In Trump v. Hawaii, Justice Clarence Thomas stated: "No statute expressly grants district courts the power to issue universal injunctions." He explained, moreover:

Universal injunctions ... are a recent development, emerging for the first time in the 1960s and dramatically increasing in popularity only very recently. And they appear to conflict with several traditional rules of equity, as well as the original understanding of the judicial role.

Justice Thomas concluded, after surveying historical precedent:

No persuasive defense has yet been offered for the practice. Defenders of these injunctions contend that they ensure that individuals who did not challenge a law are treated the same as plaintiffs who did, and that universal injunctions give the judiciary a powerful tool to check the Executive Branch. ... But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power. They at best "boi[l] down to a policy judgment" about how powers ought to be allocated among our three branches of government. But the people already made that choice when they ratified the Constitution.

AG Barr echoed these concerns:

Under Article III of the Constitution, courts are supposed to apply the law to the parties before them — not to thousands or millions of third parties. The Framers rejected the idea that the courts should act as a "council of revision" with sweeping authority to reach beyond concrete controversies and rule on the legality of actions taken by the political branches. Moreover, the power of federal courts to issue injunctions derives from English practice, which allowed courts to restrain a defendant to the extent necessary to protect the rights of the plaintiffs in the case. Nationwide injunctions are a modern invention with no basis in the Constitution or common law.

He continued:

Proponents of nationwide injunctions argue that they are necessary to ensure that the law is uniform throughout the country. But the federal judiciary wasn't made to produce instant legal uniformity. To the contrary, the system — in which local district courts are supervised by regional courts of appeal — was constructed to allow a diversity of initial rulings until a single, national rule could be decided by the Supreme Court.

This system has many virtues. It prevents a solitary, unelected, life-tenured judge from overriding the political branches and imposing on the nation potentially idiosyncratic or mistaken views of the law. A Supreme Court justice must convince at least four colleagues to bind the federal government nationwide, whereas a district court judge issuing a nationwide injunction needn't convince anyone. [Emphasis added.]

This reminds me of the quip by H.L. Mencken that: "A judge is a law student who marks his own examination papers." Underlying the point made by both Mencken and Barr (in my mind, at least) is the fact that unelected judges have significant power, which must be circumscribed lest their errors have significant consequences for our system of laws and justice, the power of the judiciary itself, and the faith of the people in the judicial system.

The application of the ruling is a little unclear. The IFR was initially effective "only prospectively, to aliens who enter or arrive in the United States on or after the effective date of" the rule, which was July 16, 2109.

Given the various injunctions and intervening stays, that rule could be applied to aliens who arrived on or after that date to whom the rule applied at the time of entry or arrival, and on a nationwide basis starting with the Supreme Court's order, as follows: on a nationwide basis up to July 24, 2019, (Judge Tigar's first order) for all aliens, starting again on August 16 for aliens who entered or arrived in Texas and New Mexico (when the Ninth Circuit issued its first stay), stopping again on September 9 (when Judge Tigar issued his second injunction) on a nationwide basis for migrants who entered or arrived that day, then to aliens who (again) entered or arrived on September 10, 2019, (when the Ninth Circuit issued its second stay) through Texas and New Mexico, and then on a nationwide basis again after the issuance of the Supreme Court's order on September 11. Or it could be applied to all aliens who entered on or after July 16, 2019.

There is a disaster at the border, and the Supreme Court appears to be willing to allow the administration to respond to that disaster so long as it does so within the bounds of the law. The Supreme Court does not appear, however, to be willing to allow individual judges in cherry-picked districts to set immigration policy for the United States as a whole, absent the clear illegality of an administration decision. That is good for immigration enforcement and policy, ultimately good for the courts themselves, and most importantly, good for our republican system of government.