The Supreme Court handed The Trump Administration a major win yesterday by lifting all injunctions on the new Trump asylum policy being enforced. That policy could result in a drastic reduction of asylum claims along the Southern Border since anyone who passes through another country like Mexico would have to first seek asylum in that country. The ruling is also a strong rebuke to the lower courts, particularly United States District Court Judge Jon Tigar in San Francisco who issued multiple orders to try to impose a national injunction.
Many judges and commentators have expressed concern over the increasing practice of trial judges to issue nationwide injunctions rather than injunctions confined to their district or their circuit. Most recently Attorney General William Barr wrote an opinion piece in The Wall Street Journal objecting to the fact that the Trump Administration has already faced twice the number of nationwide injunctions that were imposed against the Obama Administration.
In this case, the 9th Circuit issued a prior order reversing Tigar and limiting the injunction to the circuit. However, that would still bar the enforcement of the policy in California, Arizona, Alaska, Hawaii, Montana, Nevada, Idaho, Guam, Oregon and Washington. Tigar issued a second order seeking a broader injunction, but all of that ended with a sweeping reversal by the Supreme Court.
While this order was not a ruling on the merits, it means that the policy will go into affect pending a final resolution.
Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented and objected that “Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution.” That however seems a bit off center from the jurisdictional question. This is not the merits and indeed the Supreme Court does not referee policy disputes. The issue is whether it is appropriate to enjoin such a rule on a national or a regional basis before a final decision is made on the merits.
We will now have to wait for that ruling, though courts could face again the injunction question as the appeal moves forward. In the interim, it just got much much more difficult to claim asylum in the United States.