California Judge Puts National Block on Donald Trump’s Asylum Reform

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Neil Munro

A California judge insists he has the authority to freeze a national asylum reform, despite an August decision by the pro-migration Ninth Court of Appeals which narrowed the judge’s reach to just California and Arizona.

The block prevents President Donald Trump’s deputies from telling migrants they have to ask for asylum in the safe countries they travel through before they can apply for asylum in the United States. Trump’s first-safe-country policy matches international rules, but it is strongly opposed by elitist pro-migration groups, including the ACLU which has sued to block the reform because it would prevent most of the economic migrants from moving into blue-collar Americans’ jobs, neighborhoods, and schools.

The judge announced Monday that he was extending his blocking rules from his California region to aid the migrants who reach the border at Texas and New Mexico.

Administration officials expect to appeal the judge’s national rule quickly, and then appeal the likely rejection by the pro-migration judges in the Ninth Circuit. Administration officials expect most of their policies to be blocked by Democratic-nominated judges and have adopted a policy of quickly pushing legal fights up to the Supreme Court.

“This is … ahem … unfortunate,” said a tweet from Ken Cuccinelli, the acting director of the U.S. Citizenship and Immigration Services agency. “And if you read the opinion you will notice an extraordinary concern for the [pro-migration] organizations – who are not the people affected (except that it’s their bu$ine$$ to work the issue).”

Officials are also pushing back against the national claim by U.S. District Judge Jon Tigar, based in Oakland, California. The same claim has been made by many other local judges opposed to Trump’s national immigration reforms.

Attorney General William Barr slammed the local judges’ claims to national authority in a September 5 article in the Wall Street Journal:

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.

Nationwide injunctions are also inconsistent with the mechanism the law recognizes to provide relief to nonparties: a class action, in which class members are bound by the result, win or lose, unless they opt out. Nationwide injunctions, by contrast, create an unfair, one-way system in which the democratically accountable government must fend off case after case to put its policy into effect, while those challenging the policy need only find a single sympathetic judge.

…

Nationwide injunctions “are legally and historically dubious,” noted Justice Clarence Thomas, concurring in Trump v. Hawaii (2018). “If federal courts continue to issue them, this Court is dutybound to adjudicate their authority to do so.” It is indeed well past time for our judiciary to re-examine a practice that embitters the political life of the nation, flouts constitutional principles, and stultifies sound judicial administration, all at the cost of public confidence in our institutions.

The ACLU’s top lawyer, Lee Gelernt, touted the judge’s claim, saying, “Court in Ca[lifornia] in our case just reinstated nationwide injunction of asylum ban 2.0. Will save lives.”

In fact, hundreds of migrants — old and young –have died, and many more have been raped or swindled, as they try to migrate into the United States, partly because the ACLU is opening up holes in the national border laws.

The case is East Bay Sanctuary Covenant, et al., Plaintiffs, v. William Barr, et al., Defendants. The case No. 19-cv-04073-JST.

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