It is perhaps coincidental but still especially sad that on a hallowed date, September 11th, the Supreme Court failed us.
It granted a stay of a lower court’s preliminary injunction which enjoined a new rule that gutted long-standing protections for immigrants. The preliminary injunction from the district judge stopped the new proposed rule affecting thousands of asylum seekers and that will be implemented to bar them from eligibility.
As correctly characterized in Justice Sotomayor’s dissenting opinion, and joined by Justice Ginsburg, “the [government’s new] rule forbids almost all Central Americans-even unaccompanied children- to apply for asylum in the United States...unless they were first denied asylum in Mexico or another country.” This has never been the rule and represents an enormous departure from all prior understanding of the law regarding “firm resettlement” and “safe-third countries.”
A few observations about the Supreme Court’s September 11th order can be made.
First, this is a far more troubling development than may at first blush be appreciated.
If the Supreme Court was designed by our Founders as the last bulwark to protect against governmental violations of rights, what does it say about the threat to all of us? How will the government be enjoined in the future when these “new rules” are promulgated without notice and comment?
What happens when the government next moves to eviscerate protections for U.S. citizens, or lawful permanent residents or birthright children, as has been threatened, who are born to undocumented parents?
Second, where were Justices Breyer and Kagan? It is hard to fathom that these two justices would be sympathetic to the government’s arguments that the Trump Administration be allowed to proceed with its draconian and illegal rules in violation of the Immigration and Nationality Act (INA), APA, and other legal protections.
We do not know exactly whether these two more liberal Justice sided with the more conservative Justices in granting the government’s stay permitting the violations which will now ensue.
Because the majority did not provide any reasoning whatever we do not know how they could have found the government’s arguments convincing. (It should be noted there is no record of the votes of the individual justices who joined the majority in this decision on the stay application.)
It appears, however, that they may have been persuaded by an argument made in the government’s application relating to so-called “dueling injunctions.”
It is possible that the tacit reasoning of the Supreme Court’s majority was premised at least in part on the implied rejection of the “nationwide” or "universal" injunction by the district court. (Remember that in Trump v. Hawaii, Justice Thomas opined on the supposed illegality of nationwide injunctions).
In the government’s application for stay, they make much of the fact that the “universal” or nationwide injunction was especially problematic since “a few hours earlier, another district court entertaining a challenge to the rule had sided with the government and had refused to award any preliminary relief (nationwide or otherwise) against the rule.”
Given the procedural problem presented by “dueling injunctions” Justices Breyer and Kagan may have been persuaded to join the majority or not voice their dissent because of their distaste for a nationwide or universal injunction.
The Supreme Court majority apparently did not accept that the court of appeals had correctly rejected the nationwide injunction and remedied any defect by limiting it geographically to just the Ninth Circuit.
In granting the stay, the majority (a) must have been persuaded that the nationwide injunction by the district judge was not appropriate and (b) must have believed that the Ninth Circuit’s limiting order was insufficient to remedy any defect in the district court’s preliminary injunction.
Assuming for the sake of argument that Justices Breyer and Kagan were not persuaded by any substantive reasons that the government was correct in their proposed new rule, then it is possible that the procedural problems with a nationwide injunction they may have discerned were enough to support their decision to possibly join the majority in granting the stay.
It is true that the Ninth Circuit's limiting order and rejection of a nationwide stay is puzzling from the other perspective. To limit asylum protections just to the Ninth Circuit would seem to fly in the face of the whole point of due process and equal protection which applies to all in the U.S. whether in the California, Texas, or Florida or wherever they may be found. Moreover, many decisions have emphasized the nationwide (federal) nature of immigration enforcement and the application of immigration laws, often to the chagrin of states who have at times desired to take matters into their own hands but been reined in by the Supreme Court.
So, Justices Breyer and Kagan may have been troubled by the nationwide stay and, in any event, may have reasoned that if they joined with the dissenters there still would have been a majority (5-4) in favor of the stay.
But, that is no reason not to join with Justice Sotomayor and her well-written dissent.
At least four Justices would have gone on the record against the substantive problems and infirmities of the government proposed rule. Although the nationwide stay presents a logical problem because there are now two district courts below who are in apparent disagreement, that does not mean ipso facto that the Supreme Court could not have resolved the dispute. Isn't what the Supreme Court is for?
The Supreme Court has embarked on a very dangerous journey here. It has failed us because of what this decision will mean (at least for the time being since it is not a final ruling) for immigrants: that many if not most of the asylum cases going forward in the removal system will be doomed from their inception.
It has failed us for a further and more important reason: because of what this decision may mean for the future; allowing a government's new rule to be implemented immediately without restrictions and in violation of our Constitution and other legal protections. It does not do justice to September 11 and what that date should mean to us all.