Attorneys for the Justice Department petitioned the Supreme Court on Tuesday, looking for an order that would stay a pair of lower court decisions that have blocked the White House from carrying out an executive order from the President.
That order, which would eliminate the possibility of an asylum claim from any immigrant who crosses the border into the U.S. illegally, was put on ice by U.S. District Judge Jon Tigar in November. Tigar said that Trump was attempting to rewrite immigration law from the Oval Office and issued a temporary restraining order against the administration. His injunction was upheld by the 9th Circuit Court of Appeals last week in a ruling that surprised no one with a sense of that court’s history.
“Here, the Executive has attempted an end-run around Congress,” wrote Judge Jay Bybee. “In combination with the rule, [the presidential order] does indirectly what the executive cannot do directly: amend the INA. Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the executive legislate from the Oval Office.”
Justice Department lawyers strongly disagreed with that interpretation of the law, however, and asked the Supreme Court to weigh in on the lower court rulings as soon as possible.
“The nationwide injunction is deeply flawed and should be stayed pending appeal and, if necessary, further proceedings in this Court,” wrote the DOJ lawyers.
“The nationwide injunction prohibits the Executive Branch from implementing an interim final rule adopted to address an ongoing crisis at the southern border, with significant implications for ongoing diplomatic negotiations and foreign relations,” argued Solicitor General Noel Francisco.
Supreme Court Justice Elena Kegan confirmed that the court would address the issue by Dec. 17.
In addition to arguing that the president’s position on asylum claims is sound, given the emergency nature of the border crisis, the administration is claiming that the activist groups – including the ACLU – filing suit against Trump lack the standing to do so. They argued to the court that these groups have not suffered any legally cognizable harm as a result of President Trump’s executive order and thus have no right to sue in federal court.
The Supreme Court has, thus far, been the only court in the land to give this president his due power as the chief executive. Every other court seems to believe that there is some special quality about Donald Trump that confers upon him less-than-usual constitutional authority, and they have ruled with that made-up legal basis in mind. So we have some confidence that the court will do the right thing here, although you never know.