The Supreme Court would prefer not to

You may have heard yesterday that the Trump administration “suffered a defeat in the Supreme Court” or words to that effect, with Chief Justice Roberts joining the devout leftists to cast the deciding vote. Mark Sherman’s AP story leads: “A divided Supreme Court won’t let the Trump administration begin enforcing a ban on asylum for any immigrants who illegally cross the U.S.-Mexico border.” Adam Liptak’s New York Times story leads: “The Supreme Court refused on Friday to allow the Trump administration to immediately enforce its new policy of denying asylum to migrants who illegally cross the Mexican border.”

What happened?

The Supreme Court entered an order in Trump v. East Bay Sanctuary Covenant. The order provides: “The application for stay presented to Justice Kagan and by her referred to the Court is denied. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application for stay.” I have embedded a copy of the order below via PDF.

What’s it all about?

The Supreme Court’s docket in the case is accessible online here. The case contests the legality of the Trump administration’s rule requiring applications for asylum to be presented at designated ports of entry. San Francisco Judge Jon Tigar has entered a temporary restraining order and, most recently, a preliminary injunction preventing the Trump administration from enforcing its rule.

Judge Tigar’s order is one of the series of nationwide injunctions entered by the judicial branch of the #Resistance to the Trump administration. Courts in the Ninth Circuit have proved a prolific source of such orders. (The Ninth Circuit treated Judge Tigar’s temporary restraining order as a preliminary injunction. This week Judge Tigar formally entered an order granting a preliminary injunction. See Solicitor General Noel Francisco’s December 20 letter to the Supreme Court.)

The general rule in federal cases is that non-final orders cannot be appealed. Federal law makes an exception for grants of injunctive relief. The Trump administration filed an emergency motion for a stay pending appeal of Judge Tigar’s order in the Ninth Circuit.

The Ninth Circuit docket in the case includes links to the filings of the parties. The Trump administration’s application for stay and reply in support of application for a stay provide useful background on the case.

The Trump administration moved for an emergency stay of Judge Tigar’s order in the Ninth Circuit opinion. With one judge dissenting, a three-judge panel of the Ninth Circuit upheld Judge Tigar’s grant of preliminary relief in a 65-page opinion. The court correctly stresses “that this case arrives at our doorstep at a very preliminary stage of the proceedings.” Judge Tigar hasn’t ruled on the merits or entered final judgment granting injunctive relief, but it’s no secret where he’s going.

Having struck out in the Ninth Circuit, the Trump administration promptly sought a stay from the Supreme Court. The Supreme Court has ample grounds for avoiding the case at this point for reasons having little or nothing to do with the merits. It is no surprise that the Supreme Court refused to grant a stay at this early stage of the case; the district court hasn’t even entered a final order. The Ninth Circuit ruling addresses the question whether the district court’s preliminary injunction should be stayed pending appeal of the injunction to the Ninth Circuit.

As you can see, the Supreme Court order says precisely nothing on the merits of the Trump administration’s rule on asylum. This is an overstatement, but not by much. The denial could be based on a pure exercise of discretion not to hear a case at this early stage. The denial is at several removes from the merits. It is hazardous to draw inferences from nothing.

Nevertheless, four justices (Thomas, Alito, Gorsuch and Kavanaugh) “would grant the application for stay.” Although no inferences can properly be drawn from the Supreme Court’s denial of a stay pending appeal (in the Ninth Circuit, from the district court order granting a preliminary injunction), that is striking. Inferences can properly be drawn from this part of the order. I infer the four justices understand that the judicial #Resistance poses a grave threat to the rule of law.

What about Chief Justice Roberts?

He joined Justices Breyer, Ginsburg, Sotomayor and Kagan to deny the stay. I say no inferences can properly be drawn from the order denying the stay, but I will go this far. Adam Liptak is not out of line in reviewing the chief’s jousting with President Trump; the jousting was occasioned by this case. President Trump does not believe that discretion is ever the better part of valor.

The proliferation of nationwide injunctions issued by federal courts has hampered the Trump administration’s efforts to address the continuing crisis at our southern border. The Ninth Circuit order itself acknowledges the crisis at page 52 of the slip opinion: “We are acutely aware of the crisis in the enforcement of our immigration laws.” The Ninth Circuit blames Congress, but the courts of the Ninth Circuit have themselves contributed to the crisis.

The crisis continues. It has become situation normal. We need an intervention that is unlikely to take place any time soon.

Trump Ve Bay Sanctuary by on Scribd

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