On Friday, Chief Justice John Roberts sided with the four liberal justices of the Supreme Court once again as they ruled against the Trump administration’s request for permission to immediately deny asylum to illegal immigrants.
In the case, titled Trump v. East Bay Sanctuary, Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh voted for the Trump administration; Roberts joined justices Steven Breyer, Elena Kagan, Ruth Bader Ginsburg and Sonia Sotomayor to deny the Trump administration’s request.
Initially, Judge Jon S. Tigar of the United States District Court in San Francisco issued a temporary restraining order blocking Trump’s initiative nationwide. That prompted Trump, noting that Tigar had been appointed by former President Barack Obama, to blast Tigar as an “Obama judge.” Chief Justice Roberts then fired at Trump:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
Trump almost immediately fired back, stating, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
On December 7, a panel of the U.S. Court of Appeals for the 9th Circuit ruled 2-1 to uphold a lower court decision that prevented the Trump administration from implementing its preferred policy of denying asylum to illegal immigrants. Circuit Judge Jay S. Bybee wrote in the decision, ““Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office.”
We recognize that, theoretically, an announcement of a proposed rule “creates an incentive” for those affected to act “prior to a final administrative determination.” … But in this case, the Rule, standing alone, does not change eligibility for asylum for any alien seeking to enter the United States; that change is not effected until the Rule is combined with a presidential proclamation.
Thus, we would need to accept the Government’s contention that the “very announcement” of the Rule itself would give aliens a reason to “surge” across the southern border in numbers greater than is currently the case. Absent additional evidence, this inference is too difficult to credit. Indeed, even the Government admits that it cannot “determine how . . . entry proclamations involving the southern border could affect the decision calculus for various categories of aliens planning to enter.” Because the Government’s reasoning is only speculative at this juncture, we conclude that the district court’s holding is correct.
Before the justices issued their ruling, Solicitor General Noel J. Francisco stated that Trump’s announcement of his intended policy was to “address an ongoing crisis at the southern border, with significant implications for ongoing diplomatic negotiations and foreign relations.”
Although the federal statue states that an asylum application must be accepted from any illegal immigrant “physically present in the United States or who arrives in the United States whether or not at a designated port of arrival … irrespective of such alien’s status,” the Trump administration countered that illegal immigrants could ask for asylum, but the fact that they had crossed into the country illegally was reason enough to deny them asylum.