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9th Circuit Does It Again!

The 9th Circuit tends to embitter the right, but every so often they issue a surprisingly reasonable ruling.

The Trump Administration developed a policy that required some asylum seekers to remain in Mexico while their claims are processed.  A judge in federal district court ruled that this policy was likely impermissible. 

According to Politico,

“A San Francisco-based district court judge first blocked the “remain in Mexico” policy in April. The judge said the initiative, formally known as the “Migrant Protection Protocols,” likely violated federal regulatory law. The Trump administration appealed the case to the 9th Circuit, which allowed the policy to be implemented immediately while it considered the issue.”

So this is where we are at now.  The 9th Circuit has permitted the policy to continue, rejecting the injunction imposed by the lower court.

NBC says this,

 “A federal appeals court ruled Tuesday that the Trump administration can make asylum seekers wait in Mexico for immigration court hearings while the policy is challenged in court, handing the president a major victory, even if it proves only temporary.”

The Washington Examiner adds,

“The judges approved the policy in part due to Mexico’s commitment to ensure the safety of the asylum-seekers. “We are hesitant to disturb this compromise amid ongoing diplomatic negotiations between the [United] States and Mexico because … the preliminary injunction (at least in its present form) is unlikely to be sustained on appeal.”

The Examiner article also includes a screenshot of a relevant portion of text from the ruling that says “Public interest favors the efficient administration of immigration laws at the border.”

This statement is quite illuminating when we consider that the initial injunction seems to have been issued on a whim from the district court.

A month ago, CBS accurately describe how the district court decision would be perceived. “Seeborg’s order on Monday will likely further incense Mr. Trump, who has repeatedly accused U.S. immigration laws and judicial rulings of hampering his agenda.”

I see two things at work here.

1: The 9th Circuit is actually concerned about a lower court judge issuing a decision on mere likelihood.  The claim that the policy likely violated the APA (anything can violate the APA if you look at it a certain way) is a poor justification for changing national policy.  The APA has been a snare for basically any policy Trump wished to change from the previous administration.  It has turned into a wholly unacceptable use of judicial power.  Legitimate executive power is being constrained by arbitrary decisions that claim that the executive power is being arbitrary.  The judicial application of the APA can be exceedingly stupid. Imagine this scenario:  Truman plans on nuking Japan because his judgment as Commander-In-Chief (Article II power) leads him to that decision.  Now a federal judge in San Francisco says that Truman’s decision is arbitrary and capricious because he didn’t consider the benefit of a land invasion to the degree that would satisfy the judge.  The judge then issues a nationwide injunction on the use of nuclear weapons, despite a congressional declaration of war and the president’s Article II power.  The 9th circuit might actually be concerned about the legal precedent of allowing this type of judicial reasoning to guide policy.

2:  The second possibility is that the 9th circuit doesn’t disagree with the district judge, it’s just that they cannot permit the judiciary to be perceived in this manner.  Much like how some have accused Chief Justice Roberts of making decisions in the interest of preserving the image of the court, the 9th circuit may be painfully aware of how the public and the other branches of government perceive it.  It may take permitting a policy that is disagreeable to liberal sensibilities for their image to be restored.

In either case, the temporary win for the Trump Administration is just that, temporary.  The courts will still have to decide whether the issues is permissible or not and I think that the Trump Administration will ultimately win any legal challenge for the simple fact that the executive is duly afforded leeway in immigration law enforcement.


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