Justice by Injunction? Recent Court Decisions
The Ninth Circuit Court of Appeals and the Supreme Court have recently issued decisions in two cases that impact current immigration practices and controversial policies of the Trump administration. The government’s authority to return asylum applicants to the contiguous territory and the authority to reprogram funds allocated to the Department of Defense by Congress will now be resolved by the judicial branch.
In Innovation Law Lab v. McAleenanInnovation Law Lab c. McAleenan, 924 F.3d 503 (9th Cir. 2019), the court granted a stay to the preliminary injunction issued by the lower court enjoining the federal government from implementing the Department of Homeland Security’s Migrant Protection Protocols (MPP). The MPP directs the return of asylum applicants who arrive from Mexico where they must wait for an immigration judge to decide the merits of their asylum claim.
Previously, the practice was to allow immigrants seeking asylum who passed an initial “credible fear interview” to be paroled or detained inside the United States while an immigration judge decided their asylum claims. The court explained that the Department of Homeland Security (DHS) is likely to succeed on the merits of the appeal because the DHS most likely has a statutory basis to issue the MPP which does not violate the Administrative Procedure Act. After interpreting the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), the court stated that the statute allows the government to return applicants placed in regular removal proceedings to the contiguous territory where they came from even after a positive credible fear interview until a decision is rendered on their asylum claim.
The dissenting judge disagreed with the court’s interpretation, explaining that the IIRIRA of 1996 does not permit the government to return an asylum seeker, one who has a positive credible fear interview and has been placed in removal proceedings, to the contiguous territory. The judge expressed his regret that such a decision was issued and stated that he is hopeful that the regular argument panel hearing the appeal will realize that the arguments put forth by the government are baseless and the MPP is an illegal policy that will require immigrants with valid claims of asylum to wait in Mexico for many years until their application is decided by an immigration judge.
This unfortunate decision will allow the Trump administration to remove thousands of asylum seekers in a streamlined manner without the benefit of having a judge hear their claims. An immigration officer, acting as both prosecutor and judge, will now make the decision to return the applicant to the contiguous territory. Moreover, this practice will curtail asylum applicants’ ability and right to have representation by a competent attorney. The asylum seekers will be in a foreign country with a greater obstacle to retain a legal representative to guide them through the process of finding a safe haven, and ultimately legal status, in this country.
In Sierra Club v. TrumpSierra Club v. Trump, 2019 WL 2865491 – citation currently unavailable., the federal court temporarily blocked the Trump administration’s attempts to reallocate billions of dollars from the Department of Defense (DoD) budget to build a wall in the southern border. President Trump, after only receiving $1.571 billion dollars of the $5.7 billion dollars he requested to build a steel wall, declared a national emergency at the southern border and said that his administration could secure additional resources to build the wall from other sources in the DoD budget. Immediately after proclaiming the national emergency, the executive branch commenced to allocate those funds to build the southern wall. The Sierra Club, along with Southern Border Communities Coalition, filed a lawsuit alleging that the President abused his executive powers by spending money in excess of what Congress specifically allocated for border security; by not complying with the National Environmental Policy Act; and by acting without authority to divert funds. The Sierra Club and the Southern Border Communities Coalition filed a motion for a preliminary injunction, requesting the district court to enjoin the reprograming of funds to build a wall in certain areas of the southern border. The plaintiffs alleged that as a private party they have standing to enforce Congress’ appropriation power, and that the building of the wall will injure their members because of noise, visual blight, and negative ecological effects. Once building commences, the parties will suffer an irreparable harm. The government, on the other hand, reasoned that if the injunction is not stayed, the government is the one that will suffer irreparable harm, since the government has to finalize any contracts with builders by September 30, 2019 before the funds are returned to the Treasury.
The Ninth Circuit Court of Appeals upheld the injunction and the government filed an emergency appeal with the Supreme Court requesting that a stay be issued. On Friday July 26, 2019, the Supreme CourtTrump v. Sierra Club, 588 U.S. _____ (2019) – citation currently unavailable, in a 5-4 decision, stayed the injunction and temporarily allowed President Trump to allocate 2.5 billion dollars from the Department of Defense budget to commence construction of the wall. The Supreme Court’s principal rationale for staying the injunction is that the government has made a sufficient showing that the plaintiffs have no cause of action at this stage to request a review of the government’s reprogramming authority.
Now that the injunction has been stayed, President Trump may be able to start erecting 100 miles of steel wall along existing border fences. While reactions in Congress may remain primarily along partisan lines, a greater concern may well be whether the doctrine of separation of powers is being undermined, and what that means for the future of this country.
Innovation Law Lab c. McAleenan, 924 F.3d 503 (9th Cir. 2019)
Sierra Club v. Trump, 2019 WL 2865491 – citation currently unavailable.