The Trump administration on Tuesday formally asked the Supreme Court to block a nationwide ban on the administration’s new asylum policy that was unilaterally instituted by a Ninth Circuit Court of Appeals judge last month.
In a November news conference days before the midterm elections, Trump had vowed to turn away all asylum seekers who attempt to cross the border illegally instead of properly presenting themselves at ports of entry. The president said the emergency policy was necessary as the leading Central American migrant caravan approached the U.S. border with Mexico.
However, U.S. District Judge Jon S. Tigar, who was nominated by President Obama in 2012 to the U.S. District Court for the Northern District of California, issued a temporary restraining order two weeks later that brought a halt to the plan.
Last week, a separate federal appeals court in San Francisco said the ban was inconsistent with federal law and represented an attempted end-run around Congress.
But, the Trump administration said in court papers filed Tuesday that the nationwide order preventing the policy from taking effect “is deeply flawed” and should be lifted pending an appeal that could reach the high court.
Trump’s proclamation was among measures that “are designed to channel asylum seekers to ports of entry, where their claims can be processed in an orderly manner; deter unlawful and dangerous border crossings; and reduce the backlog of meritless asylum claims,” Solicitor General Noel Francisco wrote in his Supreme Court filing.
The core of the Trump administration’s legal argument — which also includes claims that the plaintiffs lack standing to bring challenges to the administration’s policy — is that asylum law does not preclude the White House’s action.
While federal law does state that individuals who arrive in the U.S. “may apply for asylum” regardless of whether they arrive “at a designated point of arrival,” the Trump administration argues, asylum law also makes clear that some people who legally are able to apply for asylum are categorically ineligible to receive it.
“Asylum is a discretionary benefit to which no alien is ever entitled,” the filing stated.
The administration also argued it was involved in “sensitive” negotiations with Mexico concerning border security, and that the courts should stay out of Executive Branch foreign policy negotiations on separation-of-powers grounds.
Lee Gelernt, an American Civil Liberties Union lawyer representing immigrant advocacy groups challenging the asylum policy, said, “The Trump administration is asking the Supreme Court to short-circuit the normal judicial process and reinstate a blatantly unlawful policy.”
Justice Elena Kagan, who handles emergency appeals from California and other western states, called for a response from opponents of the asylum policy by midday Monday.
In the first court ruling on the issue, Tigar said on Nov. 19 that U.S. law allows immigrants to request asylum regardless of whether they entered the country legally.
The president “may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden,” the judge said in his order.
The ruling prompted Trump’s criticism of Tigar as an “Obama judge” and led to an unusual public dispute between Trump and Chief Justice John Roberts, who rebuked the president with a statement defending the judiciary’s independence.
In lengthy and fiery comments to reporters outside the White House just hours after Tigar’s ruling, Trump excoriated the liberal-leaning Ninth Circuit Court of Appeals as a “disgrace.”
The president vowed immediate action and said he was “going to put in a major complaint” about the appellate court, based in San Francisco, without elaborating.
He also broadly criticized the increasingly common practice of individual federal judges bringing unilateral halts to executive branch policy, which already has happened more than two dozen times under the Trump administration. Such nationwide injunctions were virtually unheard of well over a century after America’s founding.
The president specifically cited the Ninth Circuit’s injunction against his ban on travel from several Muslim-majority nations, which ultimately was ruled a constitutional exercise of presidential authority this year by the Supreme Court.
“You go to Ninth Circuit and it’s a disgrace, and I’m going to put in a major complaint. Because you cannot win, if you’re us, a case in the Ninth Circuit,” Trump said. “Every case gets filed in the Ninth Circuit. … We get beaten, and then we end up having to go to the Supreme Court — like the travel ban — and we won. We’re gonna have to look at that.”
He added: “That’s not law. That’s not what this country stands for.”
When pardoning the National Thanksgiving Turkey earlier in the day, Trump joked, “Unfortunately, I cannot guarantee your pardon will not be enjoined by the Ninth Circuit. Always happens.”
The Associated Press contributed to this report.
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