I fear another angry tweet about “Obama judges” is in our future. Richard Seeborg, the district-court judge behind this ruling, was appointed by O in 2010.
Remember Trump’s “return to Mexico” policy? The White House put that in place as a partial solution to America’s catch-and-release problem. Instead of admitting asylum applicants, setting them free to roam America while their cases work through the system, and simply hoping that they show up for their hearing, the administration made a deal with Mexico to have applicants wait on the other side of the border. That way, if their claim is denied, they’re Mexico’s problem.
Can’t do it said Seeborg this afternoon, issuing a preliminary injunction of the policy. He made a point of saying, though, that his decision has nothing to do with whether the policy is good or bad. Rather, this is a statutory issue that could be solved quickly by Congress if it chooses:
The key statute is section (b) of 8 U.S.C. 1225. Subsection (b)(1) authorizes expedited removal of any asylum applicant who’s without valid documentation or otherwise guilty of misrepresentation. Those people can be booted out without an asylum hearing, although they’re entitled to an appeal before an immigration judge of the determination of misrepresentation. Subsection (b)(2) applies to all other applicants, i.e. applicants who aren’t suspected of some sort of fraud. Those people are entitled to an asylum hearing but they can be removed to a contiguous country (read: Mexico) while their hearing is pending. If I’m reading — well, skimming — Seeborg correctly, his point is simply that groups one and two are mutually exclusive under the plain language of the statute. The only people who can be warehoused in Mexico while awaiting a hearing are those in group two, the potentially meritorious applicants. Those subject to expedited removal can’t be. If Trump doesn’t like that, all he needs to do is get Congress to tweak the statute so that everyone can be warehoused across the border. Good luck with that now that the House is in Democratic hands.
But if Congress does act, Seeborg adds, they also need to provide some procedural safeguards to make sure that sending an asylum applicant to a contiguous country (again, Mexico) wouldn’t place them in danger. The U.S. isn’t allowed to do that under a UN convention on refugees it adopted.
The White House will appeal, of course. The court that’ll hear that appeal is the Ninth Circuit. So, as usual, SCOTUS is his only hope.
…Although maybe he has something more drastic in mind this time. CNN has a juicy story this afternoon about Trump once again being torn between his instincts and what’s legal/sane. He was gung ho to shut the port of El Paso, CNN claims, until Kirstjen Nielsen and Mick Mulvaney convinced him that blowing up commerce from Mexico would be a political disaster and asylum seekers would just start crossing the border illegally instead. He also pushed to bring back family separation, even for families legally seeking asylum, while Nielsen tried to convince him that they’d run into court roadblocks and endure another nasty public backlash. “At the end of the day, the President refuses to understand that the Department of Homeland Security is constrained by the laws,” said a “senior administration official” to CNN who may or may not be Nielsen. I think he views family separation the same way he views enhanced interrogation of terrorists: Although there are substantive reasons for each policy, he views them as deterrents. The rougher you can be with the people causing you a problem, the fewer problems they’ll cause.
But here’s the noteworthy part. It’s not often you hear of the commander-in-chief explicitly ordering deputies to defy court rulings, yet here we are:
Last Friday, the President visited Calexico, California, where he said, “We’re full, our system’s full, our country’s full — can’t come in! Our country is full, what can you do? We can’t handle any more, our country is full. Can’t come in, I’m sorry. It’s very simple.”
Behind the scenes, two sources told CNN, the President told border agents to not let migrants in. Tell them we don’t have the capacity, he said. If judges give you trouble, say, “Sorry, judge, I can’t do it. We don’t have the room.”
After the President left the room, agents sought further advice from their leaders, who told them they were not giving them that direction and if they did what the President said they would take on personal liability. You have to follow the law, they were told.
The temptation is to assume that Trump was half-joking, like that time he was playing to a roomful of cops and tried to ingratiate himself by telling them they should let perps hit their heads on the squad car as they’re loading them into the back seat. But if CNN’s sources are accurate, that doesn’t add up. Border agents wouldn’t have asked their supervisors for guidance if Trump was obviously joking.
Which means we’re all teed up for the following sequence of events: (1) A frustrated Trump openly calls on border officials to start defying court orders; (2) the media freaks out; (3) polls show a public backlash on the order of 30/70 against; (4) Trump backs down under pressure from his advisors and fears of damage to his election chances; (5) a month later he has second thoughts and starts grumbling to his advisors that they’re cucks who should have backed him in his show of strength against the courts; (6) a year later he forgets all of this and calls on border officials to defy court orders again. Rinse, repeat. Nothing would get his friends on SCOTUS’s right side to turn on him like encouraging executive-branch officials to start ignoring court rulings would, so that might be an extra crappy bonus from all this. It’s not like John Roberts would need much encouragement to become reliably anti-Trump, after all.