Brief in Recess: September 11

Earlier this summer, the Supreme Court stayed an injunction against the Trump Administration, which had barred it from using nearly $2.5 billion in interdepartmental transfer funds for construction of the border wall. Tonight was Part II. The high court lifted another injunction that had been issued against the Administration, this one concerning the latest asylum rule promulgated in July. Justices Sotomayor and Ginsburg dissented. With less than a month until the Court is back in session, it seems clear the Justices are not shy of acting on their summer shadow docket. Here’s a summary of the case, the Court’s order, and Justice Sotomayor’s dissent.


Suppose that John Doe is a citizen of Country A, which borders the United States, and that Country A is persecuting him. Next, suppose John chooses to flee Country A and seek refuge from his persecution in the United States. This principle is known as “asylum,” and it is a right of aliens recognized by the United States under international and federal law.

Under the 1965 Immigration and Nationality Act (INA), asylum in the United States is a form of “discretionary relief”—that is, there are circumstances in which an alien may be granted asylum and circumstances in which an alien may not. The INA lays out the requirements an alien must meet to obtain asylum, as well as circumstances in which an alien may be barred from obtaining asylum.

What is critically relevant to this case is a clause that clarifies the powers of the U.S. Attorney General under the INA: The Attorney General “may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum” (8 U.S.C. § 1158(b)(2)(C)). On July 16, 2019, the U.S. Department of Justice (DOJ)—which the Attorney General superintends—along with the Department of Homeland Security invoked §1158(b)(2)(C) and issued a new, nationwide rule placing an additional limit on an alien’s ability to obtain asylum. Specifically, the rule denies asylum to certain aliens who, before applying for asylum in the U.S., traveled through another country in which the alien was eligible for asylum but did not apply. In other words, suppose our John Doe flees Country A, travels through Country B (in which he was eligible for asylum but chose not to apply), and then arrives in the United States where he applies for asylum. Here, the new rule would bar John from obtaining asylum. As Solicitor General Noel Francisco put it in a filing before the Supreme Court, the rule “screens out asylum seekers who decline[] to request protection at the first opportunity.”

On July 24, a federal district court in California issued a preliminary, nationwide injunction against the Trump administration (“Administration”) from enforcing the rule. Noting that the rule is “likely invalid because it is inconsistent with . . . existing asylum laws,” the district court barred the Administration from enforcing the rule until it could decide whether the rule as a whole was in fact legal—a significant blow to the Administration.

The Administration then petitioned the Ninth Circuit Court of Appeals to stay the injunction. On August 16, the Ninth Circuit handed the Administration a partial victory: until the district court issues its decision, the Administration could enforce the rule anywhere not subject to the Ninth Circuit’s jurisdiction (i.e., all states except Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon, and Washington). The partial victory didn’t last long, however. On September 9 (yes, this past Monday), the district court reimposed the nationwide injunction after considering additional briefing on the matter—in effect, cancelling the Administration’s month-long, successful trip to the Ninth Circuit.

Enter the Supreme Court.

Yesterday, the Administration went directly to the nine Justices, asking them to stay the second iteration of the district court’s nationwide injunction. The Administration stressed that the rule was a lawful exercise of the Attorney General’s broad, discretionary authority under the INA and that a nationwide injunction imposes “direct and irreparable injury to the interests of the government and the public.”

Earlier this evening, at least five of the nine Justices voted to grant the Administration’s petition and stay the district court’s nationwide injunction, at least until the district court issues its decision on the rule’s legality in general. Therefore, the Administration’s latest asylum rule will go into effect nationwide while the litigation proceeds in the district court. If the district court decides that the rule violates federal law, it is free to impose a new injunction—nationwide or localized. (Of course, given such a result, the Administration is likely to appeal both the disposition and the injunction to the Ninth Circuit.) If the district court determines that the rule does not violate federal law, the rule remains in effect and the Administration is off the hook, absent an appeal from the other side.

Justice Sotomayor, who was joined by Justice Ginsburg, wrote a five-page opinion dissenting from the grant of stay. Sotomayor would have let the nationwide injunction remain in effect against the rule, which she characterizes as “seek[ing] to upend longstanding practices regarding refugees who seek shelter from persecution.”

Much of Sotomayor’s dissent focuses on a common requirement for federal rule-making or rule-changing: notice and comment under the Administrative Procedure Act (APA) (5 U.S.C. § 553 et seq.). In most cases, if a federal agency wishes to implement a new rule—like the DOJ’s new asylum rule at issue here—the APA requires that agency to notify the public of the proposed rule (§553(b)) and to give the public time to comment on the proposed rule (§553(c)), where the public provides suggestions, raises concerns, and the like. It should be noted that the notice-and-comment requirement does not apply to a new rule if it involves “a military or foreign affairs function of the United States” (§553(a)(1)).

Sotomayor argues that when the DOJ promulgated this latest asylum rule—a “sea change in immigration law”—the Administration did not meet the APA’s notice-and-comment proviso. Specifically, while the rule was published in the Federal Register (a form of public notification), the DOJ never allowed the general public to comment on the proposed rule. The district court, when it issued its nationwide injunction the first time around, hit hard on this point, dismissing the government’s contention that the rule was of a “foreign affairs” nature and thus exempt from notice-and-comment under §553(a)(1).

Sotomayor also notes that a petition to stay an injunction while litigation is ongoing is a type of “extraordinary” relief, and carries with it an “especially heavy” burden. “Given the District Court’s thorough analysis, and the serious questions [it] raised” about the merits of the Administration’s arguments, Sotomayor finds it unlikely that the Administration met that especially heavy burden required to grant relief. She also suggests that the rule may be in “significant tension” with federal asylum laws and that it may be arbitrary and capricious for “failing to engage with the record evidence contradicting its conclusions.”

For these reasons, Sotomayor (and Ginsburg) would have left the nationwide injunction in place, which would have barred the Administration from enforcing the rule pending the disposition of the district court’s ruling. What’s left now is just that—when the district court will issue its decision on the legality of the rule as a whole, and what that decision will say. Once that ruling comes, we can expect more appeals from either the Administration or the respondents, depending on the disposition.

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