Attorneys General have a lot of responsibilities--beyond the Russia Hoax. One thing that's been on Bill Barr's mind--as well as on the mind of the SCOTUS--is the increasing propensity of lower federal courts to serve as the enforcement branch of the Resistance. This has taken the form of lower courts issuing nationwide injunctions against valid exercises of executive authority. As I've stressed, Bill Barr is all about guarding executive authority. And this evening he got the SCOTUS to slap the 9th Circuit good and hard, issuing a stay on the enforcement of two lower court preliminary injunctions against President Trump's new asylum policies.
Zerohedge provides the background:
San Francisco Federal Judge Jon Tigar issued a preliminary injunction in July blocking the policy after a coalition of migrant and civil rights groups represented by the American Civil Liberties Union challenged the rules in court, while the 9th US Circuit Court of Appeals narrowed Tigar's injunction - relegating it to within the 9th Circuit's jurisdiction. According to the Daily Wire's Kevin Daley, "That meant that the third-country transit bar could be applied to migrants intercepted in New Mexico or Texas, but not Arizona and California," adding that "the 9th Circuit also said Tigar could reimpose a nationwide injunction if he made additional factual findings supporting such a move. Tigar did so and restored a nationwide injunction against the contested rule Monday."
So, in other words:
- Jon Tigar, a District Court Obama appointee--one of those "Obama judges" that John Roberts says don't exist--enjoined (blocked) Trump's policy all across the fruited plain.
- The 9th Circuit narrowed that injunction--but only temporarily. They asked Tigar to reconsider his fact findings.
- Tigar reconsidered and, predictably, came to the same conclusion--he reinstated his nationwide injunction.
- Barr sent his Solicitor General to the SCOTUS this afternoon and requested a stay, which was granted.
Presumably the SCOTUS will grant DoJ's petition for a writ of certiorari and will then consider this whole business of district court judges attempting to rule the country by judicial fiat.
UPDATE: Sotomayor and Ginsburg dissented:
Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from the high-court’s order. “Once again, the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution,” Sotomayor wrote.
And is there a problem with the Executive Branch upending longstanding practices? Or is that an exclusive prerogative of the Judicial Branch?
Sotomayor goes on to claim that a stay pending appeal should be an "extraordinary" measure. She doesn't address the question of whether the now routine issuance of nationwide injunctions by single District Court judges on policy grounds should be extraordinary. That is clearly the reason for this step that the SCOTUS has taken. The abuse of the injunction power itself "risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency"--a development that Sotomayor claims to decry.
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