Chief Justice John Roberts Joins the Liberals to Block Trump Asylum Restriction in 5–4 Decision

slate ^ | 21 Dec. 2018 | Mark Joseph Stern

[DesScorp]

On Friday, Chief Justice John Roberts joined the liberal justices in a 5–4 decision to maintain the block on President Donald Trump’s new restrictions on asylum.

Trump issued a proclamation in November prohibiting refugees from seeking asylum if they entered the United States without authorization. U.S. District Judge Jon S. Tigar swiftly halted the policy, prompting Trump to dismiss him as an “Obama judge.” Chief Justice John Roberts then issued a rare rejoinder, telling the AP: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Then, on Dec. 10, the 9th U.S. Circuit Court of Appeals upheld Tigar’s nationwide freeze on the new rule. In an opinion written by the conservative Judge Jay Bybee, a Bush appointee, the court explained that a federal statute expressly guarantees immigrants the right to apply for asylum—whether or not they come into the country lawfully. Indeed, the law was meant to implement a treaty which the U.S. had ratified that directed signatories not to “impose penalties [on refugees] on account of their illegal entry or presence.” Trump, the court held, cannot revoke Congress’ decision to extend asylum rights to unauthorized immigrants.

[BillyBoy]

Gosh, I was told over and over again that a judge's personal beliefs don't matter one bit, all that matters is if the White House markets their "judicial philosophy" as "strict constructionist" or "originalist" or whatever they want to call it these days, and that will magically ensure they will ALWAYS vote the right way for the rest of the career on the bench.

[timestax]

John Roberts joined the liberal justices in a 5–4 decision to maintain the block on President Donald Trump...

This

[timestax]

Time to pull out those adoption records.

YES

[BillyBoy]

>> As predicted, John Roberts has moved into the all-important Anthony Kennedy squishy swing vote slot. <<

I've said it before and I'll said it again: The Roberts court has far more in common with the Burger era court ("conservative Republican" majority on paper, but upholds and expands all the previous "landmark" liberal precedents like abortion-on-demand and gay marriage), than it does the Rehnquist era court.

Roberts is also similar to Warren Burger himself: he is part of the "conservative bloc" on paper and usually votes the "right way", but he is no conservative leader and does not sway anyone to his side, and he can easily be convinced to join the left. Bush should have stuck with his original plan to replace O'Connor with Roberts instead of making Roberts CJ (Roberts is slightly to O'Connor's right and would have been an "upgrade")

I'll also stand by my comment that if there was a vote today to overturn Roe, it would be 6-3 to keep it on the books, (with Thomas, Alito, and the center-right Roberts voting the right way, and BOTH Trump appointees voting to keep Roe, though they'd publish a concurrence and use different reasoning than the RAT appointed judges.)

[dajeeps]

Before taking out the figurative “hatchet” I did some digging through this to see if I can understand what’s going on here.

In the proclamation that Trump signed, it says that aliens entering the US unlawfully through the southern border, rather than though a port of entry, will be ineligible to be granted asylum pursuant to a regulation promulgated by the Attorney General and Secretary of Homeland Security, but may be eligible for other forms of protection from prosecution and torture if they enter through a port of entry.

INA Paragraph 1:
Sec. 208. (a) Authority to Apply for Asylum.-
(1) In general. - Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).
Paragraph 2(C)
(C) Additional limitations. - The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).

The court decision says, among other things:
“… Examining the validity of the rule, the panel concluded that the Rule is not likely to be found in accordance with 8 U.S.C. §1158(a)(1).That section provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival...), irrespective of such alien’s status, may apply for asylum in accordance with this section.”
“The panel noted that, rather than restricting who may apply for asylum, the rule of decision facially conditions only who is eligible to receive asylum. The panel observed that 8 U.S.C. § 1158(b)(2)(C) grants the Attorney General the power to set “additional limitations and conditions” beyond those listed in §1158(b)(2)(A) on when an alien will be “ineligible for asylum,” but only when “consistent” with the section. Despite his facial invocation of § 1158(b)(2)(C), the panel concluded that the Attorney General’s rule of decision is inconsistent with § 1158(a)(1), explaining that it is the hollowest of rights that an alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if another rule makes her categorically ineligible for asylum based on precisely that fact…”

I think what happened here is that Trump’s order rendered people who crossed the border illegally ineligible to be granted asylum – period – even if they subsequently went to a port of entry to apply, which probably isn’t consistent with 8 U.S.C. §1158(a)(1), and the courts tagged him on it.

I’m not here to defend Roberts even if it appears that way. But it is important to be aware of and address where the real problem lies; and it appears, to me at least, that the law providing for an asylum claim with very few limitations is somewhat problematic and is causing the chaos down south. I would guess that if illegal immigration is a real problem in your mind, the reason people can come here, however it is they come, and end up sticking around is right here in 8 U.S.C. §1158(a)(1).