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Political Nature of the Judiciary

The Supreme Court today issued a major decision that can have a major effect on future cases.  In this case the Court put a hold on a lower court’s ruling that the Administration cannot change the policy of granting asylum.  The Trump administration has argued that anyone traveling through Mexico must first seek asylum in Mexico before asking for asylum in the United States.

The opponents of this rule immediately filed suit and went to the Ninth Circuit.  This is the traditionally liberal appellate court.  While most of this activity takes place in the border states and the Fifth Circuit would be the logical place to file such a suit it demonstrates the use of forum shopping by plaintiffs.  The Fifth Circuit is more conservative than the Ninth Circuit.

What the decision today means is simply that pending further legal action the new rule will be in place. Only two Justices, Sotomayer and Ginsburg, objected which means that this ruling could quite possibly have the support of seven of the Justices.  That is not entirely clear, so we do not have a concise view of how Breyer and Kagan felt about the issue.  It is interesting to note that in December the court, by a 5-4 vote, refused to lift the stay that had been issued on the Administration rule.  Today they signaled they are changing their minds.  In December it was Chief Justice Roberts that sided with the four liberals on the Court.  Obviously, he has changed his position and quite possibly two others as well.

The particulars of this case go back to July when the Administration announced the change and immigrant-rights groups immediately sought an injunction.  A federal district judge in California gave them the relief they sought by ruling that the law was invalid and contradicted existing federal law and that it violated the Administrative Procedures Act.  He made it effective nationwide.  The Administration immediately appealed, and this sent it to the Ninth Circuit.  A panel on that court ruled that the lower court’s decision could only be implemented in California and Arizona which are in the Ninth Circuit jurisdiction.  Any other state, like Texas and New Mexico, would not be affected by the ruling.

Opponents immediately went back to the district court and Judge Jon Tigar (Obama appointee) ruled that the block would in fact be nationwide, effectively thumbing his nose at the Ninth Circuit.  This forced the Supreme Court to take action.

I suspect that this decision was more about a larger issue than the one before them.  During the Trump administration there have been numerous legal challenges to actions by the Administration, particularly in the area of illegal immigration, and opponents have sought out judges that will issue favorable rulings and make them apply nationwide.  I believe that the Supreme Court is expressing its dissatisfaction with this trend where one judge makes a decision and tries to implement it for the entire nation.  In a way they have been usurping the role of the Supreme Court.  

If you look at the way our judicial system is being “played” you get and understanding of what might be going through the minds of those on the Supreme Court.  Federal District Judges have been issuing ruling throughout the Trump Administration and making them effective nationwide.  When challenged the activists have immediately made sure that any appeal would head to the Ninth Circuit.  This has traditionally been the most liberal of the Appellate courts and covers a large part of the western half of the country.  Currently it covers the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.  There have been calls for breaking up the Ninth Circuit and creating a new one for about half of the states it currently covers. 

When Trump took office 23 of the 29 judges on the Ninth Circuit had been appointed by Democrats.   Today that number has been reduced to 16 and the Ninth Circuit has become more moderate.  There are 3 vacancies and when filled by the current Administration the numbers will tilt again. This has been met with outrage by Senators Feinstein and Harris since the Administration has abandoned the practice of getting the two California Senators approval on all nominees to the Ninth Circuit.  As you can expect they would only approve judge they felt could be relied upon to issue decisions consistent with their political beliefs. Compare that to the Fifth Circuit which covers Texas, Mississippi and Louisiana. On that Circuit there are 16 judges and 11 have been appointed by Republicans.

So, while you may have differing views on how immigration claims for asylum should be processed it should also be apparent to you that activist groups opposing the Administration go to the Ninth Circuit for a reason.  It should also be apparent to you why the Supreme Court is growing weary of individual federal district judges are trying to hand down decisions favorable to one group and make them apply nationwide.  Whatever your feelings are on this issue you may be outraged when another judge rules on something else and make it apply nationwide.  That is why I believe the Supreme Court is finally taking action.  Not so much on the individual case but on the process that has been evolving.

I would like to express my own views on this individual issue.  If a person is truly seeking asylum and protection, then why not apply in the first country you enter.  The vast majority of this wave of immigrants are coming from Central America and there are many who have entered Mexico from Eastern Europe, Africa and the Middle East with the intent to gain entry to the Untied States.  I suspect that the overwhelming majority are coming to the United States for economic reasons.  They have been coached on what to do when they get here, and they immediately apply for asylum.  Because of the huge numbers they are eventually released and the percentage showing up or their appointed dates with an immigration judge is decreasing.  If they truly thought, they could make a strong case for asylum versus economic migration then they would all come to court. I understand why they would want to migrate to the United States.  They have been told they can find wealth and a better life.  In some cases that is true and in many other cases, they live in poverty and strain local financial resources.  But as a nation we simply cannot just open the door and say to anyone that wants to come in to walk across the border.  And this is not just a southern border issue.  Homeland Security estimates that over half a million-immigrants come to the United States each year on travel visas and simply disappear into the country.  Some of these overstays eventually return to their own country but a significant number do not.

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