Ninth Circuit scale back of nationwide injunction against Trump asylum rule a blow to key Resistance tactic

Le·gal In·sur·rec·tion | 8/18/2019 | Jared Samilow
red815 (Posted by) Level 3
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Nationwide injunctions issued by a single federal district judge have thwarted dozens of the Trump administration’s priorities. It’s a rigged game, since lawsuits are filed in multiple jurisdictions, and it doesn’t matter if the administration wins most of them.

There are 94 judicial districts in the United States; the administration could prevail in 93 of them but still lose the case if that last judge grants a nationwide injunction. The point here isn’t whether the Trump administration is legally wrong sometimes. It obviously is. The point is the administration starts out with a near automatic loss in the district courts regardless of whether or not it is right given the number of suits filed in multiple jurisdictions.

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So it was with the travel order. No one remembers that the Trump administration won in Massachusetts because it made no difference: the plaintiffs won elsewhere and so it was blocked nationwide until the Supreme Court intervened.

Not surprisingly, the government has been trying for two years to get the circuits to limit nationwide injunctions—without much success. But salvation can sometimes be found in the bleakest of places. On August 16, a divided panel of the Ninth Circuit narrowed a nationwide injunction against a new Trump asylum rule.

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The rule, which was issued last month by the Justice Department and Homeland Security, denies U.S. asylum to most migrants who fail to apply for asylum in a third country they transited through on their way to the United States. For example, the rule denies U.S. asylum to someone from Guatemala who crossed the U.S.-Mexico border without having applied for asylum in Mexico.

The panel decided that the rule should be blocked only within the Ninth Circuit, finding that the district court had “clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms.” Judges...
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