(Reuters) - Broadly speaking, challenges to the Trump administration’s policies fall into three categories: statutory, in which critics claim Trump directives encroach on laws already enacted by Congress; procedural, citing alleged shortcomings under the Administrative Procedure Act; and constitutional, in which challengers invoke, for instance, the First Amendment, due process protections or even separation of powers doctrine.
Obviously, the categories often overlap. In the travel ban litigation, for instance, the U.S. Supreme Court considered the legality of the policy on both statutory and constitutional grounds. Challenges to the government’s rescission of temporary protective status for displaced residents of disaster-struck countries and its overturning of the Obama-era Deferred Action for Childhood Arrivals policy have cited APA and constitutional grounds. So have cases by “sanctuary” jurisdictions seeking to block the Justice Department from cutting off grant money.
The litigation over President Trump’s recent ban on asylum for migrants who enter the U.S. outside of an official port of entry on the southern border presents a trifecta of statutory, procedural and constitutional questions. The ACLU, Southern Poverty Law Center and Center for Constitutional Rights, representing four California groups that provide aid to asylum-seekers, claim the new asylum policy was not only adopted without the notice and comment required by the APA but also in violation of the Immigration and Naturalization Act, implicating constitutional separation of powers concerns. According to its critics, the asylum restrictions are just about as illegal as a policy can be.
The Justice Department disagrees, of course. In its brief opposing the temporary restraining order sought by the asylum groups, the government argued that the APA’s notice-and-comment requirements do not apply when important national security interests are at stake and when a policy is inextricably tied to the president’s power over foreign affairs. DOJ also said that the asylum restrictions comply with the INA because even though Congress provided a right to seek asylum for migrants who cross the border illegally, the INA gives executive branch officials broad discretion about whether to grant asylum.
U.S. District Judge Jon Tigar of San Francisco had his say on Monday. As you’ve probably heard, the judge granted the ACLU’s motion for a temporary restraining order, suspending enforcement of the new asylum restrictions until at least Dec. 19, when the judge is scheduled to hold a preliminary injunction hearing.
Given his array of choices, I was wondering which of the challengers’ rationales Tigar considered most persuasive. The judge expressed concerns about the government’s dispensation with the APA’s notice-and-comment requirements, noting “serious questions” about the administration’s invocation of the good cause and foreign affairs exceptions to rulemaking procedures. “It cannot be the case that simply stating that something will have an effect makes that effect likely or even possible, particularly where there is no apparent logical connection between dispensing with notice and comment and achieving a foreign affairs goal,” the judge wrote.
But he ended up basing the TRO on the text of the Immigration and Naturalization Act, not on the APA. The INA specifies that “”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.” According to Judge Tigar, Congress’ intent is not at all ambiguous: “The failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process.”
So the Trump administration’s rule barring migrants who cross the Southern border outside of ports of entry, the judge said, cannot be reconciled with the statute itself. DOJ contended that the rule doesn’t contradict the statute because the attorney general, who has authority over asylum proceedings, can deem illegal entry an automatic bar to asylum. Judge Tigar said that cannot be. “The argument strains credulity,” he wrote. “To say that one may apply for something that one has no right to receive is to render the right to apply a dead letter. There simply is no reasonable way to harmonize the two.”
The executive branch, he said, cannot by fiat adopt a policy that nullifies Congress’ words without offending separation of powers principles. Consideration of how an asylum seeker entered the country, in conjunction with other factors, might lead to a denial of asylum in an individual’s case, the judge said. “But that does not make Congress’s command (in the INA’s asylum’s provisions) ambiguous.”
It seems to me that by grounding his ruling in the text of the Immigration and Naturalization Act, Judge Tigar has made it more difficult for the government to justify its asylum restrictions going forward. Even if the administration were to cure the procedural issue by conducting a notice and comment inquiry, it would still face what Judge Tigar considers the fundamental problem of the policy’s inconsistency with the language of the statute. As Judge Tigar noted, even the U.S. Supreme Court, in the decision DOJ inevitably cites to justify President Trump’s restrictive immigration policies, said in Trump v. Hawaii (138 S. Ct. 2392) that the president’s power to restrict immigrants’ entry into the U.S. “does not allow the President to expressly override particular provisions of the INA.”
The Justice Department remains unbowed by the TRO, asserting in a statement that Judge Tigar misread the law. “As the Supreme Court affirmed this summer, Congress has given the President broad authority to limit or even stop the entry of aliens into this country,” the statement said. “Further, asylum is a discretionary benefit given by the executive branch only when legal conditions are met and a favorable exercise of discretion is warranted. It is lawful and appropriate that this discretionary benefit not be given to those who violate a lawful and tailored presidential proclamation aimed at controlling immigration in the national interest … We look forward to continuing to defend the executive branch’s legitimate and well-reasoned exercise of its authority to address the crisis at our southern border.”
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