The 9th U.S. Circuit Court of Appeals handed President Donald Trump another defeat on Friday, refusing an attempt to implement Trump’s policy to deny asylum to migrants who cross into the U.S. illegally from Mexico.
Trump had issued his policy Nov. 9 as migrants from Central America were approaching the U.S. border with Mexico. Its implementation was blocked by a lower court, prompting the Trump administration to appeal to the 9th Circuit Court of Appeals, which is based in San Francisco and has a reputation for liberal rulings.
The court characterized the president’s policy as violating the separation of powers outlined by the Constitution.
“Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office,” Judge Jay Bybee wrote for the majority in the 2-1 opinion.
The judges said Congress must be involved in the process.
“We are acutely aware of the crisis in the enforcement of our immigration laws,” the ruling said. “The burden of dealing with these issues has fallen disproportionately on the courts of our circuit. And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place — Congress.”
The ruling said Trump’s order violates existing agreements.
“The rule of decision enforced by the government — that illegal entry, through Mexico specifically, will always be disqualifying — is inconsistent with the treaty obligations that the United States has assumed and that Congress has enforced,” the judges wrote.
There was, however, one dissenting voice on the court.
Trump “adopted legal methods to cope with the current problems rampant at the southern border,” wrote Judge Edward Leavy, appointed by former President Ronald Reagan.
Leavy said Trump’s policy “brings safety and fairness to the conditions at the southern border.”
The Justice Department had no immediate comment beyond affirming a past statement.
“Our asylum system is broken, and it is being abused by tens of thousands of meritless claims every year,” the statement read. “As the Supreme Court affirmed this summer, Congress has given the President broad authority to limit or even stop the entry of immigrants into this country.”
U.S. District Judge Jon Tigar had imposed a temporary restraining order that barred the policy from taking effect until a Dec. 19 hearing on the policy, the Los Angeles Times reported.
Trump fumed last month about a series of defeats in cases before the 9th Circuit Court.
“Because you cannot win, if you’re us, a case in the Ninth Circuit,” Trump said in November. “Every case gets filed in the Ninth Circuit … we get beaten, and then we end up having to go to the Supreme Court.”
Although Trump’s policy was shot down in court, so far few of the migrants who came to the border have entered the U.S. Most of the roughly 1,000 who have tried to scale a border wall have been apprehended, Reuters reported.
Officials now estimate that the migrant camp in Tijuana, which once had more than 6,000 migrants in it, is down to about 2,500, with some turning back on their own and others accepting voluntary deportation from Mexico.
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