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Federal judge reinstates order blocking Trump immigration policy nationwide, despite higher court ruling


'Nationwide injunctions are a modern invention with no basis in the Constitution or common law'

Bill O'Leary/The Washington Post via Getty Images

A federal judge in California has disregarded a higher court's ruling to reinstate a nationwide injunction against one of the Trump administration's new immigration rules.

On Monday, U.S. District Judge Jon Tigar issued a court order for a nationwide halt to enforcement of a Trump administration rule requiring asylum-seekers who come through multiple countries to apply for refuge in a safe "third country" along the way.

Tigar had already blocked the rule once before in mid-August, but — after the case was appealed — the injunction was dialed back by the 9th Circuit Court of Appeals, which limited to the injunction to areas within their geographic territory. In effect, this meant that the new policy would only have gone into effect for the time being in Texas and New Mexico, but not in Arizona and California, which are within the 9th Circuit's territory.

"While nationwide injunctions are not the 'general rule,' " Tigar — an Obama appointee who is a judge for the Northern District of California — concluded in his latest decision, "they are appropriate 'where such breadth [is] necessary to remedy a plaintiff's harm.'"

The Trump administration responded to the 9th Circuit's August decision by asking the Supreme Court to allow for the enforcement of the asylum rule despite the ongoing legal fight.

This fight over this injunction highlights the ongoing debate about whether or not lower-level federal judges should be able to unilaterally stop the enforcement of laws and regulations outside of their own jurisdiction in the first place.

While nationwide injunctions have become a fairly common legal tool used by organizations and activists to obstruct President Trump's agenda — so long as they're willing to shop around for a sympathetic federal judge — opponents say that they upend the checks and balances of the federal system laid out in the Constitution.

"While a small number of suits present matters and settings for which nationwide injunctive relief is appropriate, federal district court judges have issued nationwide injunctions in situations far beyond that set," writes Ronald Cass — dean emeritus of the Boston University School of Law — in a 2018 academic paper. "Expanded use of nationwide injunctions—especially broad injunctions against the United States—undermines rule-of-law values, threatens the operation of courts as impartial arbiters of disputes over legal rights, erodes the Constitution's careful separation of functions among the branches of government, and is at odds with basic aspects of the federal judiciary's design, including its geographic divisions."

Recently, Attorney General William Barr lamented in a Wall Street Journal op-ed that "virtually every significant congressional or presidential initiative is enjoined — often within hours — threatening our democratic system and undermining the rule of law."

"Under Article III of the Constitution, courts are supposed to apply the law to the parties before them — not to thousands or millions of third parties," Barr continued. "Nationwide injunctions are a modern invention with no basis in the Constitution or common law."

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