Dispute over national injunctions appears headed to Supreme Court

The Department of Justice, in a battery of filings Tuesday, reproached a renewed national injunction halting Trump administration asylum policy, and asked the Supreme Court and 9th Circuit to swiftly block the injunction's effect.

The government's briefs describe a Monday ruling by U.S. District Judge Jon S. Tigar of San Francisco -- which expanded a remedy the 9th Circuit had limited to its own borders in August -- as impermissibly broad, premised on questionable harms, and overall an undue hindrance to executive branch policymaking.

To the Supreme Court, Solicitor General Noel J. Francisco argued in a supplemental brief that any relief Tigar could rightly grant should protect only the plaintiffs before him -- four organizations aiding immigrants -- rather than all parties the new asylum rule reaches. Francisco also suggested the harm a circumscribed injunction might cause the groups, like resources spent determining what asylum protocol applies to which of their clients, was "minor," and that other problems Tigar's order foresaw, like potential court confusion, were the government's to bear.

"If the government cannot feasibly administer an injunction of proper scope, then it can choose to provide relief more broadly," Francisco's brief read. "The district court has no warrant for imposing a universal injunction against the government's objection for the government's purported benefit."

In an emergency stay request to the 9th Circuit, government attorneys questioned whether Tigar had authority to reconstruct the original nationwide remedy after an appellate motions panel pared it back. That panel's order permitted Tigar to "further develop the record" in support of broad relief, but didn't explicitly remand the matter to the lower court.

"At most, the district court was authorized to issue an indicative ruling -- nothing more," the brief read. "[U]nless and until this Court in fact formally remands the issue to the district court, it is without authority to issue a modified injunction."

Francisco's brief argued the Supreme Court, which already has before it the government's appeal of the motions panel's ruling, needn't wait for a determination from the circuit court. Francisco added that urgent action was necessary to permit cohesive government functioning.

"For the government to stop applying the rule to aliens outside the Ninth Circuit now on account of the district court's September 9, 2019 order, but potentially start applying the rule to such aliens once again after the Court rules on the application for a stay, would severely disrupt the orderly administration of an already overburdened asylum system," Francisco wrote.