Toobin: Ruling an embarrassment for Trump

CNN's Jeffrey Toobin reacts to the Supreme Court's ruling that upholds a federal judge's order blocking the Trump administration's new asylum restrictions.

Posted: Dec 23, 2018 1:19 PM
Updated: Dec 23, 2018 1:45 PM

The Supreme Court on Friday upheld a federal judge's order blocking the Trump administration's new asylum restrictions.

Chief Justice John Roberts sided with the four liberal justices in the 5-4 ruling.

The administration's policy, signed on November 9, would temporarily bar migrants who illegally cross into the US through the southern border from seeking asylum outside of official ports of entry. A federal judge in California quickly blocked the order, and the 9th US Circuit Court of Appeals agreed.

"It's a major blow to the Trump administration and sends a strong signal that there are at least five justices who agree with the district court that the asylum ban exceeds the President's statutory authority," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh said they would have granted the administration's request to lift the hold on the ban. This is the first high-profile vote in which Kavanaugh broke from Roberts. Earlier this year, he and Roberts joined with liberals to rebuff efforts by states seeking to eliminate funding for Planned Parenthood.

The court declined to say when or how Justice Ruth Bader Ginsburg, who had surgery in New York Friday, cast her vote. Other justices are also not in Washington and they were not scheduled to meet as a group this week. In these situations, justices often vote by phone or email.

Roberts-Trump fight

The ruling emphasizes the power of Roberts, a conservative who has sparred at times with Trump, said CNN chief legal analyst Jeffrey Toobin.

"It is a more conservative court now than it was before Anthony Kennedy was replaced by Brett Kavanaugh, but Chief Justice Roberts is going to keep things moving at the customary pace of the Supreme Court, not as fast as the Trump administration wants to go," Toobin told CNN's Pamela Brown.

"On this one question in a preliminary way, he has put the brakes on a Trump administration initiative and that's an embarrassment and it's a defeat for the President," he added.

The court can still hear arguments on the merits of the asylum restrictions at a later date.

The asylum ban was at the center of an unusual fight between Roberts and President Donald Trump last month.

A district court ruled the ban "irreconcilably conflicts" with immigration law. A panel of judges on the 9th Circuit upheld the injunction in an opinion penned by Judge Jay Bybee, a George W. Bush nominee. That led Trump to criticize the San Francisco-based appeals court, which has blocked other administration policies such as the travel ban.

That led Roberts, who has made a public push to emphasize the independence of the judiciary from the political branches, to issue a rare statement.

"The 9th Circuit, we're going to have to look at that," Trump said, before adding that "every case" that goes through that circuit results in "an automatic loss" for his administration. "The 9th Circuit is very unfair."

That led Roberts, who has made a public push to emphasize the independence of the judiciary from the political branches, to issue a rare statement.

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

Trump fired back.

"Sorry Chief Justice John Roberts, but you do indeed have 'Obama judges,' and they have a much different point of view than the people who are charged with the safety of our country. It would be great if the 9th Circuit was indeed an 'independent judiciary,' but if it is why......" Trump tweeted.

Several minutes later, he continued, ".....are so many opposing view (on Border and Safety) cases filed there, and why are a vast number of those cases overturned. Please study the numbers, they are shocking. We need protection and security - these rulings are making our country unsafe! Very dangerous and unwise!"

Aggressive administration strategy

Solicitor General Noel Francisco asked the Supreme Court to greenlight the regulations pending appeal because he said they are "designed to channel asylum seekers to ports of entry, where their claims can be processed in an orderly manner; deter unlawful dangerous border crossings; and reduce the backlog of a meritless asylum claims."

He said that contrary to the holding of the lower court, immigration law allows the attorney general and the secretary of homeland security to exercise their discretion to deny asylum to a migrant who has entered the nation illegally.

Francisco said that even if the justices decided not to lift the injunction they should scale back a nationwide injunction imposed by the lower court.

He also argued that the challengers did not have the legal right to bring the case because they are advocacy groups and not individual aliens.

But the Justice Department's strategy of aggressively filing appeals to the Supreme Court to overturn rulings unfavorable to the President may not be in keeping with the court's modus operandi, Toobin said.

"The Supreme Court doesn't like to be rushed, and Chief Justice Roberts in particular doesn't like to be rushed," said Toobin. "The Supreme Court operates at a very different pace than the rest of us -- they like to have full hearings on the merits, they don't care if it takes a couple extra months."

ACLU attorney Lee Gelernt said the ruling "will save lives and keep vulnerable families and children from persecution."

"We are pleased the court refused to allow the administration to short-circuit the usual appellate process," Gelernt said.

The Justice Department did not immediately return a request for comment.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 512632

Reported Deaths: 10262
CountyCasesDeaths
Harrison34853555
DeSoto33162432
Hinds32556641
Jackson24830389
Rankin22442402
Lee16238242
Madison14874283
Jones14086247
Forrest13741259
Lauderdale12249324
Lowndes11286193
Lamar10644140
Pearl River9707244
Lafayette8827143
Hancock7835132
Washington7550169
Oktibbeha7204138
Monroe6989179
Pontotoc6970109
Warren6849178
Panola6746134
Neshoba6726210
Marshall6653141
Bolivar6440151
Union633897
Pike5924156
Alcorn5862107
Lincoln5525136
George510180
Prentiss500884
Tippah490282
Itawamba4829107
Scott477499
Adams4766125
Tate4748116
Leflore4723144
Copiah455895
Yazoo455591
Simpson4543117
Wayne442772
Covington432895
Sunflower4299106
Marion4265112
Coahoma4227109
Leake413790
Newton395581
Tishomingo381793
Grenada3775109
Stone365666
Jasper340166
Attala337790
Winston317792
Chickasaw313367
Clay311878
Clarke301195
Calhoun284449
Holmes271289
Smith268952
Yalobusha243747
Tallahatchie231453
Greene224749
Walthall221366
Lawrence217840
Perry213356
Amite209557
Webster205148
Noxubee188642
Montgomery181557
Carroll174441
Jefferson Davis173643
Tunica163239
Benton152639
Kemper144941
Choctaw136527
Claiborne134238
Humphreys131139
Franklin124929
Quitman107528
Wilkinson105939
Jefferson96834
Sharkey65121
Issaquena1957
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Alabama Coronavirus Cases

Cases: 844594

Reported Deaths: 16115
CountyCasesDeaths
Jefferson1160612006
Mobile741651379
Madison53255732
Shelby38313368
Baldwin38061589
Tuscaloosa35996641
Montgomery34473781
Lee25541263
Calhoun22582518
Morgan22441406
Etowah20009517
Marshall18771316
Houston17723425
St. Clair16863358
Limestone16123218
Cullman16032303
Elmore15902294
Lauderdale14945306
Talladega14186299
DeKalb12957269
Walker12011380
Blount10700192
Autauga10512157
Jackson10151194
Coffee9412192
Colbert9325208
Dale9013191
Tallapoosa7248201
Russell707465
Chilton7015170
Escambia6951143
Covington6926195
Franklin6337108
Chambers5778142
Marion5400130
Dallas5283209
Pike5114109
Clarke484986
Lawrence4826129
Winston4777110
Geneva4640136
Bibb434094
Barbour369180
Butler3433100
Marengo342393
Monroe336666
Randolph334067
Pickens333188
Fayette329885
Henry320566
Hale317989
Cherokee316963
Crenshaw260477
Washington256952
Cleburne254360
Lamar251253
Clay250869
Macon244764
Conecuh192762
Coosa184647
Lowndes178168
Wilcox177438
Bullock152545
Perry141840
Sumter139041
Greene130245
Choctaw93228
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