Donald Trump addresses the Road to Majority conference in Washington, DC, on June 22, 2024. (Allison Bailey/NurPhoto via AP). Right: In this Oct. 18, 2011 file photo, U.S. Supreme Court Justice Antonin Scalia glances at the balcony before speaking at the Chicago-Kent College of Law in Chicago (AP Photo/Charles Rex Arbogast, File).
A federal judge in Washington, D.C., has stopped President Donald Trump’s officials at the Department of Homeland Security (DHS) from enacting the executive’s proclamation from Inauguration Day, which stated that an “invasion” and emergency warranted an asylum ban along the southern border.
U.S. District Judge Randolph Moss ruled on Wednesday, in a detailed opinion, that Trump exceeded his legal authority and acted “contrary to law” by bypassing the Immigration and Nationality Act (INA) to “prevent covered aliens from seeking asylum or establish new limitations on asylum that have not been formally regulated.”
Moss, a Barack Obama appointee, cited the late conservative Justice Antonin Scalia several times to push back on the Trump administration’s arguments that there was no judicial review of the president’s proclamation available to seven individual plaintiffs who remain in the U.S. — identified only by the initials A.M., Z.A., T.A., A.T., B.R., M.A., and G.A — and three plaintiff nonprofit legal groups: the Refugee and Immigrant Center for Education and Legal Services; Las Americas Immigrant Advocacy Center; and the Florence Immigrant & Refugee Rights Project.
The judge pointed out that he was not enjoining the president but rather those in DHS attempting to implement the proclamation through guidance against asylum or “withholding of removal” relief. Moss said he was following the “approach” to judicial review of a presidential action that Scalia “endorsed.”
“On Defendants’ telling, no matter what the Court does, the Proclamation will remain in effect and, even if the implementing guidance is enjoined or vacated, the Proclamation will continue to preclude immigration officials from considering Plaintiffs’ requests for asylum or withholding of removal,” Moss said. “Justice Scalia spoke directly to this issue in his concurring opinion in Franklin v. Massachusetts.”
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In that concurrence, Scalia wrote that “[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive.”
Later in Moss’ opinion, he reiterated that there wasn’t “merit” to the argument that Trump’s proclamations “lie beyond the scope of review even, when the relief is limited to enjoining the actions of subordinate government officials.” He pointed a second time to Scalia’s concurrence.
The judge said the administration’s assertion that flouting the INA was done out of necessity flies in the face of the Framers’ understanding and “undermines respect for the rule of law[.]”
“[N]othing in the INA or the Constitution grants the President or his delegees the sweeping authority asserted in the Proclamation and implementing guidance. An appeal to necessity cannot fill that void,” Moss said.
The judge further stated the Trump administration “cannot avoid judicial review by simply declaring that its actions are unreviewable.”
In a footnote aside, Moss referenced the Framers for a second time, calling it a “dubious proposition” — for which the Trump administration “offered no support whatsoever” — that the term “invasion” as it was used in the founding era included “illegal immigration.”
After declaring that Trump’s proclamation “unlawful insofar as it purports to suspend or restrict access to asylum, withholding of removal, or the existing regulatory processes for obtaining CAT [Convention Against Torture] protection,” the judge also ruled that DHS’ implementing guidance for asylum officers was “arbitrary and capricious” under the Administrative Procedure Act.
Moss, having found that the plaintiffs had standing to sue and having certified them as a class, delayed the effect of his order for two weeks, giving the government time to appeal to the U.S. Court of Appeals for the District of Columbia.
Read the full 128-page opinion here.
