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A 9th Circuit Judge Savaged Congress For Inaction On The Immigration Crisis

Kevin Daley on December 6, 2019

Judge Jay Bybee of the 9th U.S. Circuit Court of Appeals took Congress to task Thursday in an extraordinary opinion that savaged lawmakers for failing to address the immigration crisis.

Bybee issued concurring opinion in connection with a dispute over immigration and public benefits.

“By constitutional design, the branch that is qualified to establish immigration policy and check any excesses in the implementation of that policy is Congress,” Bybee’s concurrence reads. “And, so far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates.”

“We have seen case after case come through our courts, serious and earnest efforts, even as they are controversial, to address the nation’s immigration challenges,” Bybee added. “Yet we have seen little engagement and no actual legislation from Congress. It matters not to me as a judge whether Congress embraces or disapproves of the administration’s actions, but it is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up.”

The opinion elsewhere laments that the 9th Circuit has become the standing forum for resolving disputes over immigration policy, such as the president’s attempt to build a border wall or rescind the Deferred Action for Childhood Arrivals (DACA) program. Despite the 9th Circuit’s politically salient docket, Bybee said the public should not “mistake our judgments for our policy preferences.”

“I am not so naive as to think that a simple declaration of judicial neutrality will quell inquiry into judges’ backgrounds, prior writings, and opinions,” Bybee wrote. “The battles over judicial nominations provide ample proof that our generation of lawyers bear a diverse set of assumptions about the nature of law, proper modes of constitutional interpretation, and the role of the judiciary. These are fair debates and they are likely to continue for some time.”

“We can only hope that over time our differences can be resolved by reason and persuasion rather than by politics by other means,” he added.

Bybee’s opinion came as the 9th Circuit lifted two injunctions that barred the Trump administration from enforcing the public charge rule. That policy allows immigration officials to take account of a migrant’s reliance on government benefits when they apply for legal status. Federal trial judges in California and Washington State barred enforcement of the change, finding the policy violates the Administrative Procedure Act (APA).

Former President George W. Bush appointed Bybee to the bench in 2003. Judge Sandra Ikuta, also a Bush appointee, joined Bybee’s 2-1 decision.

Despite the ruling, the public charge rule remains on hold, since district judges in Maryland and New York also blocked the new policy. White House press secretary Stephanie Grisham lamented that the 9th Circuit’s decision “has accomplished nothing to vindicate the rule of law due,” in a Friday statement.

“Such subversions of the rule of law must come to an end,” Grisham said. “The judicial system must address the grave danger that nationwide injunctions present and ensure that district courts do not grossly overstep the role the Founders intended in our careful system of checks and balances.”

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