Chief Justice John Roberts Jr. at the investiture of Neil Gorsuch in June 15, 2017. Credit: Diego M. Radzinschi / NLJ

Chief Justice John Roberts Jr. joined the U.S. Supreme Court’s liberal wing Friday in refusing to block a California judge’s ruling against enforcement of new policies that restrict asylum-seekers along the southern border.

The high court, voting 5-4, left in place a ruling from U.S. District Judge Jon Tigar in San Francisco that enjoined the Trump administration from enforcing the new asylum policies. Justices Brett Kavanaugh, Samuel Alito Jr., Neil Gorsuch and Clarence Thomas voted to grant the Justice Department’s request to stay the ruling.

The Justice Department had urged the Supreme Court to halt Tigar’s nationwide injunction, saying the administration’s new rules, limiting entry to designated ports, were crafted to confront a “crisis at the southern border.”

Tigar on Wednesday issued a preliminary injunction against the new rules, replacing a temporary restraining order that he first issued on Nov. 19. Tigar found the new regulations “inconsistent with the will of Congress as expressed in the United States’ immigration statutes.”

The U.S. Court of Appeals for the Ninth Circuit on Dec. 7 upheld the temporary restraining order. “Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office,” Ninth Circuit Judge Jay Bybee wrote for the panel this month.

Several former government lawyers—including Carter Phillips and Peter Keisler of Sidley Austin, and John Bellinger of Arnold & Porter—were amicus parties at the Supreme Court in a brief against the Trump administration.

“A stay is contrary to the public interest because a stay would permit the executive branch to violate a duly-enacted statute for months,” the brief said.

Tigar’s initial ruling sparked an extraordinary back-and-forth between Roberts and President Donald Trump, who called Tigar an “Obama judge.”

“Every case that gets filed in the Ninth Circuit, we get beaten,” Trump said. “And then we end up having to go to the Supreme Court, like the travel ban, and we won.”

Roberts last month issued a rare statement rebuking Trump, saying saying the United States doesn’t have “Obama judges or Trump judges, Bush judges or Clinton judges.”


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