President Donald Trump’s effort to deny asylum to migrants crossing the southern U.S. border has faltered yet again, after a federal appeals court declared it to be at odds with U.S. law.
In a rebuke to the White House, the 9th Circuit Court late Friday ruled that the president’s Nov. 9 proclamation withholding asylum to those who cross into the country without papers outside of official ports of entry is “likely inconsistent” with current U.S. law.
The divided 2-1 decision, which prevents the president’s plan from going into effect, also said that Trump’s efforts represent an attempt to circumvent Congress.
“Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the Executive legislate from the Oval Office,” Judge Jay Bybee wrote for the majority.
“We are acutely aware of the crisis in the enforcement of our immigration laws,” the decision noted. “The burden of dealing with these issues has fallen disproportionately on the courts of our circuit. And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place—Congress.”
The decision imposes a temporary restraining order, which will seemingly remain in place until Dec. 19, when another hearing is scheduled. Judge Edward Leavy, a Reagan appointee, dissented, arguing that the government “adopted legal methods to cope with the current problems rampant at the southern border.”
The Friday night decision continues a heated back-and-forth over Trump’s efforts to limit immigrants and asylum seekers entering the United States across its southern border.
Trump, who has threatened to shut down the U.S. border over immigration issues, repeatedly has taken a hardline approach to border control. Thousands of U.S. troops are currently stationed at the border, sent by the administration in October amid concerns over an approaching “migrant caravan” from Central America. The caravan, carrying a number of people hoping to seek asylum, has also spurred a string of legal actions from the White House, including the November presidential proclamation.
Like the troop deployment, those legal moves have generated controversy and pushback. Two weeks after the initial proclamation, U.S. District Judge Jon S. Tigar of San Francisco blocked the president on Nov. 20, stating that he had violated a “clear command” from Congress. Under existing U.S. law, those who cross the border and claim asylum are protected while their claims are assessed.
“[F]ailure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process,” Tigar wrote at that time.
The administration, which dismissed Tigar as an “Obama judge,” appealed to the 9th Circuit following that ruling. Bybee, the judge who penned Friday night’s decision, is a George W. Bush appointee.
The Department of Justice has not released a statement regarding the latest ruling. Trump has notably tangled repeatedly with the 9th Circuit, calling the court “a big thorn in our side” and accusing its judges of undermining U.S. security.