Ninth Circuit Issues Order in East Bay Sanctuary Covenant v. Joseph Biden

We have previously posted on a much-watched case pending before the Ninth Circuit, East Bay Sanctuary Covenant v. Joseph Biden. As we explained in an earlier post, the district court blocked a Trump administration ban that categorically denied asylum to anyone at the southern border who had transited through a third country en route to the United States, with very limited exceptions. The case was then appealed argued before the Ninth Circuit in November, and due to interest in the case, the Ninth made the case brief available to the public.

Today, the Ninth issued an order placing the appeal in abeyance pending the parties settlement decisions. Judges W. Fletcher and Paez joined in the order, with Judge VanDyke, a 2020 Trump appointee, dissenting. Here is a passage from that dissent:

Taking the government at its word about the pressing need for this crucial rule to remain in effect and be enforced, our court granted a stay of the district court’s decision enjoining the government’s rule. We heard oral argument and are now poised to render our decision. Then suddenly, out of the blue, the parties come to us hand-in-hand, jointly asking us to hold off making a decision while they “engage[] in discussions regarding the Rule’s implementation and whether a settlement could eliminate the need for further litigation.” For months, the rule was so important that “any interruption” in its implementation, even for a short period of time, would incapacitate the executive’s border response. This panel made decisions based on those representations. Now, the government implies the rule isn’t so important after all. Indeed, the government is now “engaged in discussions” that could result in the rule going away. What?

The administration’s abrupt about-face makes no sense as a legal matter. Either it previously lied to this court by exaggerating the threat posed by vacating the rule, or it is now hiding the real reason it wants to hold this case in abeyance. Given its success thus far in defending a rule it has consistently characterized as critical to its control of the border, and the fact that it has to realize its odds of success in this case can only improve as it works its way vertically through the federal court system, the government’s sudden and severe change in position looks a lot like a purely politically motivated attempt to throw the game at the last minute.

IE