Judge accuses Biden administration of politically motivated asylum rule defense

Judge Lawrence VanDyke of the 9th U.S. Circuit Court of Appeals blasted a decision by an appellate panel to postpone deciding whether the Biden administration’s new rule to decrease the number of non-Mexican asylum seekers crossing into the U.S. should be upheld.

VanDyke, an appointee of President Donald Trump who previously criticized his two colleagues on the panel for allowing the rule to stay in place pending appeal, turned his ire this time on the Biden administration in a dissent filed Wednesday.

In the 12-page dissent, VanDyke suggested the U.S. Department of Justice’s request that the 9th Circuit panel not rule on the case pending appeal because of settlement discussions was politically motivated.

“Up until now, we have been repeatedly assured that the rule is critical to the security of the border,” he wrote. “But now, astoundingly, the government seeks to abandon its defense of the rule — or at least put that defense on ice until a more politically convenient time.”

VanDyke’s dissent comes at a time when the U.S.-Mexico border is shaping up as a major political issue in the November election, which is expected to be a rematch between President Joe Biden and his predecessor, Trump.

The ACLU Foundation Immigrants’ Rights Project and similar groups sued the Biden administration over its Legal Pathways asylum rule. It was put in place in May 2023 to replace Title 42, which Trump instituted as a public health restriction along the U.S.-Mexico border at the outset of the COVID-19 pandemic.

U.S. District Judge Jon S. Tigar in San Francisco, an appointee of President Barack Obama who previously struck down similar restrictions on asylum-seekers during Trump’s presidency, enjoined the Biden rule in July.

The 9th Circuit panel granted a motion filed last week by the Justice Department and the ACLU asking it to put the government’s appeal of Tigar’s decision on hold because they “have been engaged in discussions regarding the rule’s implementation and whether a settlement could eliminate the need for further litigation” in the case.

The appeal had been argued before the 9th Circuit panel in November. For the time being, the Biden asylum rule will remain in place because the same panel – Senior 9th Circuit Judges Richard A. Paez and William A. Fletcher, both appointees of President Bill Clinton – granted the government’s motion for a stay pending appeal over VanDyke’s dissent in August.

In Wednesday’s order, Paez and Fletcher voted to grant the motion to hold the appeal in abeyance while ordering the parties to file a joint status report every 60 days. East Bay Sanctuary Covenant et al. v. Biden et al., 23-16032 (9th Circ., filed July 26, 2023).

VanDyke, who wrote that the panel had been “poised to render our decision,” added that the Biden administration’s “abrupt about-face makes no sense as a legal matter.”

He added, “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. At the very least it looks like the administration and its frenemies on the other side of this case are colluding to avoid playing their politically fraught game during an election year.”

VanDyke added that the joint request “seems to be nothing more than a collusive effort to postpone resolution of this case until a more politically palatable time,” most likely after the November election. He spent several pages of the dissent speculating about the reason the Biden administration asked the 9th Circuit panel to hold its ruling in abeyance, suggesting the asylum rule the White House is defending puts it “in a political pickle.”

“It is both politically unpopular with some of its own constituency, and, as the government has vigorously argued, deeply necessary to prevent a worsening of the border crisis, which is perceived as one of this administration’s political vulnerabilities,” VanDyke wrote.

“An abeyance splits the baby, temporarily ensuring that an important tool in its immigration-enforcement toolbox remains in place, while postponing any potential Supreme Court fight about that tool until after the election,” he wrote.

“This temporary resolution to the political problems presented by this litigation affords the administration plausible deniability it can pitch to its base while it nevertheless continues to enforce the rule to stave off a worse crisis at the southern border,” the judge continued.

Brian M. Boynton, a principal deputy assistant attorney general, struggled during November’s oral arguments to answer questions from Paez, who wondered how the Biden rule was really much better than the transit and entry bans that were struck down by the 9th Circuit during Trump’s presidency.

VanDyke suggested in his dissent that the Biden administration was trying to avoid a politically damaging loss in court. “The CNN headline practically writes itself: ‘Biden Immigration Enforcement Policy Struck Down by Two Clinton Appointees,’” he wrote.

Cody Wofsy, an ACLU attorney, declined to comment Thursday on the ruling and VanDyke’s dissent. A U.S. Department of Justice attorney could not be reached.

Arthur Hellman, a professor emeritus at the University of Pittsburgh School of Law, said VanDyke’s dissent is “certainly unusual” because it “impugns the motives of the executive branch.”

VanDyke has developed a reputation for criticizing his liberal 9th Circuit colleagues, and he blasted a previous decision by Paez and Fletcher to grant the Justice Department’s request for a stay, accusing them of reversing the precedent they set when striking down similar Trump administration rules.

“The judge is getting into politics in a way,” Hellman said in a phone interview. “It’s a tradeoff between candor, which is a virtue, and staying out of politics, which is a virtue. Judge VanDyke opted for candor.”

A second lawsuit involving the asylum rule is pending before U.S. District Judge Tanya S. Chutkan of the District of Columbia, an appointee of President Barack Obama, who agreed to the same request by the Justice Department and the ACLU earlier this month. M.A. et al. v. Mayorkas et al., 23-CV-01843 (D. D.C., filed June 23, 2023).