Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—November 19

The U.S. Department of Homeland Security emblem. (Hyungwon Kang/Reuters)

2019—Never mind that the plaintiffs in the case before her weren’t even challenging the Department of Homeland Security’s Third Party Transit Rule (which generally bars asylum for persons who did not previously seek asylum in a third country through which they traveled on their way to the United States). Never mind that when another district judge did preliminarily enjoin the Third Party Transit Rule, the Supreme Court (over the dissent of only two justices) granted DHS’s request to block that injunction from taking effect. Somehow none of this stops federal district judge Cynthia Bashant from entering her own preliminary injunction (in Al Otro Lado, Inc. v. McAleenan) barring DHS from enforcing the Rule against a supposed class of some 26,000 asylum seekers.

As Ninth Circuit judge Daniel Bress will marvel in dissent months later when a Ninth Circuit panel declines to grant DHS a stay pending appeal, “How could this ever happen?”

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