A 9th Circuit District Judge has said that illegal aliens claiming to seek asylum in the US cannot be sent back to Mexico to wait for their day in court. The judge’s ruling held, in essence, that
…the administration lacked a legal basis under current law for adopting the policy. He also found the policy ran afoul of the US’ legal obligations not to remove people to a country where their lives or freedom are threatened.
This is wrong on both counts. The whole point of Executive Actions of any sort is to fill a gap in “current law” and so to accomplish something that a President determines needs doing. The laws authorizing such things explicitly authorize a President to fill such gaps. Certainly, a President cannot create new law; his Orders, Proclamations, and so on, must fit within the existing legal system—and, not being law, they can be undone by subsequent Presidents via the same mechanisms.
What’s required is a law that prevents this or that policy from being adopted by Executive Action, and that law does not exist. This Federal judge is legislating from the bench, and that’s a violation of his oath of office.
The other wrong is the judge’s claim that moving purported asylum seekers back to Mexico to wait for their case to be heard is moving them to a nation where their lives or freedom are threatened. This is simply nonsense. Mexico has offered these folks asylum in Mexico, and that nation has gone further: it’s offered them job opportunities so they can earn their way while they wait—or in the event they choose to stay. Mexico is a far safer nation than any of the three Caravan Triangle nations whence most of these purported asylum seekers began their trek. Indeed, the judge’s ruling on this aspect misreads the law. Claimants must make their claims on the basis of the country they’re leaving, not the country from which they originated. That’s Mexico, not Honduras, or El Salvador, or Guatemala.
There’s one other factor here, too. These folks should have no case when their claims do come up in court. They can’t possibly be seeking asylum when they’ve already been offered precisely that from the nation they’re trying to leave to enter the US, and rejected it.