On August 26, U.S. Solicitor General Noel Francisco asked the U.S. Supreme Court to allow the Trump administration to enforce a new asylum rule while a challenge to the rule is working its way through the court system.
The solicitor general asked the U.S. Supreme Court to grant a stay of injunction. If the Supreme Court complies, the Trump administration could deny asylum to people who travel through another country and fail to file for asylum there before applying in the United States. On August 16, the Ninth Circuit had upheld a district court’s injunction, which blocked the rule from going into effect until after courts resolve the cases brought against it. You can read about the Ninth Circuit’s ruling here.
In the government’s request for a stay, Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the Administrative Procedure Act (APA). He argued that if the Supreme Court does not remove the injunction it should at least limit its application to specific people who were injured under the new rule. When the Ninth Circuit upheld the initial injunction, it limited the scope to those states within its jurisdiction.
What comes next?
According to Amy Howe, writing for SCOTUSblog, Justice Elena Kagan handles emergency requests related to cases before the Ninth Circuit. She will decide whether to rule on the government’s request herself or to refer the decision to the full Supreme Court.