November 13, 2018 / 8:16 PM / 7 months ago

Previewing DOJ’s defense in ACLU’s asylum policy challenge

(Reuters) - There’s an intriguing paragraph in the ACLU’s motion for a temporary restraining order to block the Trump administration from executing new restrictions on migrants seeking asylum by crossing the Mexican border. Inserted at the request of government lawyers, it provides a broad hint at how the Justice Department intends to squelch the ACLU’s case.

As you probably know, the ACLU and other groups, representing four California organizations that assist asylum seekers, sued the president and members of his administration in federal court in San Francisco last week. The complaint contends that the new restrictions on migrants seeking asylum violate the Immigration and Naturalization Act and that the government breached the Administrative Procedure Act when it bypassed notice and comment procedures.

In an accompanying memo backing its TRO motion, the asylum assistance organizations argue that both human lives and bedrock constitutional principles are at risk in the case. “The stakes in this case are enormous not only because it involves the fundamental humanitarian protections of asylum, but also because it implicates foundational separation of powers concerns,” the TRO memo said. “This is not a case where the president is filling a void left open by Congress or operating within the interstices of broad congressional policy. It is just the opposite. Here, the president and attorney general are trying to override Congress and settled law.”

The ACLU notified the Justice Department’s Office of Immigration Litigation about the suit and the TRO motion. DOJ, in turn, requested that the plaintiffs add a paragraph to the motion that proposes a Thursday deadline for the government to respond and a hearing date next week. DOJ said, according to the government statement included in the ACLU’s TRO motion, that was plenty of time considering that “the injuries alleged here are not injuries to individual aliens, but asserted organizational injuries.” Moreover, DOJ said, Congress has specified that “an alien actually subject to a new expedited removal procedure” must sue in the District of Columbia.

That DOJ statement is a pretty good clue to the arguments DOJ is going to assert to block the TRO. It will argue that the case belongs in federal court in Washington, D.C., not in California. And, more intriguingly, it will argue that migrants impacted by the new policy should be the ones suing to block it, not organizations that assist asylum seekers. A DOJ spokesperson had no comment.

The U.S. Supreme Court has held, in 1982’s Havens Realty v. Coleman (102 S.Ct. 1114), that organizations have constitutional standing to challenge policies and practices that impact them directly. That’s exactly what the four nonprofits in the ACLU case allege. They claim that as a result of the new restrictions on asylum for migrants entering the U.S. between ports of entry, they will have to retrain staff and otherwise divert resources from established programs. The new policy also jeopardizes their funding streams, they assert. Without a restraining order, they argue, they face irreparable harm to their core missions.

The Justice Department, as you know, aggressively opposed standing for immigration organizations that sued to block the Trump administration’s ban on travel from several Muslim-majority countries. In particular, DOJ cited the Supreme Court’s 1982 decision in Valley Forge Christian College v. Americans United for Separation of Church and State (102 S.Ct. 752) to argue that organizations could not assert religious discrimination arguments on behalf of their members.

I doubt that will be the government’s tack in the new asylum case, since the groups are claiming that they themselves will be irreparably harmed by the Trump policy. But I expect the government to claim the groups are not at risk of imminent and irreparable harm – a quick way to end their bid for a temporary halt to the new policy. The DOJ statement in the ACLU’s TRO motion hints that the government will also assert that the groups themselves do not have a claim because only migrants rebuffed at the border can sue. The Supreme Court’s Havens precedent suggests they do.

The ACLU and its litigation partners moved fast on the asylum challenge, suing on the very day the Trump administration issued its presidential proclamation on the new policy. Speed meant suing in the names of organizations, rather than individuals. We’ll find out as soon as next week whether the government can turn that strategy against its challengers.

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