A federal appeals court judge berated the Biden administration on Wednesday for seemingly underhanded legal tactics in a key immigration case, accusing the Justice Department of “colluding” with the ACLU and other immigrant rights advocates to surrender a major new get-tough policy.
Circuit Judge Lawrence VanDyke said the Biden team seemed to be trying to derail the case so it didn’t reach the Supreme Court and unravel years of migrant-friendly rulings out of the famously liberal 9th U.S. Circuit Court of Appeals.
The judge said the administration may be trying to avoid a politically embarrassing loss, or it may be engaged in a subterfuge where it is working with the activists to try to get an outcome that would tie the hands of a future president who was more interested in stiff enforcement.
Whatever the motive, he said, the government is involved in political shenanigans.
“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,” wrote Judge VanDyke, a Trump appointee.
At issue is an asylum policy the government announced last year. It tightens the rules on who can claim protection in the U.S. based on whether asylum seekers had a chance to make a claim in another country en route here.
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The thinking is that an actual refugee fleeing government persecution could claim asylum in the first country it comes to. That suggests those who cross several Central American nations and Mexico on their way to the U.S. are more like traditional migrants than asylum seekers.
Immigrant rights groups recoiled at the rule and sued to stop it.
For months, the Biden administration fiercely opposed the immigration activists. Government lawyers told the judges that the border could fall into a total breakdown if the asylum rule were overturned.
Yet now the administration has linked arms with its opponents — including the American Civil Liberties Union — and asked the judges to put the case on ice while it negotiates a settlement.
The court agreed, in a 2-1 decision.
Judge VanDyke dissented, saying they were allowing the administration to game the system.
“Either it previously lied to this court by exaggerating the threat posed by vacating the rule, or it is now hiding the real reason it wants to hold this case in abeyance,” he wrote.
He said the case smacked of the sort of deal-making that takes place between liberal administrations and like-minded activists. The playbook calls for the activists to sue, then the administration to mount a weak defense or no defense at all, eventually agreeing to a settlement that binds the government to actions or policies that both sides really wanted all along.
Immigration and environmental policy are two key areas where “sue-and-settle” is practiced.
Judge VanDyke said the Biden administration may be going for a two-fer in this instance, working with immigration activists on “policy that resonates with its base” while blaming the courts for any problems that result from the policy.
“It could take credit for creating an important rule and defending it with one hand, and then, by colluding with the plaintiffs, it can set the policy it actually wants with the other, all while publicly blaming the result — cloaked as it is in the language of a judicial ‘settlement’ — on the courts,” he wrote.
He said the administration appeared to have a strong argument on its side of the case, so the decision to seek settlement was odd — particularly because “it is clear enough that the government is destined to prevail before the Supreme Court.”
“Given all of this, it’s hard to avoid any impression other than that the administration is snatching defeat from the jaws of victory — purposely avoiding an ultimate win that would eventually come later this year, whether from this court or from the Supreme Court,” he said.
The Justice Department declined to comment.