A divided U.S. appeals court late Friday refused to immediately allow the Trump administration to enforce a ban on asylum for any immigrants who illegally cross the U.S.-Mexico border.
The ban is inconsistent with an existing U.S. law and an attempted end-run around Congress, a panel of the 9th U.S. Circuit Court of Appeals said in a 2-1 decision.
"Just as we may not, as we are often reminded, 'legislate from the bench,' neither may the Executive legislate from the Oval Office," 9th Circuit Judge Jay Bybee, a nominee of Republican President George W. Bush, wrote for the majority.
A spokesman for the U.S. Department of Justice, Steven Stafford, did not have a comment. But he referred to an earlier statement that called the asylum system broken and said the department looked forward to "continuing to defend the Executive Branch's legitimate and well-reasoned exercise of its authority to address the crisis at our southern border."
At issue is President Donald Trump's Nov. 9 proclamation that barred anyone who crossed the U.S.-Mexico border between official ports of entry from seeking asylum. Trump issued the proclamation in response to caravans of migrants approaching the border.
A lower court judge temporarily blocked the ban and later refused to immediately reinstate it. The administration appealed to the 9th Circuit for an immediate stay of Judge Jon Tigar's Nov. 19 temporary restraining order.
In a dissenting opinion Friday, 9th Circuit Judge Edward Leavy said the administration "adopted legal methods to cope with the current problems rampant at the southern border." Nothing in the law the majority cited prevented a rule categorically barring eligibility for asylum on the basis of how a person entered the country, Leavy, a nominee of Republican President Ronald Reagan, said.
In his Nov, 19 ruling, Tigar sided with legal groups who argued that federal law is clear that immigrants in the U.S. can request asylum regardless of whether they entered legally.
The president "may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden," the judge said in his order.
The ruling led to an unusually public dispute between Trump and Chief Justice John Roberts after Trump dismissed Tigar — an appointee of Trump's predecessor — as an "Obama judge."
Roberts responded with a statement that the federal judiciary doesn't have "Obama judges or Trump judges, Bush judges or Clinton judges."