Just back from a week in the domain of the Ninth Circuit—southern California, specifically—I will highlight this remarkable Ninth Circuit order last week in East Bay Sanctuary Covenant v. Biden.
Some quick background: On May 16, the Biden administration published an immigration rule that applies a presumption of asylum ineligibility to aliens who traveled through a country other than their own before entering the United States through Mexico. If that immigration rule sounds familiar, that’s because it is very similar to rules that the Trump administration adopted—and that the Ninth Circuit blocked.
On July 25, federal district judge Jon S. Tigar ruled that the Biden rule was not materially different from the Trump rules and that binding Ninth Circuit precedent dictated that it was substantively invalid.
The Biden administration asked the Ninth Circuit to stay Tigar’s order. Here’s where things get curious.
The Ninth Circuit panel consisted of Clinton appointees William Fletcher and Richard Paez and Trump appointee Lawrence VanDyke. In February 2020, Judge Paez, joined by Judge Fletcher, had written an opinion that invalidated one of the Trump administration rules, and in July 2020 Judge Fletcher had written an opinion that invalidated the other. Judge VanDyke had (along with several colleagues) dissented from the denial of rehearing en banc in both cases. So you might think that Fletcher and Paez would decline to stay Tigar’s order and that VanDyke might be inclined to grant the stay request.
Instead, Fletcher and Paez issued a brief order granting the stay request. In a strong and colorful dissent, VanDyke agreed with Tigar that binding circuit precedent justified Tigar’s ruling:
The Biden administration’s “Pathways Rule” before us in this appeal is not meaningfully different from the prior administration’s rules that were backhanded by my two colleagues. This new rule looks like the Trump administration’s Port of Entry Rule and Transit Rule got together, had a baby, and then dolled it up in a stylish modern outfit, complete with a phone app. Relying on this court’s rationales in our prior decisions rejecting the Trump administration’s rules, Judge Tigar concluded that this new rule is indistinguishable from those rules in any way that matters. He’s right. For those who value the rule of law, following precedent, and predictability, one must conclude Judge Tigar had no choice but to vacate the current administration’s Pathways Rule for the reasons that he first provided and my colleagues then established as binding precedent during the Trump administration.
Much as he would “love to join my two colleagues in staying Judge Tigar’s ruling,” VanDyke says that he “cannot so easily ignore our circuit’s binding precedent.” Noting that Fletcher and Paez themselves “made all that precedent,” VanDyke observes that “it’s hard to shake the impression that something other than the law is at work here”:
Besides the glaring fact that this rule was promulgated under a different administration, there is at least one additional possible reason why my colleagues are granting a stay in this case. Perhaps they see the writing on the wall that, if we don’t stay the district court’s vacatur, the Supreme Court likely will. I fully agree. Given the legal infirmities in our caselaw that Judge Tigar is bound by our court to perpetuate, combined with his latest ruling’s disruption of the government’s immigration system, there is a good chance the Supreme Court would need to step in. But notwithstanding the wrongness of Judge Tigar’s vacatur, it is fully consistent with—nay, compelled by—our court’s wrong precedent. And we (and Judge Tigar) are unfortunately obligated to follow that precedent—whether we now like it or not—until it is corrected by either our en banc court or the Supreme Court. There is no exception to binding circuit precedent for when we realize “that terrible law we made back when it was expedient is so bad the Supreme Court is likely to correct us.”