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Judge Xinis becomes the first federal judge to find that putative Acting DHS Secretary Wolf was likely appointed unlawfully, BUT limits her injunction against the asylum EAD rule *only* to members of the plaintiff organizations—meaning it remains in place for everyone else. https://twitter.com/SuzanneMonyak/status/1304837047371411459
This is why the whole kerfuffle around nationwide injunctions is so absurd. Despite the Administrative Procedure Act declaring that judges must "set aside" rules which are unlawful, Judge Xinis felt she was able only to grant a limited injunction.
"In sum, the Court concludes that Plaintiffs are likely to demonstrate McAleenan's appointment was invalid ... and so he lacked the authority to amend the order of succession to ensure Wolf's installation as Acting Secretary."
Opinion here: https://www.courtlistener.com/recap/gov.uscourts.mdd.483518/gov.uscourts.mdd.483518.69.0.pdf
Opinion here: https://www.courtlistener.com/recap/gov.uscourts.mdd.483518/gov.uscourts.mdd.483518.69.0.pdf
Judge Xinis also found that portions of the regulation were severable, *despite* her finding that the rule itself was promulgated unlawfully by Chad Wolf. So she limited injunctive relief only to specific provisions of the rule, and again only against CASA and ASAP's members.
This injunction is harder for DHS to administer than a nationwide injunction, in many ways! DHS will now have to inquire as to every application whether they are a member of Casa de Maryland or @asylumadvocacy, and can only apply the rule in its entirety to people who are not.
Depressingly, Judge Xinis disagreed with plaintiffs on organizational standing, and found that the recent 4th Circuit DACA decision prevented her from finding that the plaintiff organizations could establish standing—so only the membership organizations had standing.
The lack of organizational standing and limit only to representation standing is particularly damaging here because it meant that Judge Xinis did NOT enjoin some of the worst aspects of the asylum EAD rule, like the ban on work permits for people who cross between ports of entry.
What does this mean for the broader attempt to block the asylum EAD rule? Well, last night's decision is only a minor victory, sadly. It will only protect members of two specific organizations, and even then only from a few specific parts of the rule.
So the fight continues!
So the fight continues!
On the actual merits of the challenges to Wolf's appointment, Judge Xinis agreed with the government that the FVRA's 210-day limit and remedies apply only to FVRA appointments, and NOT to appointments under agency-specific succession statutes.
cc: @AJosephOConnell @steve_vladeck
cc: @AJosephOConnell @steve_vladeck
However, Judge Xinis directly rejected the government's argument that the errors in the appointment of Kevin McAleenan should be ignored and Secretary Nielsen's intent is the only thing that matters. As a result, she found that McAleenan was unlawfully appointed, and so was Wolf.
On APA grounds, Judge Xinis's opinion supports a major issue that will arise with the monster asylum reg and the COVID-19 asylum ban reg; the agency can't published a bunch of different rules, all of which interact with each other, and then refuse to consider their interactions.
On the issue of harm, Judge Xinis rightfully rejected the government's absurd claim that excessive delays in work authorization could be solved by mandamus lawsuits rather than setting aside the rule. I mean, come on.
Judge Xinis also rejected the government's ridiculous claim that it would be irreparably harmed if forced to follow deadlines that have been in place since 1995.
"As for the Government’s larger philosophical concerns about strain on the 'rule of law,' the agency would do well to look inward. The agency cannot itself violate those principles, then claim irreparable harm because it is held to account for such violations."
Summed up well!
Summed up well!
