Laugh's on Me

From video at Washington Post.

Well, I was asking the right question:

I'll bite. Is it really already in effect without waiting for a court to rule at all? It seems transparently illegal.

— O'er the Airports We Watched (@Yastreblyansky) July 18, 2019

That's the new rule (borrowed from fascist Hungary) requiring asylum applicants coming to the US from a third country (such as Mexico) to show proof that they've tried and failed to get asylum status in that third country or someplace they went before (Belize or Guatemala for nearly all of those coming through Mexico), the clear intent of which is to enable CPB to send them all back without hearing their claims, in other words a plan to stop the Mexican border crisis by enabling the government to reject everybody. It looked extremely serious to me; it looked as if it was going to end asylum in the US, not just at the Mexican border, and cooperation with the 1951 Geneva Convention altogether, forever.

It clearly violates US statute:

Is the new third country rule sound legally and from a policy perspective? First consider the law—specifically, the text and structure of the INA's detailed asylum provision, which by its terms allows "[a]ny alien" at a U.S. border to "apply for asylum" under 8 U.S.C. § 1158(a)(1). Courts have read the asylum provision's reference to "any alien" broadly in the litigation over the administration’s asylum ban, which the new rule resembles. In the asylum ban lawsuit,  Judge Jay Bybee of the U.S. Court of Appeals for the Ninth Circuit cited the breadth of this statutory language in declining to stay the district court's injunction against the asylum ban, which would have required a denial of asylum to foreign nationals who entered the United States at points along the southern border not officially designated to receive asylum seekers. Citing the asylum provision in the INA, Bybee noted that the statute expressly authorized claims by asylum seekers, "whether or not at a designated port of entry" (emphasis added).

That's a judge who got famous back in the day for sponsoring the view that the president was allowed to order torture during the War on Terror. If he thinks something exceeds the president's authority, it probably exceeds the president's authority.

So what I learn this morning, from a report originating on NPR, is that they actually haven't put the illegal new policy into effect, or rather they've only started "piloting" it, and they already know it's illegal. In the CNN version:

(CNN) - Acting Customs and Border Protection Commissioner Mark Morgan on Thursday said a new asylum rule introduced earlier this week is in the "piloting" phase even as officials expect it to be blocked in court.

"Although the new federal regulation allows us to apply that all 2,000 miles along the southwest border, we're not going to do that. We're really piloting it in just one location," Morgan told NPR's All Things Considered. The regulation is being rolled out at two CBP stations in the Rio Grande Valley, he said.

Morgan appeared to acknowledge the rule could quickly be "enjoined" before it's implemented wider. "We're actually anticipating the ... regulation will be enjoined," he said. "And then we'll have to go from there, as unfortunately, many times, this happens."

Does that mean what I think it means? That if you're an asylum seeker in Texas looking for a CBP agent to surrender to there are a couple of agents who will tell you you're required to prove Mexico has already denied your application and the other ones won't? So that if you're in the El Paso region, say, running into an agent from Lordsburg might deport you immediately, while one from Clint could throw you into detention and one from El Paso proper could put you on a bus to your family in New Jersey or give you a court date six months down the line and tell you to go wait for it in Mexico? That they've just added another level of arbitrariness for the customers to be baffled by, until such time as a federal judge shuts it down, which should come any minute?

Yes, it's another chapter in the story of government by people desperate to keep the Emperor thinking he's in charge. It's Trumpy complaining that Congress won't rewrite asylum law and demanding that the henchmen come up with a workaround, and then them scrambling to find a move that will make him think he's being obeyed while changing the actual situation as little as possible.

It was another truly horrible idea, but it wasn't meant to be implemented. I guess the laugh's on me.

Cross posted at No More Mister Nice Blog.