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VanDyke Says Decades-Old Case Highlights Flaws in System
In Challenge to Asylum Rules Adopted by Trump, Biden Administrations, Jurist Agrees With Order Remanding Matter but Decries ‘Supreme Court Keep-Away,’ With Judges Setting Nationwide Policy
By Kimber Cooley, associate editor
Ninth U.S. Circuit Court of Appeals Judge Lawrence VanDyke yesterday decried the ability of federal judges to “effectively dictate nationwide policy on monumental issues” and create delays in bringing such matters before the U.S. Supreme Court due to “flaws” in the judicial system, problems he said are highlighted in litigation going back nearly a decade over asylum rules promulgated by the last two presidential administrations.
His commentary comes by way of a concurrence written to accompany an order, issued yesterday, lifting a stay in the asylum case and remanding the matter back to the District Court for consideration as to how last year’s U.S. Supreme Court decision in Food and Drug Administration v. Alliance for Hippocratic Medicine, which addresses organizational standing, impacts the case.
The challenge to the migration guidelines was brought by East Bay Sanctuary Covenant and other immigration organizations, arguing that rules limiting the eligibility criteria for asylum seekers, adopted by the Department of Justice and the Department of Homeland Security during President Donald Trump’s first administration, were arbitrary, capricious, and in conflict with other federal law.
District Court Judge Jon S. Tigar of the Northern District of California set aside the rules after finding that the organizations had standing to sue. In 2020, the Ninth Circuit affirmed, based in part on circuit precedent establishing that an organization may establish standing by showing that the defendant’s conduct necessitated a “diversion of…resources” and a “frustration of its mission.”
After the 2020 election ushered in a new administration, then-President Joe Biden’s team promulgated similar guidelines restricting the eligibility criteria for asylum. The plaintiffs amended their complaint to challenge the Biden administration rule, which Tigar also set aside on July 25, 2023.
A stay was granted by the Ninth Circuit, pending appeal. Before the court reached the merits of the case, the parties filed a request to have the appeal, which was poised to attract national attention, placed in abeyance to allow for “settlement discussions.”
Their request was granted on Feb. 21 of last year.
Yesterday’s order, signed by VanDyke as well as Senior Circuit Judges William A. Fletcher and Richard A. Paez, followed a Feb. 5 notification by the parties that their attempts to resolve the dispute had been unsuccessful.
Protracted Saga
VanDyke said that he “reluctantly” agrees with his “panel colleagues that we should remand this case to the district court for reconsideration of the plaintiff organizations’ Article III standing,” but that he writes separately “to point out how the latest chapter in this sad, protracted saga powerfully illustrates an unhealthy condition afflicting the very foundations of our national government.”
Saying that “[t]he first challenge is the ease with which just one (district) or two (circuit) judges can effectively dictate nationwide policy on monumental issues, even where the legal validity of the judges’ decisions is dubious,” he added that the second issue is that “their policy prescriptions, even when controversial and legally suspect, often last for very long periods of time with no plenary Supreme Court review of the merits.”
After an overview of the procedural history of “this long-running case,” the judge remarked:
“Fast forward to 2025….Now that the organizational plaintiffs are no longer singing Kumbaya with a friendly administration, you’d think this case might finally be bound for Supreme Court review. Wrong. So much time has passed in this legal twilight zone that the law and facts in this case have potentially changed, requiring us to punt back to the district court—the latest play in this ongoing game of Supreme Court keep-away.”
He continued:
“Although these changes now command sending this case back to the district court, doing so will even further delay the Supreme Court’s review of our circuit’s immigration precedents for several more years (if ever), while keeping our circuit’s indefensible organizational standing precedents on life support in the process.”
National Discussion
The jurist said that the case highlights the “unfortunate state of things” at issue in the “current national discussion…about how one or two lower court judges can set long-term policy decisions on major national issues for a very long time with little to no input from the Supreme Court.”
Noting that “sometimes it isn’t the Supreme Court itself that is avoiding review of nationally important legal issues,” he argued:
“Here, judges on our circuit have engaged in a coordinated dance with sometimes-collusive litigants to manipulate proceedings in what makes little rational sense except as a sustained effort to safeguard a single judge’s ability to both direct national policy and avoid Supreme Court review.” VanDyke opined that “[b]y the time this case percolates back through the court system and is ready for Supreme Court review—assuming it isn’t judicially sidelined again—more than a decade will have passed where just one or two lower court judges will have imposed their preferences on critically important immigration policies for the entire nation.”
Having little to offer by way of solutions to these problems, he commented:
“What can be done about this? I’m not sure. But what I do know is that it isn’t healthy and, if it continues, people will lose faith in the judiciary. So while I reluctantly concur in the decision to send this case back down for a restart, I also hope something will be done about the more fundamental flaws in the present functioning of our federal judicial system that this case embodies. If something isn’t done, I fear we are headed for a governmental crisis—and one where the least dangerous branch is likely to find itself on the losing end.”
Supreme Court Case
In the order remanding the case to the District Court, the judges wrote:
“In the intervening months since the completion of briefing in this case, the Supreme Court decided [Hippocratic Medicine]….Among other issues, the Court provided new guidance on how organizations may establish standing to sue on their own behalf. Organizational standing is an issue in this appeal. Because the parties and the district court did not have the benefit of Hippocratic Medicine, the district court should address its impact in the first instance.”
The Hippocratic Medicine case involved a challenge by four pro-life medical associations and several individual doctors to the Federal Drug Administration’s announcement in 2021 that it would no longer require in-person visits for patients seeking to obtain mifepristone tablets, a drug used for terminating pregnancies.
In an opinion, authored by Justice Brett Kavanaugh, the high court found that the plaintiffs lack Article III standing to challenge the agency’s actions. He wrote:
“[A]n organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action. An organization cannot manufacture its own standing in that way.”
The Trump administration rules at issue required, among other things, those seeking asylum in the U.S. to have previously applied for similar protection in the other countries visited before reaching our borders, subject to certain exceptions. Biden’s administration similarly restricted asylum access for those who did not apply for immigration relief in other countries.
The case is East Bay Sanctuary Covenant v. Trump, 23-16032.
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