Judge to examine Whitaker appointment in U.S. asylum policy case

[December 17, 2018]  By Sarah N. Lynch

WASHINGTON (Reuters) - A federal judge on Monday is set to consider whether President Donald Trump violated the U.S. Constitution by appointing Matthew Whitaker as acting attorney general, part of a broader lawsuit challenging his administration's restrictions on asylum for immigrants.

Setting aside established succession practices, the Republican president last month named Whitaker, a Trump loyalist, as the top U.S. law enforcement official after ousting Jeff Sessions as attorney general.

A decision by U.S. District Judge Randolph Moss could have ramifications for immigrants seeking asylum and for Whitaker's tenure at the Justice Department as he waits for the U.S. Senate to confirm President Donald Trump's permanent nominee for attorney general, William Barr.

The lawsuit challenges Trump's asylum ban for immigrants who illegally cross the U.S. border on the grounds that it violates immigration laws and the Administrative Procedure Act, a statute that governs federal rule-writing procedures.

The lawsuit also makes a constitutional case for why the asylum rules are invalid: that Trump violated the Constitution's so-called Appointments Clause when he appointed Whitaker because the job of attorney general is a "principal officer" who must be confirmed by the Senate, unlike Whitaker.

It is unclear whether Moss will rule on that point.

On Friday, Moss heard arguments in a different case also challenging Whitaker's legitimacy as acting attorney general. Altogether, there are at least nine different legal challenges pending in courts around the country to Whitaker's appointment.

Acting U.S. Attorney General Matthew Whitaker speaks at the Joint Terrorism Task Force office in New York, New York, U.S., November 21, 2018. REUTERS/Carlo Allegri/File Photo

The asylum restrictions at issue in Monday's case were made by Trump through a presidential proclamation in November and an interim final rule issued by the departments of justice and homeland security. The rules were put on hold in November by San Francisco-based U.S. District Judge Jon Tigar.

The San Francisco-based 9th U.S. Circuit Court of Appeals refused to lift the temporary restraining order, saying the Trump administration had "not established that it is likely to prevail."

Last week, the Justice Department asked the Supreme Court to let Trump's asylum order take effect as litigation over it proceeds. Tigar will preside over a hearing on Wednesday and will consider whether to impose a more long-lasting injunction.

The case in court on Monday was filed on behalf of several immigrants seeking asylum, including a Honduran man who fled his country with his daughter after a gang threatened to kill his family.

(Reporting by Sarah N. Lynch; Editing by Will Dunham)

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