Congress could never get away with creating constitutional rights for illegal aliens to remain here, yet a single lower court just did so on Thursday. And where Congress would face deep reprisal in the next election, faceless judges will never feel the heat.
Conservatives fear that extreme Democrats might actually abolish ICE and all immigration enforcement, but the lower courts are already systematically abolishing ICE’s authority, nullifying immigration enforcement statutes, violating separation of powers, and constantly increasing the wave of bogus asylum-seekers that they originally spawned with other radical rulings. The latest ruling from the Ninth Circuit demonstrates that unless Republicans and the president begin pushing back against these radical judges and delegitimizing their rulings, Democrats will get everything they want without ever facing electoral backlash or even the need to win elections.
It’s truly hard to overstate the outrageously harmful effects of Thursday’s Ninth Circuit ruling. For the first time in our history, the courts have fabricated a constitutional right for those denied asylum to appeal to federal courts for any reason.
Here’s the background.
Hundreds of thousands of migrants are flooding our border, claiming the formula of “credible fear” of persecution. They get to stay indefinitely while they ignore their court dates in immigration court. Because of an amalgamation of several prior activist court rulings, mainly by this very circuit, roughly 90 percent of credible fear claims are approved by asylum officers and the claimants shielded from deportation, even though asylum status is ultimately rejected almost every time by an immigration judge. Unfortunately, by that point it’s too late for the American people, who are stuck with the vast majority of these claimants remaining indefinitely in the country. Yet rather than ending this sham incentive, the Ninth Circuit drove a truck through immigration law by asserting that there is now a constitutional right for even the few who are denied initial credible fear status and are placed in deportation proceedings to appeal their denials, not just to an administrative immigration judge but to a federal Article III judge for any reason.
In past cases, the courts merely twisted statutes and contorted their plain meaning. In this case, for the first time ever and in direct contrast to a ruling by the Third Circuit in 2016, the Ninth Circuit ruled that the immigration statute that denies the federal courts jurisdiction to hear such appeals is unconstitutional under the constitutional requirement of habeas corpus, thereby giving 7.8 billion people in the world habeas corpus access to our courts. This will allow numerous illegal aliens, including the brand-new ones entering now, to stay indefinitely while they litigate themselves into status. The ACLU, which of course led this lawsuit on behalf of a Sri Lankan migrant denied asylum, wasn’t kidding when it proclaimed, “The historical and practical importance of this ruling cannot be overstated.”
This is one of many recent violations of sovereignty doctrine, known as “plenary power doctrine.” This long-standing principle in the courts is that while aliens have due process rights against criminal punishment, they have no rights to litigate against deportation, which is a mere extension of sovereignty, other than the process laid out by Congress. This principle “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history … but a whole volume” (Galvan v. Press). The concept is “inherent in sovereignty,” consistent with “ancient principles” of international law, and “to be exercised exclusively by the political branches of government.” (Kleindienst v. Mandel).
What is so outrageous about this case is that Congress explicitly stripped the courts of any jurisdiction to hear such claims. The reason why the district judge, who was an Obama appointee, refused to even hear this case is because 8 U.S.C. §1252(e)(2) prohibits the federal courts (not to be confused with DOJ administrative courts) from hearing habeas corpus claims against expedited removal of those denied their credible fear claims unless of course they have a claim that they are a citizen or a legal permanent resident. In this case, the three Clinton appointees of this Ninth Circuit panel, Wallace Tashima, Margaret McKeown, and Richard Paez, ruled for the first time that this provision is unconstitutional and that the district court must hear the case.
The court used the Boumediene v. Bush decision, which created a right to habeas corpus for enemy combatants being held at Guantanamo Bay, as the basis for its decision. That decision in itself was an egregious warping of the Constitution, a decision that Scalia angrily predicted that “the Nation will live to regret.” However, the important distinction is that Boumediene was a case of indefinite detention, whereas this is a case where we are enforcing our sovereignty and getting rid of the person, who can live freely wherever he wants. Applying habeas corpus to deportation is bonkers even by the Boumediene standard.
Now that there is a circuit split on this revolutionary idea, court watchers on all sides predict the Supreme Court will take up the case. While conservatives are fairly confident that this will be added to the endless list of Ninth Circuit reversals by SCOTUS (although I have my concerns about Gorsuch in this case), conservatives need to realize the factors creating an emergency with sovereignty and the lower courts:
We’ve seen over and over again how lower courts create a legal, political, and policy momentum for creating new rights. If they are not nipped in the bud and delegitimized immediately, they wind up growing and eventually being codified, even if initially reversed by the Supreme Court. This has happened with almost every phantom right created by the courts and has already begun with immigration law. We are at the cusp of the courts doing with immigration what they did with abortion and gay marriage, even though it took years for the Left to win in those cases. All of the justices except for Clarence Thomas succumb to pressure to varying degrees and will eventually go along with much of the anti-sovereignty doctrine building in the lower courts.
Many conservatives are suggesting that we “fix” our immigration laws to stop the asylum fraud, among other problems at the border. What this case demonstrates is that courts are so radical they are not just twisting the wording of statutes, they are downright invalidating them by creating new constitutional rights to immigrate. They are even brazenly invalidating statutes that block the courts from hearing cases, as we saw with the TPS amnesty case. Keeping out and deporting aliens as well as defining court jurisdiction are two of the most unquestionable and categorical powers of Congress, and they are backed by case law dating back to our Founding. This is no longer about any one statute. There is no statute to fix. Remember, we already fixed our immigration laws in 1996. Many of the things we want to do, including kicking the courts out of these cases, were already done in 1996, including the statute at issue here. This law passed the Senate unanimously! Passing more laws while continuing to legitimize lower court supremacy won’t help. If we continue to agree that lower courts rule over immigration, no amount of congressional changes could help, because the courts will rule the changes unconstitutional. This is why it’s time to grab the bull by the horns and attack the notion of judicial jurisdiction over these issues to begin with. The Trump administration needs to begin pushing back against the courts.
There is something much bigger occurring here. Putting aside particular smaller areas of immigration law, the legal profession has now pulled the trigger on a long-standing goal of what they refer to as “applying constitutional norms” to foreign nationals, not just in terms of criminal proceedings, but in the context of immigration claims themselves.
Justice Robert Jackson, the great champion of due process and the dissenter in the Japanese internment case, described it this way: “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” Due process for aliens in the context of immigration decisions is whatever Congress says it is. As the court said in Lem Moon Sing v. United States, “The decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.” Liberals have been trying to attack this for decades and ensure that even the aliens we successfully deport expeditiously (increasingly a small number) can remain here indefinitely and tie up our courts with lawsuits. If we allow this game to continue, the flow at our border will make what Europe is dealing with look like child’s play.
Every week, we cede another piece of our sovereignty to unelected courts who are actually violating longstanding Supreme Court precedent. The conservative movement needs to push this administration to stand up and put the Supreme Court on notice to guard its own precedents and doctrines and that if it fails to rein in its own quite inferior courts, the administration will certainly not regard those decisions as superior to our own laws. Trump has no other choice.