That was quick.
Last week, I outlined a plan for the president to clamp down on refugees and other immigration problems, notwithstanding the hamstringing by the courts. Now it appears that the administration is so obsequious to the courts that it will actually increase the number of refugees, rewarding the lower courts (which are below the executive and legislative branches, not above) with gratuitous over-deference.
Just before the Memorial Day weekend, the New York Times reported that the State Department plans to lift the cap on refugees, which could result in a spike in refugee intake – “from about 830 people a week in the first three weeks of this month to well over 1,500 people per week by next month.” Particularly jarring are the reports that refugee resettlement contractors are now anticipating an intake of as many as 70,000 refugees for this year. We’ve “only” brought in about 15,000 since the inauguration and about 45,000 since last October (beginning of the fiscal year). For State to reach the 70,000 number by October would mean a surge in refugees for the remaining four months of the year. There is simply no reason for this act of capitulation.
Even if you agree to the erroneous premise that the other branches of government must accede to the demands of lower courts, especially on issues pertaining to sovereignty and national security, there is no reason for the Trump administration to actively bring in more refugees. For a number of reasons, there is nothing stopping the president from continuing his moratorium on refugees, even if we accept judicial tyranny over the other aspects of his immigration plan.
- Unlike the moratorium on visas, the refugee pause applied to all countries equally. More than half of refugees are not even Muslim. There is no affirmative right to have a refugee policy, even if we agree to the fallacious premise that once we accept refugees, that acceptance must be applied equally.
- The president has plenary power to set the refugee cap. Federal law, 8 U.S.C. §1157(a)(2), gives the president unilateral authority to set the cap at any number and determine the geographical priorities of refugee policy.
- As we noted last week, there is no specific case or controversy for this administration to follow as it relates to the court’s order. Unless and until the court goes a step further and downright mandates a policy of refugee intake and actually sets a new cap, the president has no obligation to admit anyone beyond a specific plaintiff with legitimate standing who obtained relief from the court. There is certainly no reason for Trump to bring in 1,500 refugees a week. There is no such court order. He could bring in 50 a week pending a future lawsuit.
Not only have the other branches of government shown no signs of fighting back against the courts, they are so overly deferential to them that they act beyond what the courts even “required” of them. They have crowned the lower courts king over the future orientation of our country and citizenry, in violation of the social compact and the preamble of the Declaration of Independence, which requires governance by the consent of the governed. Now, unelected judges can determine who becomes a citizen.
A lot of this is the fault of GOP leaders in Congress who have refused to simply defund refugee resettlement, thereby backing up the president against the courts. But it’s also the president’s fault for signing the budget bill. Also, all reports indicate that the president never even asked GOP leaders to defund refugee resettlement, and indeed, the president’s own aspirational budget blueprint for next year allocates enough funding for 50,000 refugees.
At some point, it’s not even the fault of the courts. They were given no power over the purse and no enforcement mechanism, yet the other branches have ceded all authority to them. The other branches won’t even brush up against the courts and at least make them issue another order governing each of their actions. Thus, they preemptively surrender on the entire refugee issue – above and beyond the subject matter of the actual litigation. Of course, the judges will gladly accept that power, especially when they will never face any reprisal for their legislating, given that they don’t stand for election.
How far we have fallen from the founding when Alexander Hamilton dismissed concerns over judicial encroachments as “phantom.” He asserted with “certainty” that “from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force” any attempt by judges to usurp political power would never even amount to an “inconvenience.”
The president must finally show the judges that they indeed only exercise judicial power and have no capacity to support their usurpations.
- He should demand that Congress immediately pass a supplemental funding bill cutting off funding for refugee resettlement and use the savings to build the border fence and implement an exit-entry visa tracking system.
- He should also demand a judicial reform bill that would bar all lower courts from adjudicating a case designed to bring in foreign nationals rejected by the political branches of government. Alternatively, Congress could craft a bill routing all immigration cases to the Eighth Circuit Court of Appeals, which is dominated by conservative judges.
- The president should demand that Congress pass a bill (H.R. 6110) from Rep. Scott Perry, R.-Pa., that would require the support of the state legislature and governor in a given state for the federal government to enact a resettlement plan.
This is the type of leadership for which Trump was elected. The judicial swamp is perhaps the sickest part of the political wetlands. Unless it is drained, President Trump can kiss his agenda goodbye.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.