Flag with citizenship papers.

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Chapter four of my book, “Stolen Sovereignty,” begins with a quotation from one of Antonin Scalia’s final speeches in which he said that he couldn’t “imagine how you can go any further” down the “slippery slope” of judicial tyranny than creating “the right to same-sex marriage.” To that point, I responded as follows:

Sadly, there is one final step on the inexorable road to judicial autocracy — creating an affirmative right for foreign nationals to immigrate here and steal citizenship for their children. This eventuality, which is already at our doorstep, will harm our society and economy, and abjure our sovereignty — all without the people’s consent.

The same judges who repudiate the Constitution as written and call upon judges to do “what is sensible,” if left to their own devices, will discover these new rights for illegal aliens. They will discover an affirmative right to immigrate and render everything our Founders and early courts said about sovereignty obsolete and inapplicable in the modern era. Yes, we are headed to a time when courts will issue judicial amnesty, even if the political branches are committed to enforcing the laws. 

The courts are an existential threat to our future as a civilization and a nation-state. If conservatives don’t immediately address the growing judicial crisis, the entire preamble of the Constitution — what is left of it — will apply to all 7.2 billion people in the world. That is why I have chosen to dedicate the longest section of this book to judicial tyranny as it relates to immigration and sovereignty.

That moment, folks, has arrived.

As President Trump issues executive guidance to Department of Homeland Security officials to restore adherence to immigration statutes as opposed to the callous violation of laws by past presidents, the legal profession is seeking to outlaw deportations. If you look carefully at how the ACLU, liberal politicians, and the media are opposing the deportations, they are not merely expressing political opposition to reclaiming national sovereignty; they are saying that deportations are unconstitutional. Yes, our Constitution is unconstitutional.

In any other era, we would laugh off these suggestions. But in this case, the courts have already created an affirmative right to immigrate for those who never stepped foot in our country. As we’ve noted in our long series of articles on Trump’s executive memos, the courts weren’t merely overturning Trump’s executive guidance (after all, his memo was backed by at least seven statutes), they were overturning statute, 200 years of case law, and the entire essence of the social compact that dictates only the people’s representatives — not the courts — can make decisions on immigration.

Granting amnesty to illegals already in the country is not just an extrapolation from what the courts are doing, it is also included in their existing 'opinions.'

At the core of why the courts had previously said that the judiciary has absolutely no right to second-guess the immigration policies of the political branches is because any non-citizen not admitted into this country with the permission of statutorily assigned immigration and customs officials is as if that person is standing outside of our border. The entire notion of the right to a habeas corpus petition is that a person has due process rights when being detained by government. But a foreign national in this country against the consent of the people by definition is not here. The “corpus” is there — abroad — not on our soil.

This distinction borne out of settled case law is at the core of the case I make in “Stolen Sovereignty” for why automatic birthright citizenship for illegal aliens is unlawful. They are literally considered as standing outside our soil for purposes of due process rights to immigrate and are certainly not “subject” to our jurisdiction.[1]

Nonetheless, over the years, the entire legal profession has hinted at granting automatic birthright citizenship. Now they have taken this breach in the Constitution a step further by bestowing all 7.2 billion people in the world with a potential due process right to immigrate, thereby forcing the government to present evidence why a person was excluded. Granting amnesty to illegals already in the country is not just an extrapolation from what the courts are doing, it is also included in their existing “opinions.”

And it’s not just the 9th Circuit. Judges everywhere are overturning settled law and granting due process rights in a “substantive” way to illegals that would create an affirmative right to remain in the country.

There are a couple of other ominous signs as well:

  • The courts are clearly using Trump’s presidency and the perception that he is an authoritarian to strike out against immigration laws that are written into statute. Most people don’t realize that Trump is merely following law, and the courts are therefore able to use the public protests to give off the illusion they are striking down something anomalous and lawless when in fact the opposite is true. Ruth Bader Ginsberg’s recent interview praising protesters makes it clear what the average judge on the lower courts is thinking.
  • The ACLU is already filing briefs codifying the term “Dreamers” as if Obama’s amnesty is a statute and not contrary to statute. Courts are referencing the “Dreamer” status as well and Trump’s reluctance to get rid of it will further cement their status as having a legal claim (not just an emotional one) on remaining in the country. The fact that the 9th Circuit is forcing Arizona to issue them driver’s licenses further greases the skids for broad judicial amnesty.
  • The California Supreme Court has actually allowed an illegal alien to practice law and litigate on behalf of other illegals! Again, this is not an aberration. The legal profession has essentially projected their political views about illegal immigration into law.
  • Any day now, the Supreme Court will likely uphold a 9th Circuit ruling in Rodriguez v. Jennings, mandating that thousands of illegal aliens be released from detention on bail, essentially ensuring they disappear into the population.

Time for Congress to launch a counterattack

Congress is the most important body of government when it comes to protecting the national sovereignty, and it’s time they get back on the playing field. Here’s how:

  • Congress should begin invoking its Article III Section II powers to strip at least the lower courts of the authority to hear immigration cases. Any appeals from the administrative judges (DOJ’s Board of Immigration Appeals) would have to be taken directly to the Supreme Court.
  • Alternatively, Congress could reroute all immigration cases to the 8th Circuit, which is by far the most conservative.
  • With a Republican in the White House there is no excuse for Congress not to use the power of the purse to steer immigration policy. In the upcoming April budget bill, Republicans should prohibit funding for the refugee program and for the issuance of visas to the seven countries included in Trump’s order for the remainder of the fiscal year.
  • Congress must defund the DACA amnesty.
  • They should also block funding to DHS for the purpose of complying with any court order that runs contrary to existing statutes that prevent courts from adjudicating certain immigration petitions.

After all, what are the courts going to do? Place an injunction on the lack of funding?

Unless Congress does its job, by the end of the year the courts will do to national sovereignty what they have already done to marriage and human sexuality.

horowitz conservative conscience


[1] Shaughnessy v. Mezei, 345 U.S. 206, 218 (1953); United States. Kaplan v. Tod, 267 U. S. 228, 230 (1925); United States v. Ju Toy, 198 U. S. 253, 263 (1905); Nishimura Ekiu v. United States, 142 U. S. 651, 661-662 (1892).

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