Last month, when the Supreme Court allowed the president to follow immigration statutes regarding his temporary moratorium on refugees, I warned that the lower courts would continue their assault on our sovereignty.
Indeed, within days, the same Hawaii judge (District Judge Watson) who violated our sovereignty and was rebuked by the high court, demanded that the administration reflexively and categorically admit any grandparent, cousin, niece, or nephew of a relative residing in the U.S. (whether a citizen or alien). He also demanded that all refugees currently working with resettlement organizations be admitted to the U.S.
Wednesday, the Supreme Court once again ruled against the lower-court judge in part, but continues to open the door for an endless flow of migrants, stealing the sovereignty of the elected branches of government.
In late June, all SCOTUS justices ruled that the Trump travel ban can resume pending the outcome on the merits of the case. But a six-justice majority ordered the administration to temporarily admit all those with a “bona fide relationship” with U.S. relatives or institutions.
Justice Thomas, joined by Justices Alito and Gorsuch dissented and indicated that he would have tossed out the entire injunction because, as any constitutionalist knows, the president and Congress decide who comes into this country, not the courts. Further, Thomas warned that the same lower-court judges would slowly chip away at the order and litigate everyone into admission.
Judge Watson in Hawaii proved the point of Justice Thomas by flip-flopping on his own previous writing and demanding that all extended family of relatives in the U.S. be admitted. He also crowned private (taxpayer-funded) resettlement contractors king over our sovereignty by allowing them to continue resettling more refugees against the national will and the president’s order pursuant to statute.
The administration immediately appealed to the Supreme Court and Wednesday they agreed to lift the latest preliminary injunction from Judge Watson and allow the president to enforce the moratorium against extended relatives.
However, the high court only agreed to stay Watson’s injunction on the refugee policy, but allowed the ruling on extended relatives to remain in place pending the resolution of the … Ninth Circuit! Which means, that when the Ninth Circuit invariably rules with Judge Watson, we will be back in the same place.
Here’s the catch: Justices Thomas, Alito, and Gorsuch indicated that they would have stayed Judge Watson’s injunction entirely, allowing the president to determine which relatives he chooses to admit. Notice the growing pattern? Justice Roberts continues to join the Left on numerous immigration issues and is clearly indicating that he believes the courts have a substantial role in controlling immigration policy, albeit not as much as some of the far-left judges think.
Some legal apologists for the judicial institution might suggest that Roberts is merely being judicious in allowing the appeals process to continue without heavy-handed intervention from the Supreme Court. But putting aside the fact that Roberts has signed onto a number of other terrible immigration opinions this term (Maslenjak v. US, Lee v. U.S, Sessions v. Morales-Santana, to name a few), his “passive” approach in this case is dead wrong.
If we are to believe, as we are essentially taught, that the Supreme Court rules over the other branches of government (and even God and natural law), then they are surely supreme over the lower courts within the same department of government.
When lower courts step so far out of bounds and take over an area of law that settled court decisions have made clear is solely within the province of congressional statute, the high-court justices have an obligation to step in quash them immediately.
Somehow, the high court seems all too alacritous to step in to stay the few lower-court decisions with conservative outcomes (many Fifth Circuit decisions on abortion), yet somehow they are always passive even when, by their own admission, lower courts have jumped off the left cliff.
As I’ve warned before, given that the lower courts are going to chip away at this order, Trump should utilize the partial SCOTUS victory to expand the moratorium both in terms of duration and the number of countries it affects.
The order should cover all countries with a significant presence of terror outlets. Furthermore, with appropriation season in full swing, the administration should demand that Republicans prohibit funding for the issuance of any visa from those countries and for the refugee resettlement program. This will preempt the courts and stop them in their tracks.
Finally, we must recognize that, aside from the travel ban, the lower courts are blocking almost every deportation of criminal aliens. Unless something is done to systemically kick the courts out of the immigration issue once and for all, we are no longer a sovereign nation. And no, we have not won back the courts — there is still a clear 6-3 liberal majority on so many issues that matter. Even if Anthony Kennedy retires next year, we already know who will be the new “Kennedy vote.”
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.