The Supreme Court agreed to stay part of the injunction against Trump’s temporary immigration moratorium. This demonstrates just how crazy some of the lower courts have been on the issue of sovereignty. However, once again, Chief Justice John Roberts has shown that he is not anywhere near a full constitutionalist, and only three justices would have lifted the lower court injunction entirely.
While the news headlines indicate this is a big win for the administration, the relief granted by the Supreme Court is limited, and the ACLU will continue to rack up victories in the lower courts until the Supreme Court hears the case in October. Meanwhile, Congress can still act to reclaim sovereignty.
As we’ve noted many times, the Supreme Court should have issued a full stay on the lower court decisions, and the vote should have been 9-0. It is entirely settled law that the political branches get to decide who enters the country, and that includes those who have already been issued a green card as well as those who have never stepped foot on our soil. There is no precedent in our history for what the lower courts have done, and pending further review by the Supreme Court, a full stay would have been the prudent thing to do. That is the view of Justice Thomas, who was joined by Justices Gorsuch and Alito.
For more about why the president has full authority to exclude anyone for any reason, I refer you to some of my previous articles:
The majority opinion in the preliminary request to stay the injunction recognized the absurdity of what the lower courts did in granting standing to foreign nationals and an affirmative right to immigrate for random foreigners with no connection to the U.S. The problem is that the carve-out they gave for relatives of Americans, students, and states suing on behalf of their universities has opened plenty of ways for the lower courts to continue blockading the administration. The ACLU will fight the administration block by block and try to dredge up plaintiffs who meet this criteria.
Although the Supreme Court did say that “a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion,” the court nevertheless opened the door for more lawsuits. The six justices granted anyone with a “credible claim” to a relationship with someone in the U.S. the right to sue. Given that we have so much immigration, the ACLU will find plenty of clients out there to challenge any subsequent actions of this administration.
Justice Thomas, in his dissent, made it clear that no foreign national should have a claim on entering the U.S., and he made it pretty clear how he’d rule on the merits. He called out the other justices for keeping the injunction beyond the current plaintiffs at issue and taking the “additional step of keeping the injunctions in place with regard to an unidentified, unnamed group of foreign nationals abroad,” a class that has not been certified.
Thomas further laments how the courts are just further burdening the executive branch based on bogus rights and standing and will invite the ACLU to go back to the same repudiated judges:
Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt—whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. See ante, at 11– 12. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.
What is very disturbing is that John Roberts did not join Thomas’ dissent. This is part of a growing but silent trend I’ve been noticing in recent immigration cases wherein Roberts has been joining with the Left to steal our sovereignty.
On the plus side, it appears that Gorsuch is aligning himself with Thomas (even more so than Alito) on issue after issue. The bad news is that Roberts continues to drift to the Left, and Kennedy is not retiring. Thus we will continue to suffer from the tyranny of the lower courts on numerous issues, with SCOTUS granting us relief only in the most egregious cases.
The truth is, Congress can shut this down immediately. Congress can and must strip all lower courts of the ability to adjudicate immigration cases creating a right for any foreign national to enter the country. Forcing petitioners to go directly to the Supreme Court will severely limit the degree of stolen sovereignty we have now incurred.
Moreover, there is no excuse for the president not to completely shut down refugee resettlement. By definition, anyone who is not already in the pipeline has no connection to the U.S.
The lesson from today? The Supreme Court did enough good to prove why the courts must be stripped of their power over immigration but not enough good to rely on the high court for relief in the long run. Time for the elected branches to take back what is rightfully theirs.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.