Just how bad are the federal courts? Even the Obama administration is appealing a Ninth Circuit ruling that will give tens of thousands of illegal aliens, including violent criminals, the ability to remain in the country indefinitely. Yes, the federal courts are to the left of Obama on immigration, and if the Supreme Court does not overturn this decision, we will languish from judicial amnesty, even under a Trump presidency. This, all from the unelected branch of government, which, pursuant to settled law, has no authority to keep aliens in this country against the consent of the people. We are now reaching the final frontier in judicial supremacy that I warned about in Stolen Sovereignty — the granting of affirmative rights to illegal immigrants.
Last October, the Ninth Circuit Court of Appeals upheld a district court’s injunction against the Obama administration’s continuance of existing detention policies. Violating 200 years of congressional plenary power over immigration and the sovereignty of the entire nation, the court ruled that certain classes of illegal aliens and criminal/terrorist [legal] aliens must be afforded a bond hearing and an opportunity to escape detention pending the outcome of their immigration cases. Furthermore, the court ruled that unless the federal government can prove that each individual alien is a known flight risk, the administrative immigration judge must release the alien on bail.
The Supreme Court will hear oral arguments in this case today. Unless Justice Kennedy and Chief Justice Roberts — who are shaky on congressional plenary power over immigration — agree to overturn the Ninth Circuit, the army of immigration lawyers will be able to litigate even the worst of the worst into de facto amnesty.
You might be wondering how in the world illegal aliens who are in this country without the consent of the people can obtain standing to sue for the right to remain in the country? And let’s face it, given that illegal immigrants are the consummate flight risk, that is exactly the result of affording them the opportunity to post bail.
Well, thanks to our broken judicial system, and their misconceived role in immigration, a handful of asylum seekers and criminal aliens who should have been deported instead managed to litigate themselves into legal permanent resident status over the years. Those individuals, in turn, launched the class action lawsuit on behalf of thousands of illegal aliens. Here is a description from SCOTUS Blog of two of the plaintiffs:
Brought to the United States as an infant, class representative Alejandro Rodriguez is a lawful permanent resident who had been employed as a dental assistant. Based on criminal convictions for possession of a controlled substance and “joyriding,” the U.S. government sought to remove Rodriguez from the United States. While Rodriguez was resisting removal, the government detained him for more than three years without a bond hearing. An immigration court ultimately granted Rodriguez “cancellation of removal,” and he remains in the United States.
Another class member, a torture victim from Ethiopia, sought asylum in the United States. The U.S. government detained him on the ground that his proof of identity was insufficient because, in the words of a Department of Homeland Security officer, “[t]here is an apparent correlation with all the Somalian Detainee’s [sic] that present [sic] a paradigm of deceit and paralleled ambiguity of events and identity.” A bond hearing would have allowed the class member to point out that, among other things, he was not from Somalia. An immigration court eventually granted asylum to this class member.
Thus, the citizens of this country are sitting helplessly while their sovereignty is stolen and statutes duly passed by their representatives to keep these people out are now abrogated by unelected judges who manifestly lack jurisdiction over these issues. These people can, in turn, sue to allow other illegal aliens to remain in the country.
Federal immigration law is unambiguous as it relates to those who cross our border illegally, even if they are attempting to litigate themselves into a category of permissible aliens: “[I]n the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding.” [8 U.S.C. § 1225(b)(2)(A)] Moreover, statute gives full discretionary authority to immigration officials to detain all those presumed to be here illegally “pending a decision on whether the alien is to be removed” [8 U.S.C. §1226(a)] and downright mandates the detention of classes of criminal aliens [§1226(c)].
There are numerous other provisions in law that grant the attorney general and immigration officials broad discretion to ensure that illegal aliens are not released pending their removal. Unfortunately, Obama violated the spirit of the law in many instances to allow non-criminal aliens to disappear into the population. However, in this case, the courts are trying to invalidate the few instances where Obama was following the spirit and letter of the law.
The letter and spirit of the key 1996 immigration laws are clear as day. Congress provided for the detention of illegal aliens pending removal because they cannot be treated like domestic criminals and released on bond — otherwise they disappear into our country and we lose our sovereignty. At the time, Congress even exercised its “jurisdiction-stripping power,” to prevent the courts from overturning any detention for these categories of aliens. This is a power I’ve long advocated for Congress to use more extensively; the 1996 law being an example of it in action.
In came the Ninth Circuit in Rodriguez v. Robbins (now Rodriguez v. Jennings), which illegally circumvented the jurisdiction stripping provision. In a sophomoric and transparently lawless opinion, the court essentially said that because the law as plainly written would violate the Constitution, it therefore must be interpreted to allow for a bond hearing after six months of detainment. Thus, the Ninth Circuit, which never had any compunction about nullifying congressional statutes, rewrote the law so that the court’s decision would not run amok the jurisdiction stripping provision, which prevented the judiciary from hearing a case to overturn the law.
The result of this case is that hundreds of thousands of illegals can pour over the border, assert some sort of concocted right to remain here, and post bail within six months never to be seen again. Instead of the burden of proof being placed on the alien to demonstrate admissibility, as is required by our most basic laws governing sovereignty, the burden is now placed upon the citizenry to demonstrate that each individual is a flight risk.
It is also important to note that this is not a case of indefinite detention, an act that we wouldn’t want to implement even for non-citizens on our shores. In reality, the government is trying to deport them, but there are so many criminal aliens and so few judges that it often takes more than six months to go through deportation proceedings. Were these aliens to be released on bail, they would endanger society. Ironically, by affording them their procedural due process against deportation, which takes a long time due to the mass invasion of criminal aliens, our immigration officials are accused of violating their rights. If these people want to voluntarily depart to their country of origin, nobody is stopping them.
Today’s hearing will be the first test to see if the Supreme Court recognizes congressional plenary power over immigration, the power of Congress to safeguard our sovereignty, and the respect for statutes as written. In a sane world, the Ninth Circuit would be reversed by a unanimous opinion. Sadly, the impervious blue firewall on the court will rule with the liberal political outcome of any important immigration case, the law and the Constitution be darned. Moreover, Kennedy has written some bad opinions on this general topic in the past and Roberts is unreliable on the plenary power doctrine. The grim reality is that even if the two Republican-appointees rule the right way, a 4-4 split would uphold the lower court’s ruling.
This case is another superlative example of why Congress must assert itself over the courts by using its power to “except and regulate” the jurisdiction of the courts. It’s time to kick the courts completely out of immigration enforcement unless a plaintiff can legitimately demonstrate that he has a right to citizenship. This applies doubly to the lower courts and particularly to the Ninth Circuit. Congress should be doing this anyway on a number of fronts — why not start with an area of law for which the courts never controlled? 
It’s time to face a stone-cold truth: if we are going to continue perpetuating this myth that the unelected federal judiciary has supreme and exclusive jurisdiction over every major social and political question, and is the sole and final arbiter of constitutional interpretation — including the very ability of a nation to remain sovereign and control its own future and the orientation of its own society — we have already lost the war for this country.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.