An alien who seeks political rights as a member of this nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect of a matter so vital to the public welfare. ~U.S. v. Ginsberg, 1917.
There was once a time when the Left relied on the executive branch to thwart immigration laws and make denizens of illegal aliens. Now that there is a president committed to actually enforcing the spirit and letter of our sovereignty laws, the Left has successfully gotten the courts to codify prior executive derelictions as the law instead of our actual statutes.
Despite being slapped down multiple times by the Supreme Court, lower court judges continue to violate rules of standing and create rights for foreign nationals to come here in multiple ways. They have no such power, but until the executive branch stands its ground and refuses to enforce those rulings, Obama’s third term will continue. And no, the Supreme Court will not put an end to this charade.
It’s truly hard to conjure up a greater judicial power grab than for a judge to demand that the Trump administration grant green cards to foreign nationals who seek to access welfare programs. It is settled law that foreign nationals have no standing for the right to immigrate or the right to seek welfare because they are not rights. Moreover, the public charge laws have been on the books since colonial times and have been codified by Congress since 1996. Those laws were never followed. When Trump implements just a modest enforcement of what those existing laws were trying to accomplish, a single New York judge called it “repugnant” and said it has “no rational basis” and issued a nationwide injunction against it in October. Irony might be dead, but the state of New York, which is the plaintiff in this case, was among the first to implement laws to prevent impoverished immigrants from landing.
Freeze-frame. Right at this point, the Trump administration should have declared the ruling null and void the same way the judge declared an injunction on Trump’s implementation of foundational law. Yet, unlike the judge, he actually has the power to enforce this because the issuance of green cards is an executive function. Nobody is discussing criminally punishing immigrants, which would intersect with judicial power. The case at hand is one of immigration benefits, which is solely within the province of executive power. That is how separation of powers works, yet now that the Trump administration has conceded that every district judge ruling, no matter how illegal, supersedes executive power, we have district judges sitting atop the political food chain, even when the Supreme Court already sided with the administration.
Thus, even after losing in higher courts, the Left brazenly comes back for another injunction. On Wednesday, the liberal Second Circuit Court of Appeals upheld the injunction of New York District Judge George B. Daniels against the public charge policy, despite the fact that two of the most liberal circuits – the Ninth and the Fourth – have already stayed parallel injunctions issued by district judges in Washington and Maryland respectively. Not to mention the fact that the Supreme Court has already ruled the president can deny entry to anyone and place conditions on entry, per 8 U.S.C. 1182(f). For the administration to obsequiously accede to a New York judge in a case like this after the Ninth Circuit expressed in categorical terms last month that the “Executive Branch has been afforded the discretion” to continue would be an exercise in self-immolation.
Consider the absurd outcome here. Two of the most liberal circuits have already taken off nationwide injunctions, but we are to believe that another circuit can empower a New York judge to issue his own nationwide injunction? Is it that hard for Attorney General Barr to issue a statement and note that, per Clarence Thomas’ opinion, this practice is unconstitutional? Unless a different course is taken, if 93 district courts say Trump is right and one says he is wrong, the policy can still be enjoined nationwide.
Moreover, nobody is even paying attention to the absurdity of the standing in this case. The plaintiffs are the states of Vermont, New York, and Connecticut. Even if Trump were wrong on the merits of the law, how could states get standing to demand more immigrants to access welfare? The Supreme Court in Arizona v. U.S. already said that immigration policy is so federal in nature that a state cannot even complement and supplement the federal enforcement policy. But now courts are saying that states are so strong they can get standing to demand the feds bring in more immigrants. Then again, these same courts are saying states have power to thwart enforcement against illegal immigration; they just don’t have power to help enforce it. Up is down and down is up.
This is the point so many of the conservative optimists in the judicial game are missing. They feel that because Trump is appointing a lot of judges and because the Supreme Court is saner than some of these lower courts, the judicial resistance will eventually be neutralized. Just stay the course and keep appealing. But now the left-wing judges are playing a game of “heads we win, tails they lose,” whereby any district judge can place an injunction on any Trump policy, even when higher courts already ruled on the same principle the other way. This is how the Left has successfully gutted the so-called travel ban from certain Middle Eastern countries despite a clear victory in the Supreme Court. This is also how it has continued massive gun restrictions in some states, even after the Heller decision, and how it has continued advancing contraception mandates on employers even after the Hobby Lobby victory at the Supreme Court.
This was also borne out in a Michigan case where a single district judge, Mark Goldsmith, has been protecting 1,500 Iraqi criminals, including murderers and rapists, from deportation. He issued three successive injunctions on ICE actions taken to detain and remove them, yet despite the fact that the Sixth Circuit reversed him, Goldsmith kept issuing new injunctions. Finally, last week, Judge Jeffrey Sutton, writing for the Sixth Circuit panel in Usama Hamama v. Rebecca Adducci, showed his frustration. “For the reasons offered in our last opinion and others elaborated below, the district court lacked jurisdiction to enter its class-wide preliminary injunction. … The district court had no jurisdiction to do what it did.”
Statute (8 U.S.C. § 1252(f)(1)) plainly says lower courts lack jurisdiction to issue these rulings, yet they continue to do so anyway and will undoubtedly continue demanding bond hearings for more aliens in custody, even though the Supreme Court just ruled on this last term.
We are on the cusp of this happening again with Trump’s refugee order requiring state and county approval for refugee contractors to engage in resettlement in a given jurisdiction. Yesterday, a Maryland judge indicated in oral arguments that he was likely to place an injunction on that policy. In a rich irony, U.S. District Judge Peter Messitte kept asking the DOJ lawyer, “On what authority is the president acting?”
But nobody, including the judge, ever asks what authority a judge has to grant refugee status or to grant standing to taxpayer-funded refugee resettlement contractors to get more taxpayer funding. Much like with Planned Parenthood, judges are creating a right for private groups to get taxpayer funding and then using that funding as means for standing to sue against any policy related to it because … it will affect their revenue!
As for the president’s authority over refugees, the president has double authority – both the generic authority to shut off or condition certain forms of immigration, as upheld by the Supreme Court in Trump v. Hawaii, and the specific 1980 Refugee Act, which provides the president with full authority to set the refugee cap to anything from zero to infinity. Plus, statute actually requires collaboration with states at every step of the process, yet like everything else in immigration law, it has been ignored by prior presidents.
Some in the Trump administration might take solace from a Fifth Circuit ruling yesterday reversing an injunction of an El Paso judge on using DOD military construction funding for a border wall. But I’ll do you one better. The sacred Supreme Court already ruled in a previous case out of California that plaintiffs lack standing for such a lawsuit, yet the El Paso judge proceeded with this case anyway. Likewise, the Fifth Circuit will not deter the next district judge from doing the same.
The entire judicial supremacy game is built upon an erroneous premise of judicial power and lacks any consistent guiding principle other than one constant: the Left wins all the time. All of the landmark left-wing opinions on abortion and gay marriage themselves were all reversals of previous settled law and judicial precedent. Thus, there are no permanent victories for the Right in the court system.
However, all of this is only because we let it happen. The fact that the Founders gave no enforcement mechanism to the courts is not a bug, it’s a feature. The Founders gave the power of enforcement to the executive branch and the power of the purse to the legislative branch to check the judicial power, the same way the power to decide individual cases under the law was given to the judicial branch to check the other branches.
This is exactly what Alexander Hamilton meant when he said, “[The judiciary] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” The Founders would be shocked were they to come alive and see that the stronger branches of government today tolerate any and every abuse of power from the judicial branch of government.
Trump must remember that unless he uses his lawful powers to push back against the courts, the remainder of his presidency will be that of a lame duck.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.