Thomas Jefferson told us in the document we celebrated this week that we have a right to be governed by officials “deriving their just powers from the consent of the governed.” Yet 243 years later, our governing elites believe that an unelected and life-tenured Seattle-based judge can dictate to the entire country that we can no longer regulate who comes into our country and who is released into our communities.
This latest radical judicial ruling, in a series of stupefying rulings attacking the foundation of our sovereignty and immigration laws, demonstrates once again that we don’t have an immigration law problem; we have a judicial supremacy problem.
On Tuesday, with the flick of her pen, a random federal judge in Seattle expanded the judicially created catch-and-release loophole from family units to all single adults. U.S. District Judge Marsha Pechman, a Clinton appointee, nullified the 1996 immigration law mandating detention of those coming here seeking asylum and created a Fifth Amendment right for them to be released on bond. She went a step further and required that all those within custody receive bond hearings within seven days, that the proceedings of the immigration court trials must be recorded, and that the immigration judges must provide explanations for the basis of denying bond. Also, in contravention to 130 years of case law, she placed the burden of proof on the government, not on the alien, to show why these people shouldn’t be released.
There are no words in the English language to describe the radical nature of this ruling. Section 235(b)(1)(B)(ii) of the Immigration and Nationality Act, which passed the Senate unanimously in 1996, says that those seeking asylum “shall be detained for further consideration of the application of asylum.” Now, in a growing trend among judges in the district courts within the Ninth Circuit, a judge is saying that the law itself violates the Fifth Amendment. Pechman claimed that this administration’s implementation of the 1996 law violates “50 years of statutory and case law supporting the right of persons detained for non-criminal reasons to be released upon posting bond.”
In fact, her application of bond hearings to aliens within the context of immigration proceedings is a violation of settled case law. As the court established in U.S. v. Ju Toy (1905), “The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate.” There is no Fifth Amendment right because one cannot unilaterally assert jurisdiction before being admitted to the country. Jurisdiction for constitutional rights is a legal distinction, not a physical one.
Judge Pechman wrote that denying bond hearings is a violation of due process, but due process for aliens in the context of immigration decisions is whatever Congress says it is. As the court said in Lem Moon Sing v. United States (1895), “The decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”
The court therefore said that one cannot assert that “if the alien is entitled of right, by some law or treaty, to enter this country, but is nevertheless excluded by such officers, the latter exceed their jurisdiction, and their illegal action.” How ominously the court warned: “That view, if sustained, would bring into the courts every case of an alien claiming the right to come into the United States under some law or treaty, but who was prevented from doing so by the executive branch of the government.”
Indeed, that is where we are today!
President Trump is going to have to recognize at some point, a recognition he should have internalized with the census ruling, that he must draw a line on lawless judges. He keeps asserting that our laws are broken and that they need to be changed. But the reality is that our laws were designed to prevent this very rush at the border, yet judges are now saying our sovereignty laws are unconstitutional.
The Ninth Circuit earlier this year ruled another provision of the 1996 law unconstitutional, even though Congress explicitly stripped the courts of jurisdiction to hear such cases. Through every stage of the immigration process and in every class of immigration filings, the district and circuit judges within the Ninth Circuit keep playing a game of “catch me if you can” with the Supreme Court. They create a right to bond hearings in one case, and it will take at least four years for the high court to slap it down. But then rather than applying the rationale to every other case, lower court judges continue to mandate bond hearings in slightly different cases. Meanwhile, thousands of aliens are irrevocably released into our communities. This cannot continue.
Just this week, the Ninth Circuit ruled that Trump could not build a wall with defense funding. Trump has no choice but to assert executive power and finally demonstrate that it is the courts that are engaging in civil disobedience against immigration laws. If any district judge can legislate any new law he wants, there is quite literally no purpose to Trump’s presidency. He has agreed to halt dozens of policies in which he was merely countermanding a lawless action of a predecessor, thanks to the courts. If he can’t even end Obama’s unilateral executive actions, then we as may as well invite Obama himself back to the White House.
For over a year, even right-leaning commentators have been wrong about the border crisis. They are suggesting that we can’t secure our border until we pass new laws while they continue to miss the point that we already have laws against illegal immigration, especially the ones strengthened in 1996. If we agree that judges have the power to nullify them, there is nothing about the new proposals that will change the game. What laws could possibly be drafted that are stronger than the ones written already that are ignored by the executive branch and violated by the judicial branch? If we keep agreeing that courts have such power, then no new statute can rectify the problem.
Either we push back against judicial supremacism, or we have no country left. There is no middle ground.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.