While Jared Kushner is working assiduously to promote amnesty for some of the same criminal aliens for whom he just secured early release from prison, the courts are already repealing our immigration laws.
Among all the new rights created by courts in recent years, a judge just created a right for illegal aliens to receive advance notice of ICE deportations, even after they have final orders to be deported. In other words, criminals have a right to be tipped off so they can flee and remain elsewhere in the country while sucking us dry and committing more crimes.
There are over roughly one million aliens in this country with final deportation orders from immigration judges (not to be confused with Article III judges). These are people who harm our country and on behalf of whom we’ve already exhausted overgenerous and gratuitous notions of due process. One can imagine the millions of others that have evaded justice whom we haven’t even apprehended. It’s hard enough for ICE to secure a final deportation order. Yet now the federal courts are fighting trench warfare on every last criminal alien removal, making it impossible to deport anyone, even in slam-dunk cases.
On Thursday, California U.S. District Judge Cormac J. Carney, a Bush appointee, issued a temporary injunction against the deportation of 1,400 criminal legal aliens and 500 illegal aliens – all from Cambodia. He said that even though they all had final orders of deportation, ICE could not re-detain them for deportation without two weeks’ notice.
Judge Carney is the same radical in a robe who unilaterally declared California’s death penalty to be unconstitutional in 2014.
As I observed last week, the categories of offenses to trigger deportation for legal immigrants were set out in the 1996 immigration bill, which was adopted unanimously in the Senate and signed by Bill Clinton. Nancy Pelosi, Chuck Schumer, Dianne Feinstein, Dick Durbin, and James Clyburn all voted for it. That is the law of the land. Yet judges have now seized the power to nullify immigration law outright and rewrite it with their own conditions.
This is the other side of the immigration story. In many ways, interior enforcement is even more important than the wall. Even if we stopped all illegal immigration across the land border, we have many criminals and dangerous aliens from the past few decades already here and many more who overstay their visas or who commit crimes while here with a green card. ICE can easily remove them, but the courts are now fighting every last deportation from every angle, even if it means rewriting immigration law. Left-wing groups have convinced judges that these particular criminal aliens in California are somehow a protected class because they fled violence in Cambodia, but that doesn’t change the fact that these particular Cambodians targeted for deportation are criminals. The fact that they were fleeing persecution should make it all the more egregious that they bit the hand that fed them and returned our generosity with criminal acts. The overwhelming majority of Cambodians who came here in the 1970s fleeing Khmer Rouge lived law-abiding lives in America.
As the courts have said for 130 years, there are no limitations on the power of the political branches to deport any foreign national for any reasons without any judicial oversight. The only limitation on immigration enforcement is that we can’t indefinitely detain aliens just for detention’s own sake, but can certainly detain for the purpose of deporting. Among many settled cases, here is what the court said in Turner v. Williams in 1904:
No limits can be put by the courts upon the power of Congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation unless provision were made that the fact of guilt should first be established by a judicial trial. … Detention or temporary confinement as part of the means necessary to give effect to the exclusion or expulsion was held valid, but so much of the act of 1892 as provided for imprisonment at hard labor without a judicial trial was held to be unconstitutional.
Thanks to a previous egregious court ruling (Zadvydas v. Davis), over the strenuous dissent of Justice Scalia, ICE has been forced to release a number of criminal aliens because their home countries refused to repatriate them. Now that the Trump administration has made diplomatic progress in achieving cooperation, ICE is finally tracking them down and simply following up on the existing deportation orders. This is where judicial civil disobedience comes in.
Jessica Vaughan of the Center for Immigration Studies told me she was concerned that the courts are essentially creating a “two-week notice to disappear” for criminal aliens. “This is outrageous on an operational level and in the context of the law,” said the veteran analyst of interior immigration enforcement. “If a federal judge can block these relatively cut-and-dried deportations, why not every single deportation case? This is nonsensical. The deportation due process that Congress set up is not meant to provide deportable aliens with endless appeals without appropriate grounds. The federal judiciary seems bent on taking over the civil deportation process and creating rights for removable non-citizens that Congress never intended and Americans do not wish to underwrite or allow.”
Indeed, the Supreme Court has already said decades ago that any effort to eliminate the concept of deportation must be done through the political branches, not the courts. “[I]t would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government’s power of deportation. … It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities,” said the high court in Harisiades v. Shaughnessy (1952).
In 1893, the Supreme Court made it clear that the power to deport is just as unassailable as the power to exclude so long as the alien has not been naturalized. “The power of Congress to exclude aliens altogether from the United States or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” (Fong Yue Ting v. United States, 149 U.S. 707 (1893))
I couldn’t reach out to ICE for reaction because the agency is limited in media correspondence during the partial shutdown. While ICE could not respond to any media requests during the shutdown, the courts seem to have no problems operating 24/7 to subvert our sovereignty.
The problem of judicial amnesty is one of the many reasons why Trump would be insane to allow Jared to push him into a deal of “amnesty for a border wall.” If courts are voiding existing statutes that explicitly call for deportations, one can only imagine what would happen once the law is changed to blatantly shield a number of illegal aliens from deportation. They would essentially shut down deportations for everyone so that all aliens can be afforded an opportunity to apply for status. Then, a number of others will just come here on tourist visas and overstay their visas indefinitely while the courts shield them from any interior enforcement.
Instead of agreeing to amnesty, it’s time to double down on the original promise of 1996 – a promise Schumer and Pelosi agreed with – to stop all illegal immigration once and for all and to deport criminal aliens. That promise will never be actualized until we finally enforce the judiciary’s own settled case law on today’s activists disguised as judges.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.