Imagine if Alexandria Ocasio-Cortez or Rashida Tlaib got to single-handedly veto sovereignty legislation dating back to the 1880s just like a president could veto a new bill passed by Congress this session. Imagine if they could unilaterally abolish ICE and declare open borders, except, unlike a president, they wouldn’t have to stand for re-election. Well, that is exactly the situation this week with a single federal judge. Thanks to Republicans agreeing to the notion that judges – even lower court judges – have direct veto power over legislation, a foundational immigration law has just been “vetoed.”
KCUR-FM reports that on Wednesday, Judge Carlos Murguia of the U.S. District Court of Kansas ruled, based on a Ninth Circuit opinion, that 8 U.S.C. §1324, the law prohibiting someone from “encouraging” or “inducing” illegal immigration, is an unconstitutional infringement upon the First Amendment. In doing so, Murguia vacated the convictions of two illegal aliens, Jose Felipe Hernandez-Calvillo and Mauro Papalotzi, who were convicted in August 2018 by a jury for conspiring to encourage illegal aliens to remain here through employment at a drywall company in Lawrence, Kansas. Four others were originally indicted by a grand jury in 2015.
This law has been on the books in some form for over 130 years, and numerous federal courts have upheld convictions based on §1324. Yet one judge, who worked for an open-borders group named El Centro Inc. and whose sister Janet Murguia is president of La Raza (now called UnidosUS), suddenly thinks conspiring to harbor and encourage illegal immigration violates the First Amendment. Carlos’ sister Mary (who is an identical twin to Janet) is a federal judge on the very Ninth Circuit Court from which he drew this opinion. Judge Mary Murguia once recused herself from a trial involving pro-enforcement Sheriff Joe Arpaio because of her sister’s leadership of La Raza. Carlos should have done the same thing this week in this case, which involves a law that directly conflicts with the work with the open-borders groups his family is associated with.
Rather than rule based on the law, he decided to adopt the ruling of the Ninth Circuit (which doesn’t have jurisdiction in Kansas), which ruled last December that §1324 is “unconstitutionally overbroad” because it “criminalizes a substantial amount of protected expression.” “The court adopts (the 9th Circuit’s) analysis in full and agrees that (the law) on its face is overbroad under the First Amendment,” said Murguia in a brief bench ruling first reported by KCUR-FM.
This assertion is ridiculous, because the law clearly refers to engaging in subversive and fraudulent activities to encourage or enable actual individual aliens to remain in the country, not mere political advocacy for liberal immigration policies in the abstract. It’s like saying that someone who hates high taxes or gun control laws and advocates against them is the same as a person who actively assists tax cheats and gun felons in achieving the end goal of the criminalized behavior.
The 1952 INA (8 U.S.C. § 1324(a)(1)(A)(iv)) calls for felony prosecution for anyone who “encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” Subsection (V)(I) prohibits “any conspiracy to commit any of the preceding acts.” The two defendants in this case were convicted on both counts. This law passed the Senate unanimously!
The forerunners to this law were the Contract Labor Law of 1885 and the 1891 Immigration Act. The 1885 law made it unlawful to “in any way assist or encourage the importation or migration of any alien” for the purpose of contract labor. Section 3 of the 1891 Immigration Act made it a felony to “assist or encourage the importation or migration of any alien by promise of employment” through advertisements.
Other circuits have long recognized this law as completely legitimate. “Harboring, within the meaning of §1324, encompasses conduct tending substantially to facilitate an alien’s remaining in the United States illegally and to prevent government authorities from detecting his unlawful presence,” wrote the Second Circuit in 1999. “Such facilitation may be attempted through a wide range of conduct.” (United States v. Kim, 193 F.3d 567, 574 (2d Cir. 1999).) The Fifth Circuit has ruled that Congress intended for §1324 to “broadly proscribe any knowing or willful conduct fairly within any of these terms that tends to substantially facilitate an alien’s remaining in the U.S. illegally.”
So how could a single judge who has a family history of open-borders activism be allowed to veto such long-standing and universal laws? The answer is that he has no such power other than what the other branches are willing to cede him.
The concern here is that this will not only protect employers who knowingly help illegal aliens get around our immigration laws, but it will also essentially legalize sanctuary cities. Throughout the county, sanctuary cities are taking active steps to thwart immigration law. We would never tolerate this for other federal laws concerning American criminals. Why should illegal aliens have special privileges?
Rather than shirking from §1324 prosecutions, Trump’s DOJ should aggressively go after sanctuary cities, especially in areas where there are saner federal judges. A judge has no power to “strike down” or veto statutes he or she believes are overly broad. If there is a case that concerns pure speech or advocacy without any conspiracy or action taken to encourage illegal immigration, then it is within the prerogative of a judge not to convict the person. That is judicial power. But judges have no ability to say that the statute can’t be applied even when an action is involved because, in their view, the text of the law might rope in speech in other cases. To believe otherwise is to concoct an entirely new level of judicial veto that our Founders explicitly rejected. This is the difference between judicial review and judicial supremacy.
Finally, it’s important to remember that this is yet another example of judges attempting to fully nullify long-standing immigration law. Some on the Right believe that Congress needs to pass new laws in order to end illegal immigration. It’s simply not true. We don’t have a law problem; we have a judicial supremacy problem. The only question is whether the other branches will give this fake power full effect.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.