The view held by Democrats that the entire world is entitled to come here and demand access to our health care system on the public dime is not just a political aspiration. They now believe it’s a legal right strong enough to give them standing in court to sue our president. As such, now is the perfect test for the president to see whether he will follow long-standing immigration law or an illegal order by an Oregon judge.
In 1996, Congress passed the latest public charge law on a bipartisan basis to ensure that those entering the country on long-term visas are not likely to live on welfare. There is no more common and costly charge than health care, but previous administrations have failed to enforce the law, as has been the case with so many parts of immigration law.
To that end, the president issued a proclamation in October ordering that effective November 30, most immigrants seeking entry must be “covered by approved health insurance … within 30 days” of entry, or “possess … the financial resources to pay for reasonably foreseeable medical costs.” The criteria for what constitutes coverage are very loose. The applicants can hold any catastrophic plan or show the ability to pay out of pocket. Or they could show they have a clean bill of health. This is not like an Obamacare mandate on immigrants; it’s simply to say that taxpayers must not be saddled with a substantial bill.
In comes Michael Simon, a federal judge in Oregon, over the weekend and unilaterally vetoes our sovereignty and foundational immigration laws by saying the president overstepped his boundaries applying the public charge law. He issued a nationwide injunction for four weeks. The Constitution accords Simon the power to do this the same way it accords me the power to enjoin Trump’s Twitter account. In other words, he has no such power, nor does he have the power to enforce it.
First, let’s tackle the issue of standing. Judges can’t simply create a case or controversy and use that as a vehicle to issue a presidential-like veto on a policy. They have no such power. They simply grant relief to a valid plaintiff. The problem in this case is that the plaintiffs are essentially U.S. citizens petitioning to bring in relatives to this country who have never been admitted or denied. These are hypothetical potential immigrants who have no valid injury-in-fact. Trump’s order will not affect those who were already granted immigrant visas, but only those seeking them after the effective date. It also exempts children of U.S. citizens seeking entry, children under 18 coming here alone, or parents of immigrants who are sponsored.
To give standing in this case would mean that someone has right to sue to enter the country or have someone here sue on their behalf when they have never even been here or been denied entry. There is no valid case. Simon is simply ruling on a policy he disagrees with in the abstract, a power judges simply do not have.
Moreover, even if 7.8 billion people have a right to sue after being denied entry, none of the plaintiffs have yet been denied. The case, even a valid one, would not be ripe yet.
Now let’s turn to the merits. Simon absurdly believes that Congress did not authorize the president to factor in lack of health insurance as an indication of an alien who will likely be a public charge. “Congress has spoken directly to the circumstances in which an individual may be deemed to become a ‘financial burden’ to the United States and has rejected the Proclamation’s core premise,” Simon wrote in an incoherent 18-page political polemic. The upshot of his ruling is that Congress authorized the president to take into account age, health, family status, assets, resources, education, and skill, but not health insurance status.
This is absurd. As part of the rule, the applicants either have to demonstrate they have health insurance or that they can pay for it on their own. So obviously, any rejections would be based on the totality of circumstances that they cannot pay for health care and likely other expenditures and would therefore become a burden on taxpayers.
As Judge Simon himself wrote with regard to the first plaintiff, “John Doe #1 and his wife cannot afford or qualify for an ‘approved’ health insurance option for her and he fears that they lack sufficient financial resources to pay foreseeable medical costs out of pocket.”
In other words, they are straight-up public charges. They cannot afford health care.
Finally, there is the one issue that is never mentioned in this order – the president has plenary executive and delegated authority to shut down any form of immigration or regulate it any time, in any way. Thus, even if the president’s authority to mandate health care coverage for prospective immigrants isn’t included in Section 212(a)(4) of the Immigration and Nationality Act (INA) as a public charge criterion, it’s authorized because of his inherent executive authority to deny entry, as well as 212(f) (8 U.S.C. 1182(f) in code) and 215(a) of the INA, which are explicitly cited in this proclamation.
“By its terms, §1182(f) exudes deference to the President in every clause,” wrote Roberts in the majority opinion in Trump v. Hawaii. “It entrusts to the President the decisions whether and when to suspend entry, whose entry to suspend, for how long, and on what conditions. It thus vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA. Sale, 509 U. S., at 187. (Emphasis added.)
Which bring us to the final point. The Trump administration is working against itself by continue playing this game and appealing an illegitimate and powerless decision to the crazy Ninth Circuit. The Supreme Court has already ruled on this in 2018 and for the past 130 years, for that matter. Clearly, we’ve seen time and again that lower courts are not deterred by settled case law, even when it’s reiterated days before by the current Supreme Court. Thus, waiting for the Supreme Court to step in will not help. The Left has lost every single immigration case in the Supreme Court since Trump took office, yet it continues to come back for more injunctions against those rulings.
Yes, it’s time for the administration to enforce the separation of powers doctrine and actually follow immigration law and not lawless judges. This is the perfect place to start because the judicial branch itself has made it clear that denial of entry is 100 percent up to the discretion of the political branches of government. The court further punctuated this point in Kleindienst v. Mandel (1972):
In accord with ancient principles of the international law of nation-states … the power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government.
By definition, applying to immigrate to this country is a process that is out of reach of our judicial system. The issuance of visas is exclusively an executive power and is not within the province of judicial intervention.
If Trump hopes to have a meaningful second term in undoing lawless policies of previous administrations on immigration and frankly any other issue, he must begin defending the turf of the executive branch from lower court judges.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.