Could a third-party organization get standing to select any district court it wants to control and determine who is admitted into this country at the international border? That is the question in light of the ACLU’s lawsuit against Trump’s asylum regulation. It is also the question the Trump administration needs to emphatically answer right now before lending legitimacy to this abuse of separation of powers.
On Tuesday, like clockwork, the ACLU and a bunch of open-borders groups sued the Department of Justice’s latest asylum regulation that simply affirms the integrity of the system. The proposed rule would limit asylum to those who didn’t game the system and pass up other countries that are a party to the asylum treaty before seeking asylum in the U.S. The lawsuit was so contrived that it was likely drafted even before the regulation was published, because it erroneously names John Sanders as head of Customs and Border Protection when the current acting commissioner is Mark Morgan.
Trump has the opportunity to cut this off and call upon his attorney general to declare that there is no legitimacy to this lawsuit and decline to send lawyers to the San Francisco court for this dog-and-pony show.
Forum-shopping and nationwide injunctions are illegitimate
It is simply absurd and illegal for a district court not on the border to rule on a national – even international – issue affecting entry at the border. Most of the family units are coming in at the Texas border, and none of them are in the Northern District of California. Only two percent coming in at the California border at all. Why did the ACLU go there? Because it has a 13-1 majority of Democrat appointees, and that is the district that has single-handedly vitiated the rest of our existing immigration laws.
It’s time for the Trump administration to once and for all declare that nationwide and universal injunctions by district judges are unconstitutional and violate the inherent limitation of “cases and controversies” spelled out in Article III powers. This will affect the rest of his presidency and the future of the republic on every issue, but most certainly on border security. Now is the time to force that issue.
There is no judicial jurisdiction over foreign affairs
It is momentous that the ACLU chose the Northern District of California, a point that must be publicized by the president and his attorney general. This is the very district court that, in 1996, said that the “exclusion of aliens is a fundamental act of sovereignty” and that “the right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. (Encuentro del Canto Popular v. Christopher, N.D. Cal. 1996.) There is nothing more to talk about. Even if the Left is correct about the reading of base asylum statutes, which it is not because asylum is discretionary and never supersedes national security concerns, the president always has the authority to shut it off. It’s not just from statutory 1182(f) delegated authority, but as this very court said, from his own Article II authority over entry at the border. The president can deny entry to anyone he wants, certainly when we are seeing dozens of terrible effects on the American people and on the migrants themselves because of the rush at the border and the empowerment of the cartels and MS-13.
Once Trump establishes this is a foreign affairs issue, it destroys the Left’s next argument. The ACLU alleges that the DOJ violated the Administrative Procedure Act (APA) by not waiting 30 days to potentially implement the policy. Aside from the numerous reasons why the APA doesn’t apply here (see Alito’s partial dissent in the census case), 5 U.S.C. §553(a)(1) explicitly exempts a “foreign affairs function” from the APA.
The Courts have zero jurisdiction to give standing
If the Trump administration agrees to legitimize this case, it will not only give our sovereignty over immigration to the courts, something the Supreme Court has rejected for 130 years, it would be allowing courts to veto any policy without any requirement for Article III standing.
Courts don’t veto policies or laws. There is no judicial veto in the Constitution. What courts can do is grant relief to plaintiffs with valid standing when a cognizable injury is evident as a result of the denial of a constitutional right or a legally protected interest. As the Supreme Court said in 2013, “The law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” (Clapper v. Amnesty International USA.)
7.8 billion people in the world simply don’t have standing to sue for the right to come here. That has long been settled. In Lem Moon Sing (1895), the court said that not only does Congress have full authority to exclude without judicial intervention, but the executive branch officials do as well. The court noted that one could not argue that if an “alien is entitled of right, by some law or treaty, to enter this country, but is nevertheless excluded by such officers” that the courts could get involved.
“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. This would defeat the manifest purpose of Congress in committing to subordinate immigration officers and to the Secretary of the Treasury exclusive authority to determine whether a particular alien seeking admission into this country belongs to the class entitled by some law or treaty to come into the country, or to a class forbidden to enter the United States.”
So, the new tactic of these refugee or open-borders agitation groups is to sue as if they, not the aliens, are the aggrieved party. Typically, the ACLU or another NGO will sue on behalf of a real plaintiff. In this case, they are asserting that they are the aggrieved party because, according to the brief filed in the N.D. of California, “The new Rule frustrates Al Otro Lado’s mission and will force Al Otro Lado to divert significant resources away from its other programs.” They claim they will lose revenue from taxpayer funds or have to strain their staff to function.
Folks, if the court were to legitimize this avenue of standing, then there is not a single policy of any sort that can’t be sued by anyone. Say you have an organization that offers legal help to tax cheats. Then government resolves to more aggressively clamp down on tax fraud. Can your tax cheat law firm get standing to sue the government because now there will be fewer clients and your revenue will be reduced? That is quite literally what the East Bay Sanctuary Covenant, one of the litigants, claimed in support of obtaining standing to sue in this case.
The ACLU is bringing the lawsuit on behalf of East Bay Sanctuary Covenant, Al Otri Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles.
The president or the attorney general should deliver a national address and read some of the ACLU’s brief word for word, and the American people will see the absurdity on their own. They already understand the absurdity of forum-shopping, nationwide injunctions, and judicial tyranny of one of 94 federal courts. Trump’s advisers and lawyers need to step outside to the real America and turn away from political Twitter, and they will see the American people do not want this swarm at the border, nor do they want the ACLU and California judges usurping power. It’s time they actually fight for the forgotten American taxpayer who never gets standing in any court to uphold the rule of law and sovereignty.
We either have three branches of government, or we have 1/94th of the unelected weakest branch determining foreign affairs.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.