Amid the imbroglio over a partial furloughing of nonessential workers in a handful of federal departments, the political class has ignored that the government has already been shut down – in full and permanently. Individual district judges now control our national sovereignty, border policy, and every other political question. And now Chief Justice John Roberts has essentially barred the doors of the Supreme Court shut to any judicial redress of this judicial crisis.
Just as reporters were going offline last Friday for the Christmas holiday, the Supreme Court announced that it had denied the government’s request to overturn a universal injunction on Trump’s commonsense asylum policy directing the flow of “asylum requests” to our points of entry. Northern California District Judge Jon Tigar and the Ninth Circuit Court of Appeals violated all rules of standing, 200 years of precedent, and John Roberts’ own recent opinion on presidential power to regulate or exclude entry into the country, yet Roberts refused to join the four conservatives in summarily staying the injunction.
In once again allowing the lower courts to reign freely, Roberts is not only perpetuating the shutdown of our border but the shutdown of the Supreme Court itself. What is the purpose of the Supreme Court if it only encroaches on the powers of the other branches but won’t police its own inferior courts when they violate all legal norms? Let’s review the unprecedented insanity of this case:
1) Four left-wing advocacy groups were given standing to sue on behalf of caravans that are literally not even in our country simply because they asserted that their institutions must expend more resources educating their clients on the new policy. It would be equivalent to Conservative Review obtaining standing because we have to expend more resources explaining the new policies we don’t like to our readers. This is perhaps the most absurd violation of Article III standing in recent memory, yet Roberts allows it to continue. Putting immigration aside, the precedent this will set on the parameters of standing will ensure that almost any political group can sue any abstract policy without any valid personal injury.
2) This was the first time a court blatantly limited the president’s power to exclude aliens, even after Roberts himself said in Trump v. Hawaii that the power was very broad.
3) The court, for the first time, is signaling that asylum is somehow a mandatory policy.
4) The court, for the first time, is interfering with sensitive ongoing diplomatic negotiations with the government of Mexico.
5) This was yet another illegal nationwide injunction that has already caused immeasurable damage to our entire sovereignty and security. To allow this injunction to stand means Roberts agrees with universal injunctions, agrees with the merits of the case, or has no problem allowing such national security harm even when he knows the ruling is wrong.
If you put all the recent court decisions on immigration together, it’s now clear why we have an invasion. One district judge said that children must be released. Then another one said parents must be released with the children. Then a district judge in D.C. said the definition of asylum must be expanded to Obama’s policy, beyond an individual fear of persecution. Now a district judge is being allowed to sustain a ruling that Trump can’t even request that they come to the points of entry.
Left-wing legal groups, some of whom are tied to those organizing the caravans, have thought of a way to challenge every single denial of entry and deportation. Even when they lose on one, they come back for more. All it takes is one district judge in one bad circuit to automatically win the first two steps of litigation for them, permanently alter national border policy by applying it nationwide, and encourage a massive rush at our border. Now that Roberts has signaled to the lower courts that he will not police them, they will be even more emboldened to come up with innovative ways to shut down border enforcement.
Now, even after we succeed in denying illegal immigrants’ asylum petitions, judges are making ICE wait to deport them until the lawyers adjudicate separate asylum claims for each member of the family! On Monday, U.S. District Judge Randolph Moss ruled that ICE could not deport an asylum applicant who got her day in court and lost because her daughter was remaining here and would be left alone. But the daughter only remains here on her own volition because her lawyers are filing separate asylum claims for the daughter. This in itself should demonstrate the absurdity of these asylum claims, because it’s almost impossible to have a parent who is not persecuted but a daughter in the same family who is.
Roberts is making it clear that he has no problem with violating rules of standing, ignoring 200 years of sovereignty doctrine in the courts, and expanding the practice of universal injunctions, which Justice Thomas called unconstitutional.
Meanwhile, the border flow, and all its cascading ills both for Americans and the migrants, grows with every court ruling:
Folks, that is the true government shutdown.
But it gets worse. The more the courts encourage the border rush, the less detention space we have even for the people we can still detain without catch-and-release, forcing ICE to release even more people. They are using our own system against us. ICE announced this week it has released another 200 migrants into our country at El Paso.
The media might try to keep this information from Americans, but the millions of potential migrants around the world hear about this news on TV and on their phones.
We no longer control our own destiny. Foreign nationals and lower courts now control the future orientation of our society. This is the government shutdown: The federal government either can’t or won’t protect us from invasion and foreign threats. One of the core reasons why we switched from the Articles of Confederation to the Constitution was to better control immigration and the sovereignty of the entire union from “the intrusion of obnoxious aliens through other States,” in the words of Madison. Writing in Federalist #42, Madison elaborates that the federal power over naturalization solved “a very serious embarrassment” and “defect” of the Articles of Confederation whereby “certain descriptions of aliens, who had rendered themselves obnoxious” can force themselves on several states had they “acquired the character of citizens under the laws of another State.”
Now we are to believe that the ACLU, millions of migrants, and forum-shopped lower courts created by Congress can shut down the other branches of government.
This is why there is no better or more cost-effective enforcement mechanism than a fixed, impenetrable deterrent that prevents illegals from stepping foot on our soil in the first place. It solves the political and legal arguments about deportation that invariably come into play the minute they enter our country. But at some point, if we don’t reclaim power from the courts, they will start granting standing to everyone, even on the other side of the border wall.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.