How Trump can take the Supreme Court border victory to the next level

· September 12, 2019  
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Border Patrol
John Moore | Getty Images

In a better world, we’d all suffer from heartburn reading the headline, “Supreme Court allows Trump asylum restrictions to take effect.” We don’t need a Supreme Court to “allow” us to have a sovereign nation or to “allow” a president to use his authority to deny entry to any foreign national. However, in our prevailing political system, I’ll take “allowing” over disallowing any day of the week. Now the Trump administration has an opportunity to go on offense and kick these district judges while they’re down and drive a stake through the heart of the border crisis, ending it once and for all.

Late yesterday, the Supreme Court reversed the partial injunction of the Ninth Circuit and the nationwide injunction by California Judge Jon Tigar against the administration’s policy of rejecting asylum requests of those who could have claimed asylum in another country. Only two justices – Sonia Sotomayor and Ruth Bader Ginsburg – went on record as dissenting from the unsigned SCOTUS decision to reverse the unprecedented lower-court power-grab, at least pending the disposition of the case on the merits.

Now is the time for the administration to strike while the iron is hot and put an end to this entire concept of carefully selected district judges in California controlling international relations and border policies. Rather than tepidly ease into the border policies pending the outcome of the case on the merits, the administration should begin immediately rejecting every non-Mexican asylum applicant at the border. No half-measures and no more deference to the same judges who have been repudiated over and over again.

Trump should call on Sen. McConnell to bring to the floor the bill introduced yesterday by Sen. Tom Cotton, which officially clarifies existing constitutional law that judges cannot issue rulings outside the cases of legitimate plaintiffs and that district judges cannot apply rulings outside their geographical jurisdictions. He should also have a conservative member of the House introduce articles of impeachment against Jon Tigar, who has now blatantly violated the core of judicial power by giving standing to third-party organizations to sue as aggrieved parties just so he can veto border policies.



There is never any pressure within the left-wing legal profession against those judges who rule more progressively than Supreme Court precedent, but only against those who rule more conservatively. This is why Clarence Thomas warned in the original “travel ban” case that absent a categorical repudiation from the Supreme Court, the left-wing groups would continue going back to the same district judges and get the same favorable rulings.

The more the administration delegitimizes the entire concept of universal injunctions and illegal judicial tampering in the process of admission of aliens, the more it will create pressure against these judges stepping out of line.

Then there is the situation at the border itself. We can’t continue going pursuing border policy tethered to the whims of any district judge. This has real-life consequences at our border for the agents on the line, because the policies keep changing every day. Judges have an important role mediating domestic disputes among legitimate parties, but they cannot take the role of a commander-in-chief in securing an international border.

To that end, the administration should begin rejecting all Central American asylum applicants rather than using the half-measure of the Migration Protection Protocols (MPP), otherwise known as the “return to Mexico policy.” Rather than rejecting them outright, the administration gives them a notice to appear in court while they wait in Mexico near our border for several months. While it certainly has resulted in many Central Americans returning home and was better than full catch-and-release, it is still a half-baked measure that should no longer be needed.

Todd Bensman, National Security Fellow at the Center for Immigration Studies, reported a few weeks ago from his conversations with illegal immigrants waiting in Mexico that Central American migrants in the pipeline are already much reduced and further, that those who have been given an MPP document are trying to sneak over the border anyway.

Bensman was on my podcast several weeks ago and related how several of the migrants he met in Mexico who had received MPP documents told him that they were planning to cross the river illegally.

One border agent in the Rio Grande Valley told me he caught a woman from Honduras running away from agents over the weekend. She had a son with her. Until a few weeks ago, this was unheard of. With catch-and-release in full swing, they wanted to get “caught” by an agent if they had a kid with them. Why are they now running?

“Well, after questioning her, we found out that we apprehended her and her son on August 10th almost in the same area,” said the line agent patrolling the RGV, who must remain anonymous because he is not authorized to speak to the media. “She was part of the MPP program. We gave her a court date in December and sent her back to Mexico. She didn’t want to wait, so she paid the cartel $22,000 for having to cross her twice. Unfortunately, this story is now becoming the norm. Every day we are catching family units running from us because they too do not want to wait. Just a few days ago we had a big bailout from a high-speed FTY [failure to yield], and the majority of the illegals in the vehicle were family units in the MPP program. They face no consequences from trying to come over again.”

Thus, we are allowing an entire group of illegal aliens from Central America to remain on our doorstep in very desperate straits in this half-status. Right now, Mexico is deporting many Central Americans, but they won’t deport those who have an MPP document. MPP is rapidly reaching the tipping point of undermining our more categorical policies as well as Mexico’s enforcement. This is why it’s time to just categorically reject all of these asylum applications and not issue MPPs, because they all could have and should have applied for asylum in Mexico. That would end almost the entire flow, and the rest would be subject to deportation by the Mexican authorities.

At the very least, CBP must put teeth in the MPP for those who violate the agreement. I asked a CBP press officer if those MPP recipients who are caught coming over the river again lose their opportunity to apply for asylum. The spokesman replied, “Their paperwork is updated with the illegal entry and they are returned to Mexico to await their hearing date.” Which likely means that a judge might possibly take this infraction into account, but they do not categorically lose their chance to apply. If CBP updated this policy to deny asylum to those who violate their waiting period in Mexico under MPP, it would deter them and likely encourage all of them to return home.

Trump sits at the crossroads of the issues of judicial supremacy and the border crisis. Momentum is on his side, but history has shown that the best way to kill a policy problem is when it has been weakened, lest it become strong again.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.