Forget about the imbroglio over legislative amnesty. If nothing is done to stop the judicial amnesty, none of the legislative wrangling will matter.
When addressing the fears of the Anti-Federalists that the proposed office of president would function like a monarch, Alexander Hamilton detailed a list of stark distinctions between the two powers in Federalist #69. He used the power over immigration as the quintessential example of what distinguishes the power of a president from that of a king. Whereas “[T]he one [a president] can confer no privileges whatever,” wrote Hamilton, “the other [a king] can make denizens of aliens.”
Not in Hamilton’s wildest imaginings could he ever have envisioned a time when a lowly district judge can force a president to make denizens of aliens, contrary to the most foundational sovereignty statutes. Even King George couldn’t do what Obama did on immigration without the consent of Parliament, according to the Library of Congress. In that sense, the power of lower court judges has been elevated to a higher status than that of a king, much less a president. Remember when Hamilton said even the Supreme Court would have “neither force nor will” on political issues even governing American citizens? Those were good days.
It’s not worth delving into the details of the ruling from this Antifa-style judge in San Francisco who declared last night that Trump must continue renewing work permits, visas, and Social Security cards for people who, pursuant to law, must be deported. After all, Judge William Alsup is merely continuing “the resistance,” with the power of supremacy that even conservative legal eagles have bestowed upon the judicial robes.
Let’s put aside the fact that it is a settled, uninterrupted stream of case law that illegal aliens are considered as if they are outside the country and do not have standing to sue in court. This is why we have administrative immigration judges, given that aliens have no access to Article III courts.
Let’s put aside the fact that 225(b)(2)(A) of the INA requires ICE agents to place all illegal aliens into removal proceedings, so how can a judge say a president must not only allow them to stay but offer them Social Security cards and steal the birthright of Americans?
Let’s put aside the fact that a judge can’t use a president’s political comments on Twitter to decide law, as Judge Alsup did yesterday.
Let’s put aside the fact that 8 U.S. Code §1201(h)(i) stipulates that even a legally issued visa does not “entitle any alien” to be “admitted [into] the United States” and that “T]he consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation,” even issued pursuant to law, not just a phantom executive order.
For the purposes of this case, let’s treat a district judge like God who is all-powerful and can do whatever he wants and the other branches are required to unquestionably listen to his every whim.
But here’s the problem: Which god does Trump listen to?
Remember, another district judge, Andrew Hanen of Texas, issued a nationwide injunction prohibiting the president from giving benefits to Obama’s amnestied aliens. Moreover, an entire circuit, the Fifth, ruled the same way. So, here’s a serious question for the unflinching judicial supremacists: Which court should he listen to? He can’t satisfy both.
If nothing else, this case proves the philosophical absurdity of the new innovation of the judiciary to issue nationwide injunctions outside their respective jurisdictions. What if 90 district courts throw out a lawsuit from the ACLU against an executive action but one sides with them and issues a nationwide injunction? How can one suggest that is binding? This case is even worse, because the other district judge and circuit court didn’t just say the president may get rid of DACA if he wants; they ruled that the executive branch is barred from implementing it.
Thus, when an executive branch is presented with a contradictory ruling, it must follow statute and the Constitution. And the real law, the law executive officials swore to uphold, prohibits illegal immigrants from getting visas and work permits.
There is no excuse for the president and attorney general to side with Judge Alsup in this case. Until now, I’ve been told that the reluctance to push back against lawless courts stems from the fear of violating the prevailing legal sentiment of judicial supremacy. But in this case, they’d be siding with only the lawless part of it and ignoring the judge who sided with the Constitution.
Yes, eventually the Supreme Court will reverse this, but it will take a while to first lose at the Ninth Circuit. Plus, as they did with the immigration pause, they won’t categorically reverse the entire premise of the case — that illegals can get standing — and they will also allow the case on the merits to continue, even if they lift the injunction. They will keep coming back for more bites at the apple within the Ninth and Fourth Circuits, essentially paralyzing this presidency and nullifying our sovereignty, all the while creating more and more precedent to steal our sovereignty — precedent that can and will only expand and never recede. Now is the time to take a stand.
More broadly, Trump must recognize, that unless he demands from Congress the complete removal of immigration from Article III courts, his entire immigration agenda is dead. He won’t need a “bill of love” when we have rulings of hate issued by the divine rule of judges.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.