Just three months ago to the day, I posted an analysis of the February border numbers, which were referred to at the time as “bonkers” and surpassing a “breaking point.” Well, three months later, with no “1182(f) shutdown” of immigration requests at the border triggered by the president, those very uncharted numbers have now DOUBLED.
Yesterday, Customs and Border Protection (CBP) announced that the number of illegal aliens apprehended at the border in May was roughly 144,000, a 32 percent increase from what we thought were unconscionable numbers in April. A whopping 132,887 were caught between points of entry and 11,391 at points of entry. The real shocker is that the total number of individuals coming in family units or as unaccompanied minors surged passed 100,000 for the first time, crushing April’s record by roughly 40 percent.
Now is the time for the president to either give a speech suspending all asylum requests and launching an operation against the cartels or cease calling this a sovereign nation.
The famous adage, “The Constitution is not a suicide pact,” came from Justice Robert Jackson, the great champion of individual rights and due process, the lead prosecutor at Nuremberg, and the lead dissenter in the Japanese internment case. He used this concept in his dissent in Terminiello v. Chicago (1949) after his fellow justices at the Supreme Court ruled that a Chicago ordinance leading to the conviction of a fascist speaker for speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” was unconstitutional.
Despite the fact that this disorderly conduct conviction, overturned by the majority of his colleagues, was a direct infringement upon the unambiguous and most foundational First Amendment rights of an individual citizen of the United States, Jackson famously wrote in his dissent that you reach a point when “the choice is not between order and liberty. It is between liberty with order and anarchy without either.” He warned in a dissent joined by three other justices, “There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Despite the flagrant constitutional violation by Chicago of the rights of a U.S. citizen, Jackson felt that the majority had reached the point of “accepting the doctrine that civil liberty means the removal of all restraints to maintain order.” He believed that treating this one aspect of the Constitution as a suicide pact “in the long run” would make “maintenance of free speech … more endangered if the population can have no protection from the abuses which lead to violence.”
Jackson’s broad principle is pure common sense of human survival. It was just a question of whether, in this particular case, upholding a strict view of the First Amendment would indeed cross that line. Five of his colleagues disagreed.
But what would they say in this case, when the Constitution gives the president foreign affairs powers to block entry into the country? When the law itself says these people, if the president chooses to let them in, “shall be detained” and placed in expedited removal? And yet, a single California judge grants standing for foreign nationals to sue for a phantom right to immigrate and not be detained, thereby trampling the social compact and sovereignty of every American citizen, empowering the cartels to bring in drugs, gangs, criminals, and weapons, and saddling American communities with the bill.
The cascading effects of an open border are insane enough, but with cartels orchestrating that flow, it is downright suicidal. Uninterrupted case law gives the president full authority to shut off migration, and his foreign affairs and military powers give him the authority to shut this down to deal with the cartels without any judicial intervention. This principle “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history … but a whole volume” (Galvan v. Press). The concept is “inherent in sovereignty,” consistent with “ancient principles” of international law, and “to be exercised exclusively by the political branches of government” (Kleindienst v. Mandel).
Indeed, Justice Jackson is the one who famously said, “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will” (Shaughnessy v. Mezei, (1953)). An alien’s claim to enter, much less a mass population transfer spawned by criminal organizations, is as antithetical to a fundamental civil liberty as fire is to water. The law could never impede a government from protecting the ultimate public order of national borders.
In fact, even as it relates to the Bill of Rights and freedom of speech for Americans, the Supreme Court in Feiner v. New York (1951), just two years after the Chicago case, sided with police in Syracuse, New York, who arrested a man for inciting a mob. Irving Feiner caused a riot in Syracuse in March 1949 when he urged black people to “rise up in arms and fight for equal rights” and was arrested and charged with breaching the peace after police told him three times to stop. This time, a majority of the court joined Jackson and believed that the facts on the ground showed that allowing an individual right to inhibit governmental action would be a bridge too far.
The majority opinion noted that civil liberties cannot make governments “powerless to prevent a breach of the peace” or to use “considered judgement” when “faced with a crisis” to exercise “their power and duty to preserve peace and order” given, among other factors, “the existing situation and the imminence of greater disorder.”
Could you imagine how the breach of peace, the crisis, and the existing imminent disorder at our international border would have been regarded by any judge of previous generations, weighed against an illegal alien’s “claim” to enter and fuel the mayhem?
Even with regard to habeas corpus rights of Americans, Article 1, Section 9 of the Constitution states that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” While Chief Justice Roger Taney ruled that this emergency power only applied to Congress, President Lincoln disagreed and ordered the military to suspend habeas corpus rights in Maryland to prevent a rebellion.
During his July 4, 1861, address to Congress, Lincoln famously asked in defense of his action, “Are all the laws but one to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?”
Lincoln noted that the president must look to “the whole of the laws” and not let them collapse due to the fear of a “single law” being violated to “a limited extent.”
Again, even if the president didn’t have the power to deny entry into this country and even if we didn’t know that this is a prima facie fraud, there is no way someone could read asylum law so literally and stringently as to include a mass smuggling invasion that is so detrimental to this country when it violates the letter and spirit of every other area of the Immigration and Nationality Act.
Nobody is asking President Trump to violate any law or constitutional right to prevent the global migration from dissolving this country. He merely needs to use delegated and inherent authority to shut off an orchestrated and criminal conspiracy of mass smuggling. Are we going to allow one judge’s interpretation of asylum law to shred every other immigration law for the benefit of millions of aliens and the cartels at the expense of all American citizens? Are we really prepared to allow all laws but the fake law of catch-and-release to go unexecuted so that our country go to pieces on behalf of people who have no right to be here?
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.