What do you call an official who claims the final say over the limits of his own power — and everyone else’s? Someone who can slap a “yes” on anything the elected branches do, or a “no” on anything they attempt, and treat his decree as the last word? That kind of power would have shocked America’s founders. In practice, it can exceed anything King George III exercised over the American colonies. Yet we keep granting it to federal judges by treating their overreach as binding even when Congress has said otherwise.
The founders worried most about the branches that wield force and money. The president commands the sword. Congress holds the purse. Both stand for election. Judges do not. Life tenure exists to protect judges while they decide cases, not to hand them an independent mandate to run the country. Judges possess no army and control no appropriations. Their influence depends on the political branches giving lawful effect to their rulings.
No individual right exists to use the courts as a substitute legislature to remain in the country. Judges cannot confer amnesty by injunction.
Those lawful bounds are not mysterious. Congress established the lower federal courts, and Congress defines their jurisdiction. Even the Supreme Court’s appellate jurisdiction is subject to congressional regulation. Article III, Section 2 makes it subject to “such Exceptions, and under such Regulations as the Congress shall make.”
Justice Clarence Thomas put it plainly in Patchak v. Zinke: “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”
Immigration offers the clearest test case because it sits at the heart of sovereignty. Over no issue do the political branches hold more constitutional authority than determining which foreigners may enter and remain.
As Justice Felix Frankfurter wrote in Galvan v. Press (1954), policies on entry and removal are “peculiarly concerned with the political conduct of government,” and Congress’ exclusive control over them has become “about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.”
Congress, then, holds plenary authority over immigration policy and sweeping authority over federal court jurisdiction — especially the lower courts. Yet now, every loser district judge routinely grants standing to illegal aliens to challenge detention and removal, even when Congress has restricted review.
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Take Temporary Protected Status. The Ninth Circuit ordered the Trump administration to continue TPS for Venezuelans, despite the Supreme Court staying the original injunction. Another district judge issued a similar mandate for Haitians — 16 years after Haitians received that “temporary” status under President Obama. What often goes unsaid: Congress barred judicial review over TPS determinations. Federal law states, without qualification: “No court shall have jurisdiction to review any determination” of DHS “in granting or withdrawing TPS.” Other provisions restrict review of many deportation-related challenges — limits judges often treat as suggestions.
Over the past year, judges who view themselves as latter-day Martin Luther Kings have used legal fog to hear cases Congress barred, even after signals from the Supreme Court. That brings the Trump administration to its decision point.
Administration officials argue — correctly — that courts lack authority to issue certain orders. But judges have neither force nor will beyond what the executive supplies. The executive’s job includes enforcing the jurisdictional limits Congress enacted. A court that lacks jurisdiction cannot establish it by decree.
If this judicial coup runs to its logical end, any district judge becomes the final arbiter of any political question: grant standing to any plaintiff, announce standing rules that override statutes, take jurisdiction Congress withheld, then command the elected branches to act. That is not the Supreme Court’s role, let alone a trial judge’s.
It also outstrips anything King George could do at the founding. He needed Parliament for matters like citizenship. We are now told a judge can dictate immigration policy regardless of the law.
Waiting on the Supreme Court to clean up the mess is a fool’s errand. District judges return with a slightly modified case and restart the process. During Trump’s first term, an immigration lawyer summed up the strategy: “May a thousand litigation flowers bloom.”
The numbers tell the story. In Minnesota alone, federal court sees an average of one habeas petition filed every hour. A judge even ordered a previously deported alien brought back. These petitions do not claim Immigration and Customs Enforcement mistakenly detained U.S. citizens. They aim to use courts to stall enforcement in bulk.
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Finality binds parties in cases; it does not bind the political branches into permanent policy submission. Lincoln drew that distinction in his 1858 debates with Stephen Douglas. Courts may decide individual cases. But if courts try to turn those decisions into national political rules, elected officials should not treat them as binding “political rules” that forbid any measure that does not “concur” with a judicial decision.
Lincoln practiced that view as president. His attorney general, Edward Bates, explained the judiciary’s proper scope: Judicial power is ample for justice “among individual parties,” but “powerless to impose rules of action and of judgment upon the other departments.”
Applied to immigration, the point is simple: No individual right exists to use the courts as a substitute legislature to remain in the country. Judges cannot confer amnesty by injunction. Congress has not passed a legislative amnesty in four decades for a reason: It requires majorities in both houses and the president’s signature, and the politicians who vote for it must face the voters. Yet the current judicial pattern grants amnesty through procedure — without hearings, without votes, and without accountability. Life tenure was designed for the opposite purpose.
No shortcut exists. The political branches must stop treating lawless judicial opinions as if they carry the force of law — especially when those opinions ignore statutes, exceed jurisdiction, and attempt to seize control of core sovereign functions.
If Friedrich Hayek taught us to inquire about who should decide and Abraham Lincoln taught us to ask to what end, then the question of immigration compels us toward a third and inescapable question: Where is the line drawn?
The principles of subsidiarity and federalism demand that matters should be resolved at the lowest level of authority competent to manage them. Much of what the national government has usurped would be more wisely and justly managed by the states, local communities, families, and institutions of civil society.
A nation that treats its laws as optional, its borders as permeable, and its citizenship as devoid of meaning invites the very chaos that destroys liberty.
The Constitution itself was framed to embody this division of powers, preserving the vitality of local self-government against the dangers of centralized tyranny.
Yet subsidiarity is not an absolute doctrine, nor is federalism morally sovereign. America’s founders never regarded federalism as an end in itself, but as an instrument ordered toward justice, liberty, and the common good.
When the claims of federalism or local autonomy come into conflict with the equal dignity of the human person, federalism must yield. This is the profound teaching of the Civil War. That great conflict established beyond doubt that there are moral limits that no level of government — federal, state, or local — may transgress, even under the guise of divided sovereignty. The principle of human equality proclaimed in the Declaration of Independence sets a boundary that no appeal to states’ rights or local preference can override.
Before 1861, the defenders of slavery advanced an argument we hear echoing in our own day: that each state must be free to decide for itself the very foundations of republican government. The Supreme Court in Dred Scott v. Sandford lent its sanction to this view regarding slavery. But Lincoln repudiated it utterly.
He understood that the rights of man do not vary according to geography or popular vote. The self-evident truth that all men are created equal declares that no majority, no state legislature, no municipal council may lawfully decree some men unfit for liberty on grounds that deny their humanity. To enslave a man is to violate his natural rights; to nullify federal authority in matters essential to national existence is to dissolve the Union that secures those rights.
Lincoln did not abolish federalism — he preserved it by subordinating it to the higher law of nature. Federalism endures insofar as it is grounded in moral truth and serves to perpetuate a regime dedicated to equal natural rights.
This distinction becomes decisive when we turn to immigration. It concerns not merely internal policy but the very nature of the American political community: who may enter, under what conditions, and by whose authority.
The power over naturalization and the regulation of foreign entry are among the essential attributes of sovereignty, which the Constitution (Article I, Section 8) has expressly delegated to the federal government. Borders define the “We the People” whose consent forms the government. A people that cannot control its own borders or decide who can become a citizen cannot long govern itself justly or preserve equality under law, our regime’s moral foundation.
The federal government exists not to confer human dignity (which is inherent in every person) but to secure it among the specific members of the polity. Human dignity demands that no one be enslaved or deprived of life and liberty without due process; it does not entail an unqualified right to enter any political community or claim automatic citizenship.
The right to migrate is not the same as the right to enter any country of one’s choosing. Conflating the two dissolves the distinction between universal natural rights and the particular rights of citizens, a distinction the founders carefully preserved.
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The real question for us is not merely whether authority is federal or local, but whether policy is directed toward justice, human dignity, and the nation’s common good. Lincoln saw that democracy unbounded by moral limits becomes incoherent and self-destructive. A nation that treats its laws as optional, its borders as permeable, and its citizenship as devoid of meaning invites the very chaos that destroys liberty.
Federalism is a means to the end of justice; it is not a refuge from moral duty. Local communities may not, under color of autonomy (sanctuary cities), nullify the Union’s authority over matters essential to its preservation — any more than Southern states could nullify the Fugitive Slave Clause or obstruct the enforcement of laws necessary to national integrity.
These acts of interposition — driven by radical professional activists and their followers in cities like Minneapolis — echo the nullification and secession doctrines Lincoln condemned as fatal to the republic. In his 1861 Annual Message to Congress, he accurately described the true nature of such “principles”: “rebellion thus sugarcoated” that has “been drugging the public mind.”
The lesson of Lincoln and the founders is unchanging: Decentralization without moral anchors descends into anarchy; centralization without moral purpose hardens into despotism. True statesmanship orders power toward the permanent truths enunciated by the Declaration of Independence. Only then can the American experiment endure as a government of the people, by the people, and for the people — and dedicated to the Declaration’s proposition “that all men are created equal.”
Editor’s note: A version of this article was published originally at the American Mind.
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