Can the courts do no wrong?

It’s understandable why members of Congress would be upset with a general trend of presidents legislating from the White House, whether through emergency or non-emergency powers. What is not understandable is why these same members who complain about abuse of executive power don’t utter a word, much less take action, against more severe, systemic, harmful, and irrevocable power grabs by the unelected and completely unaccountable judiciary branch of government.

Today’s debate over disapproving Trump’s reprogramming of $2.6 billion in DOD funding for construction of a border fence under the declaration of an emergency is a sideshow. As I’ve noted before, with the courts ruling that the Constitution applies to 7.8 billion people, mostly outside our country, we no longer have a border, so a border wall is moot until that is fixed. Moreover, the entire discussion over executive power grabs, while in general a worthy discussion, is also a distraction from the real source of the constitutional crisis over violation of powers, particularly when it comes to the border.

Why are we in this predicament to begin with? We have a flow of hundreds of thousands of Central Americans invading our border, being brought in on our dime, who are impossible to deport under almost every circumstance. It all starts and ends with the courts. We have empowered the lower courts as the sole and final arbiter of every aspect of border and interior immigration enforcement, the one area of law into which even the Supreme Court of the infamous Warren era never ventured.

Moreover, the courts are not just illegally attempting to thwart Trump’s executive actions. They are invalidating immigration statutes nearly every week, violating rules of standing in order to serve as both a legislature and presidential veto, and are now ignoring congressional laws regulating the type of immigration appeals courts can hear. The Ninth Circuit last week nullified a statute that passed the Senate by voice vote in 1996 dealing with two of the most plenary powers of Congress – immigration and regulating jurisdiction of the courts. Where is the outrage?

The Supreme Court has refused to hear the appeal where Judge Jon Tigar violated rules of standing and gave caravans outside our country access to block the one policy that would end this bogus asylum invasion. It has also thus far refused to hear the appeal on judges astoundingly forcing Trump to violate foundational congressional immigration laws by continuing Obama’s amnesty and even forcing states to give driver’s licenses to people who Congress said must be deported! Where is the outrage from a single Republican senator?

The letter of the statute does indeed grant the president authority to reprogram these funds. In general, I’m disappointed with the president’s broader focus and the failure to act in other ways to address the emergency that are frankly more important than the wall, thereby furthering the suspicion that this was motivated more by the symbolism of his campaign promise than anything else. But on every level – whether it’s the Constitution, statute, sovereignty, or policy effects – the judicial power grabs are much more severe.

The courts are the source of the problem. Why do you think we are in this predicament with illegal immigration 23 years after Congress nearly unanimously passed The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA 96”), which solved much of the problem? Because the courts have systematically dismantled the law, ignored their own long-standing case law, and nullified statutes. Now, they are issuing one universal injunction after another, a proceeding that according to Justice Thomas is so unconstitutional that even Congress likely couldn’t confer the power to do so upon the courts! Thomas noted that universal injunctions fundamentally strip the legislative power from Congress and illegally grow the power of the court from deciding judicial controversies to rendering edicts on public policy.

But where is the outrage from these same senators who are so evidently concerned about protecting Article I powers to legislate? Where is a single piece of legislation from a single member dealing with the judicial super-power grab on a single vital issue? Where is the resolution of disapproval? Where is a single initiative to impeach a single judge?

It gets even worse. So, this group of senators is upset about executive power grabs. Fine. But not only are they ignoring more severe and brazen judicial power grabs, they are ignoring the very judicial power grabs that force Trump to continue the executive abuses of his predecessor! I’ve chronicled 13 examples of the courts demanding that Trump continue policies that never existed until Obama and were illegally enacted by administrative fiat, yet the courts mandated that Trump continue them. Is it that these senators are such judicial supremacists that their zealous distaste for executive power abuse is suddenly mollified when it’s caused by judicial power abuse?

The courts redefine marriage, the building block of all civilization? Crickets from these senators.

The courts redefine life and bar any restriction on any aspect of abortion funding, much less abortions? Crickets.

The courts redefine citizenship and sovereignty in every way? Crickets?

The courts stripe the states of the power to prevent voter fraud or non-citizens voting? Crickets.

The courts prevent states from enforcing federal immigration laws but give standing to states to sue against federal immigration laws and violate them? Crickets.

There are almost no legislative issues left that have not been decided by the courts, and most recently, predominantly by congressionally created lower courts. In fact, in 2017, the U.S. Court of the Appeals for the Federal Circuit, a random court that Congress didn’t even create until 1982, ruled that a provision of the Veterans Access, Choice and Accountability Act, a law designed to expedite the firing of those at the center of the VA scandal, could not be followed. The bill passed the Senate 91-3.

Among the hundreds of outlandish and consequential decisions that affect the core of our civilization, most of these senators have never even put out a single press release criticizing the courts and resolving to stand up for Article I of the Constitution.

Not only are judicial power grabs more brazen in scope and policy claims than most executive abuses, they are, according to these same supremacists, irrevocable. A president who abuses power either retires or is faced with an electorate that can punish him and his party and eventually countermand his order. But we are told that any utterance of a judge is “the law of the land” and we must do the impossible task of amending the Constitution to get around their illegal altering of that document.

So color me wholly unimpressed with those who are suddenly concerned about a president using an emergency statute to redirect a few billion dollars that would have gone to Kabul urban renewal projects to instead deal with a crisis created by the branch of government that, in the eyes of these senators, can nullify Article I with impunity.

If you are a senator who has consistently pushed for judicial reform and resolved to take on the courts, your equal outrage over Trump’s move is understandable. But if you’ve been criminally silent on the real separation of powers and constitutional crises with the courts, take your concern over Trump … and tell it to the judge!

If Russians were found to have voted in our elections, would that be enough to get the political class to take seriously the issue of non-citizens voting in our elections? What if Russian nationals got standing to sue against any method of protecting the integrity of our elections and Census reapportionment? Would it then be kosher to focus on the existential threat posed by voter fraud?

All conservatives should take the Russian attempts to meddle in our elections seriously. But that is a national security and counterintelligence issue; it’s not an electoral issue. Nobody can say that the Russians made a difference with the actual voters in the Midwest who elected Trump. But what does make a difference is foreign nationals actually voting in our elections as well as being counted in the Census. They do more than influence our elections; they downright shape, distort, and irretrievably alter the outcome of our elections. Why is there no concern about this issue among the political class?

A law fueling non-citizens voting

Last week, the Public Interest Legal Foundation (PILF), headed by former DOJ attorney and election law expert J. Christian Adams, published a report showing definitive proof of non-citizens voting in Alleghany County, Pennsylvania, a key battleground state. Last year, the Pennsylvania Department of Transportation admitted that through the motor voter law, thousands of non-citizens were seamlessly registered to vote through their process of obtaining driver’s licenses. Last December, Philadelphia City Commissioner Al Schmidt estimated that over 100,000 non-citizens were registered over the past two decades statewide.

And this is just one critical state admitting its error. It’s not hard to see how this is a problem affecting countless hundreds of thousands, if not millions of people. The National Voter Registration Act of 1993 (NVRA) — otherwise known as the motor voter law – requires states to offer those obtaining driver’s licenses the option of registering to vote. The problem is that without strong mandates to check citizenship status, this law turned into basically a government requirement to register non-citizens to vote! Non-citizens, even legal immigrants, have no standing to vote in our elections. The courts have downright prevented states from asking for proof of citizenship on voter registration forms, and in many states, we are stuck with nothing more than an honor system to ensure that only Americans are choosing American leaders. Thus, when non-citizens erroneously register to vote, it often takes years to discover because of all the lawsuits against any state that employs commonsense measures to secure the integrity of our elections.

Worse, a dozen states hand out driver’s licenses to illegal aliens – more than a million in California alone – and other states are being forced to do so by the courts.

It doesn’t take a rocket scientist to realize that this system and the amalgamation of a number of immigration factors, court decisions, and legal mandates have created a ubiquitous problem of non-citizens voting. It is extremely difficult to expose the extent of the problem because states do not cooperate with those who seek to research and quantify the number of non-citizens voting in our elections. Although the organization was denied access to review state records, PILF was given access to records from Alleghany County, which includes the state’s second most populous city, Pittsburgh. PILF found that 139 individual non-citizens were illegally registered to vote since 2006 and 27 percent of them cast at least one ballot in an election. Of course, just 23 of the 139 non-citizens were registered Republican.

Here’s the kicker: These were just the people who self-reported in just one county. We have no idea how many non-citizens voted in Alleghany County, much less the entire Keystone State, but it’s safe to say the number is exponentially higher. These are individuals who self-reported because they were scared that if they are ever caught having been illegally registered to vote, they could be prosecuted for voter fraud and deported. In a similar report in 2016, PILF found 1,046 non-citizens registered to vote in eight Virginia counties and “cast a total of 186 votes between 2005 and 2015.

Record immigration, the motor voter law, and no mandated verification are a recipe for disaster for immigrants and citizens

It’s important to remember that our system is so absurd that it hurts even well-intentioned immigrants. Forget about illegal immigrants or those who desire to subvert our laws for a moment. Many unsuspecting legal immigrants are given the choice of registering to vote without even realizing it’s illegal to do so. Now a number of blue states are automatically registering people with driver’s licenses to vote as part of their obsession to juice up turnout. This will easily rope in many non-citizens. We can’t expect immigrants to be more zealous about the problem than we are. In fact, the problem is so real that the ACLU initially opposed California’s automatic registration law out of concern that it would register many non-citizens, which would render them deportable for violating election law.

This is a growing problem with the explosion of immigration over the past few decades. As the Center for Immigration Studies reports, “[I]n 1990, immigrants were at least 20 percent of the adult population (18-plus) in just 44 counties; by 2014 they were at least 20 percent of the adult population in 152 counties.” They further note that “the immigrant share of adults has more than quadrupled in 232 counties.” The total immigrant population now stands at 44 million. Putting the broader immigration debate aside for a moment, even those who favor mass immigration must admit that the unprecedented growth in immigration poses a foundational risk to the franchise unless states are able to ensure that non-citizens are not registering to vote through motor voter forms.

In one of the case studies in Allegheny County, PILF found that a woman named Karen who came here on a K-1 fiancée visa was registered to vote from 1996 until 2008. In her own words: “I asked the attendant if I should fill it out. I told her that I didn’t think I was qualified to vote as I wasn’t a citizen. She thought I should fill it out anyway, and that I would be rejected if I was not qualified.” PILF posted her letter to county officials asking that her name be removed after years of being registered as an active voter against her will.

Now imagine all of the dishonest people and illegal aliens trying to “influence our elections” who would never self-report. We need not imagine how many illegals are likely voting in California. Thanks to concerns from the ACLU, California added the following provision to Section 2269 of the automatic voter registration law:

If a person who is ineligible to vote becomes registered to vote pursuant to this chapter and votes or attempts to vote in an election held after the effective date of the person’s registration, that person shall be presumed to have acted with official authorization and shall not be guilty of fraudulently voting or attempting to vote pursuant to Section 18560, unless that person willfully votes or attempts to vote knowing that he or she is not entitled to vote.

How many think this will actually deter them from voting once they are protected from prosecution?

Subverting our sovereignty and destiny: The ultimate foreign influence  

It’s worse than foreign nationals simply voting in our elections. All illegal aliens are counted in the Census and give states like California more representation in the House and in presidential elections, even when they don’t all actually cast ballots. This is the ultimate disenfranchisement of Americans. Now, the legal profession is working in the courts to prevent the Trump administration from even asking about immigration status on the Census, much less discounting illegals in the 2020 reapportionment.

The distortion of our elections is amplified by dual-nationality voting – with over 1 million Mexican-Americans voting in both American and Mexican elections, while Mexican presidential candidates campaign for votes on our shores while bashing our government. Where is the concern of foreign meddling by Mexico?

A sane Republican Party would introduce a legislative agenda to broadly address foreign meddling in our elections on all fronts while aggressively pursuing a counterintelligence effort against Russian espionage. That agenda should:

• Explicitly authorize states to require proof of citizenship to vote
• Require that states and localities use the federal SAVE (Systematic Alien Verification for Entitlements) database or E-Verify to check for non-citizens voting
• Stop counting illegal aliens in the Census for purpose of reapportionment
• Treat states that offer driver’s licenses to illegal aliens as sanctuary cities and cut off special federal law enforcement grants
• Disallow dual citizens to vote in foreign election while voting in American elections
• Tighten up section 8 of the motor voter law, which requires states to “make a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters,” in a way that even liberal judges can’t misread it

Yesterday, Speaker Paul Ryan declared, "There is no question that Russia interfered in our election and continues attempts to undermine democracy here and around the world.” He called for a renewed focus “on holding Russia accountable and putting an end to its vile attacks on democracy.” Fabulous. Why then has he refused to allow a single piece of legislation dealing with the ultimate subversion of democracy – voter fraud and non-citizens voting – to come to the floor for a vote?

Anyone in the media and in Congress who is concerned about foreign powers influencing elections but ignores foreigners actually voting in our elections and irrevocably distorting our representation is high on Russian vodka or is intellectually bankrupt.