The Supreme Court puts border judges back in their lane
For years, America’s immigration policy has been determined less by the elected branches of government than by a handful of federal district judges. Presidents proposed policies, Congress enacted statutes, and almost inevitably, a single judge somewhere in the country would issue an order purporting to suspend those policies nationwide.
That era may finally be drawing to a close.
Federal judges possess neither the democratic legitimacy of Congress nor the political accountability of the president.
The Supreme Court’s two immigration decisions issued last week mark an important turning point — not simply because they uphold significant Trump administration immigration policies, but because they reaffirm a more fundamental constitutional principle: Immigration policy belongs primarily to the political branches, not the judiciary.
The court’s decisions addressed different questions: Mullin v. Doe concerned the executive’s authority over Temporary Protected Status, while Mullin v. Al Otro Lado involved the government’s ability to regulate when and how aliens arriving at the border may invoke asylum procedures.
Both opinions reject the increasingly common assumption that federal judges may freely substitute their policy preferences for those of Congress and the president in matters of immigration.
That conclusion should surprise no one familiar with the Constitution or with the current court’s commitment to adhere to its original meaning.
Article I gives Congress authority over naturalization and immigration. Article II charges the president with faithfully executing the immigration laws and conducting the nation’s foreign affairs. The judiciary’s role is different. Courts are supposed to resolve concrete legal disputes — not make immigration policy. For too long, however, that distinction has been blurred.
Beginning during the first Trump administration and accelerating in recent years, nationwide injunctions or nationwide class actions have become the preferred weapon of litigants seeking to defeat executive policies with which they disagree. A single district judge can effectively veto the actions of the elected branches for the entire nation, often within days of a complaint being filed and long before appellate review. Nothing in the Constitution contemplates such extraordinary judicial power.
Federal judges possess neither the democratic legitimacy of Congress nor the political accountability of the president. Their authority extends only to deciding the cases before them and granting relief necessary to protect the specific parties before the court. They were never intended to function as a continuing supervisory council over every major policy dispute in the country. Last week’s decisions reflect a welcome recognition of that important constitutional principle.
Immigration, perhaps more than any other area of law, requires political judgment. Decisions concerning border security, humanitarian protection, foreign relations, labor markets, and national sovereignty inevitably involve competing policy considerations that courts are poorly equipped — and constitutionally unauthorized — to balance.
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Reasonable people may disagree about how policy judgments in the area of immigration should be resolved. Americans have long debated the proper scope of asylum protections, the wisdom of Temporary Protected Status, and the best means of securing the southern border.
But under our constitutional system, such decisions are supposed to occur in Congress, at the White House, and ultimately at the ballot box — not through nationwide decrees issued by unelected trial judges.
Critics will undoubtedly portray the Supreme Court’s two rulings as victories for one political party or another. That misses the larger point. The real winner is the constitutional separation of powers.
When courts respect the limits of judicial authority, they strengthen rather than weaken the rule of law. Judicial modesty is not judicial abdication. Courts remain fully empowered to decide actual cases, interpret statutes, and enforce constitutional guarantees. What they are not empowered to do is assume responsibility for making national immigration policy, a distinction that protects everyone.
The precedents the Supreme Court established will not apply only to Republican presidents or conservative policies. They will constrain future courts considering the actions of Democrat administrations as well. Constitutional principles endure precisely because they are not dependent upon agreement with the policy of the moment.
The framers deliberately divided governmental power among three separate branches because concentrated power is dangerous regardless of who exercises it. Judicial overreach is no less inconsistent with constitutional government than executive overreach or legislative overreach.
The Supreme Court’s decisions on immigration represent an encouraging course correction. They remind lower courts that judges are not policymakers. They reaffirm that immigration decisions belong principally to the elected branches. And they take another step toward restoring the proper constitutional balance among the three branches of government.
That is good news not only for immigration policy, but also for the Constitution itself.
Editor’s note: This article appeared originally at the American Mind.
Federal courts have done the worst damage to themselves with a century of outrageous and abusive rulings like this one from the Ninth Circuit.
It is time for Congress to rethink its federal statutes that govern the discipline of judges.
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