Courting Armageddon

Judges' injunctions against Presidential immigration enforcement are playing a dangerous game.

The leftist media, not having much else to celebrate, have been making a Big Deal out of the courts' refusing to uphold Mr. Trump's Executive Order barring citizens from seven terrorist-friendly Muslim countries from entering our country.  The fact that this executive order is a) temporary (which it ought not be) and b) cited the exact same countries identified by the Obama administration as sources of terrorism matters not one whit.  Having delivered this apparent victory over the Trump agenda, Judge Robart is being celebrated as a hero.

This may be premature: there are a number of problems with muddled thinking on the part of our judiciary, with consequences that they have probably not thought through.

The Letter of the Law

For one thing, unlike most laws which require a doctorate even to vaguely get the gist of, this particular statute could not be written more clearly.  Congress has given the President the power to bar citizens from any country, or any national group, from entering the US, and done so in a way that even ordinary citizens can plainly comprehend.  Federal immigration law includes Section 1182(f), which states:

"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate[emphasis added]

"Aliens" means people who are not citizens of the United States, of course, a distinction which escapes a multitude of protesters as well as some of our judges.  This law, duly passed by Congress, entirely places this power in the hands of the President of the United States and in him alone.  All he has to do is decide that the entry of aliens is bad for America, proclaim a ban, and that's that.  If Congress disagreed with this action strongly enough they could certainly change the law and the electorate could turf the President out at the next election, but other than that he answers to nobody for this decision, according to the law as written and passed.

This makes logical sense: a large portion of the reason our Founders decided to have a unitary Presidency, rather than a fully parliamentary form of government, was precisely because they knew that national security threats require a single strong authority to make decisions and carry out the responsibility as rapidly as possible.  Thus, for the entire history of our government, the judicial system has been extremely deferential to national security actions taken by the President.  Judges intervened only after a great deal of deliberation and only when the decision clearly violated American law.

For instance, during the Civil War, Abraham Lincoln suspended one of the most fundamental American rights, the writ of habeas corpus which requires that prisoners be charged in court so they can be properly tried.  Naturally, any number of imprisoned people sued him.  The courts rightly found the suspension of this right to be unconstitutional; the Chief Justice of the Supreme Court ruled that Lincoln had no right to do this.  But no court dared to forcefully forbid the President from doing it until it was reviewed by the full Supreme Court by which time the war was over, Lincoln had restored the right, and it didn't matter.

By voiding Mr. Trump's clearly legal order, the judiciary has taken it upon itself to nullify a law which was duly passed by the House and Senate, signed by the President of the day, and has been used by other Presidents in the past.  Nullifying such a law is arguably the job of the Supreme Court, but certainly not the place of any lower court, let alone one single judge.

Ignoring Precedent

This decision also ignores longstanding, directly-applicable precedent.  Within the memory of today's judges President Carter banned Iranian nationals in 1980 during the U.S.-hostage crisis, and he also deported those who were already here; nobody complained.  President Obama issued orders to limit immigration, the last one restricting Cubans just before the end of his term; again, nobody complained.  For that matter, Mr. Obama stopped processing visas for Iraqis for six months in 2011; once again, nobody uttered a peep.

President Bill Clinton expressed a view on immigration overall startlingly similar to President Trump's in his 1995 State of the Union Address to universal, bipartisan applause:

All Americans, not only in the states most heavily affected but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. The jobs they hold might otherwise be held by citizens or legal immigrants. The public service they use impose burdens on our taxpayers. That's why our administration has moved aggressively to secure our borders more by hiring a record number of new border guards, by deporting twice as many criminal aliens as ever before, by cracking down on illegal hiring, by barring welfare benefits to illegal aliens. ...

We are a nation of immigrants. But we are also a nation of laws. It is wrong and ultimately self-defeating for a nation of immigrants to permit the kind of abuse of our immigration laws we have seen in recent years, and we must do more to stop it.

That was then, of course, and this is now.  Is anybody so blind as to imagine that the fact that the Presidents who were applauded or ignored for restricting immigration were all Democrats had nothing to do with the judges' treatment of the issue?  As happens all too often, modern judges care more about reaching the desired political outcome than upholding their oath of loyalty to the plain meaning of the law as written.

The Coming Pendulum

We've warned of the dangers which are inherent in our public policy taking wild swings as political agendas come and go.  Although we applaud the idealism of Education Secretary Betsy DeVos' plans to hopefully break teachers' unions by introducing competition that will improve America's schools, we fear that her proposed fixes will increase Federal power over our schools and lead to far worse problems with the next swing of the policy pendulum.

The judiciary is a much bigger and much older problem; this outrageous ruling is far from the first example of judicial overreach.  The Supreme Court saw fit to invent a hitherto-hidden Constitutional right to gay marriage in Obergefell, and a right to privacy which implied a woman's right to terminate a pregnancy until just before birth in Roe v Wade.  These rights were created out of thin air without any sort of legislative action by our elected representatives and over the horrified opposition of a significant minority if not actual majority of American citizens.

Liberals have applauded the judiciary short-circuiting all that pesky politicking and political compromise that would be needed to get what they want via the normal legislative process.  Unfortunately, using the court to ram your agenda down the country's throat has a pretty sordid history with ghastly long-term results.

When the Dred Scott decision foreclosed all compromise and forced Northern abolitionists to enforce slavery, the stage was set for the Civil War.  Similarly, by handing total victory to the pro-aborts, Roe v Wade stopped the political process by which such disputes are supposed to be resolved and touched off a low-grade civil war in which handfuls of people continue to die to this day - aside from the tens of millions of slaughtered unborn infants who don't count, of course.

What the Founders Foresaw

Our Founders realized that the judiciary, like all other agencies which are populated by human beings, might be tempted to get above itself.  In their wisdom they provided two checks on judicial power.

First, federal judges are appointed for life, but only "during good behavior."  Thus, they gave the legislature the power to impeach individual judges.  In the history of the Republic, a mere 15 judges have been impeached, of which 8 were convicted and 3 resigned before the Senate could try them.

This power is used seldom enough that it doesn't really limit judicial overreach, a phenomenon which goes back to the Warren Court if not back to Marbury v. Madison while our Founders were still alive and holding office themselves.  Nevertheless, it's there, and given a strong enough impetus, our generally lazy Congress might decide to get off its tail and kick the worst judicial tyrants off the bench, to, as the saying goes, "encourage the others."

Cleaning up the mess made by leftist judicial appointments by removing them individually would, at best, take a long time.  Knowing that the courts might go awry systemically in addition to individually, the Founders also gave the House and Senate the power to limit courts' jurisdictions, rearrange their composition and districts, and generally rearrange the judicial ecology however they see fit.

To bring a suit in Federal court, you have to have "standing," that is, you must be an actual party to the matter being disputed, and the matter must fall under the court's jurisdiction, that is, it must relate to something over which that court's judges have been granted authority by Congress.

By restricting jurisdictions, the House, Senate, and President together can take such matters as immigration, foreign policy, and any other topic away from judges simply by passing a law that removes such matters from the Court's jurisdiction.  Despite being in the Constitition from Day One, this has never actually been done in our history, even though it would solve all manner of nasty problems.

For instance, what business do American courts have making rulings over the supposed "rights" of foreign citizens, located in foreign countries, to come into our country?  Not being citizens, they have no Constitutional rights, and not being here, they don't even have any logical right of appeal to custom or common law.

Similarly, the Left Coast's 9th circuit, famously overruled by the Supreme Court 80% of the time on appeal, could be split into several different districts with new judges appointed to outnumber the leftover lefties.  Or, even more Machiavellian, the 9th Circuit could be abolished, thus putting all its judges on the unemployment line, and their function replaced by entirely new circuit courts created for the purpose and populated by a completely fresh slate of judges.  It's all within the power of Congress should they choose to pass a bill saying so.

Despite the technical Constitutionality of this approach, though, as with Secretary DeVos increasing federal oversight of education and the Democrats' decision to remove the filibuster with respect to many of Mr. Obama's appointments (to their current regret), rearranging the court system would be a grave step toward amplifying the swings of our political pendulum in unpredictable ways.

On the other hand, we can easily imagine a situation where Mr. Trump's base is so enraged at the judiciary blocking him from fulfilling one of his major campaign promises, supported by the plain text of black-letter law as well as common sense, history, and the principles described by the Founders, that they'd demand that Congress remove immigration regulations from judicial review entirely so as to eliminate the problem once and for all.

As with limiting the filibuster, this is a slippery slope we'd rather not traverse.  If the judges were wise, they'd be worried about enraging the vast numbers of Americans who just exercised their awesome power by electing a President over the massed opposition of everybody who's anybody, not only in the United States, but in the entire world.

Petrarch is a contributing editor for Scragged.  Read other Scragged.com articles by Petrarch or other articles on Law.
Reader Comments

This is one of the more sensible commentaries I have seen on the problem of enforcing section 1182(f) of immigration law.
But the real problem underlying any present or future attempt to change or enforce any law or Executive Order by President Trump, is a more dire one.
It is the growing Revolt of the Bureaucrats in Washington, secure in the belief, nurtured by years of Democrat politicians, and acquiesced in by a generation of Republican pols as well, that "We know Best."
Couple that with the unexpected victory of a candidate hated and excoriated by the Press, and you have an unstable Washington.
Thus, we are seeing "Draft Memos" coming from various departments turned over secretly to the press. These are insider deliberations by the duly-elected government about possible future actions. The people who leak these are criminals.
If I were Trump, Job One would be to catch a few of these, and either fire or prosecute them,depending on the offense, and do so in full public view. If Congress could also strip them of their retirement benefits, this stuff would stop quickly, and the Trump Agenda could move forward.

February 19, 2017 9:16 PM

@J.H.Ransom: I totally agree with your comment. These Judges feel that since they are elected for life, they are untouchable and invincible. They need to be proved wrong.

March 18, 2017 12:41 PM
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