Daniel Horowitz · July 11, 2019
The far-Left Democrats are trying to build momentum to abolish ICE and all enforcement of our sovereignty. Politically, it would take them 100 years to accomplish that goal, if ever. But the lower courts are doing it for them overnight with no pushback from the other branches of government.
Thanks to the fecklessness of the other branches, there is literally nothing a single forum-shopped district judge can do that will be regarded as out of bounds. They have nullified all immigration laws, they have abolished the essence of the census, they have commandeered Trump’s twitter account, they have taken control over issuance of press badges at the White House, and they have appointed themselves supervisors over which lawyers DOJ can send to represent the administration in their royal courts. Now they are going after lesson plans.
On Tuesday, Ketanji Brown Jackson, a district judge in D.C. who is often touted as the next liberal SCOTUS pick, issued an injunction on two potential deportations of illegal aliens because she questioned the legitimacy of a lesson plan at U.S. Citizenship and Immigration Services (USCIS) for training asylum adjudicators. She said that the new lesson plans drafted on April 30 might make it tougher for credible fear claims to be granted, even though they were implemented to actually weed out fraudulent claims. Thus, two illegal aliens from El Salvador who were ordered deported through the expedited removal process after losing their bid for asylum petitioned the judge to block the deportations, even though statute stripped the federal courts of jurisdiction to review such a case.
Never mind the fact that the sole discretion for guidance in dealing with initial credible fear interviews and appeals is up to the DHS secretary and the attorney general. Beyond that, U.S.C. § 1158(b)(2)(C) states, “The Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1).”
The key issue here is that such determinations of credible fear for those placed in expedited removal are completely unreviewable by federal courts, because Congress barred courts from jurisdiction over the entire issue. As the Congressional Research Service explains of expedited removal, a statue that passed the Senate unanimously in 1996, “The jurisdictional bar applies to claims that an immigration officer improperly placed an alien in expedited removal proceedings; challenges to an immigration officer’s credible fear determination; arguments challenging the procedures and policies implemented by DHS to expedite removal; and claims contesting the expedited removal order itself.”
Those jurisdictional bars are spelled out very clearly in 8 U.S.C. §1252(a)(2)(A). Yet Judge Jackson, in an act of civil disobedience against immigration law, says she will review the case anyway because DOJ’s arguments “raise complicated questions of statutory interpretation that will require briefing and evaluation.”
But if she hasn’t determined that she even has jurisdiction to decide the case, how can she then definitively decide to issue an injunction? As Chris Hajec, director of litigation at the Immigration Reform Law Institute, told CR, “I have never heard that this ‘jurisdiction-to-decide’ includes the jurisdiction to issue injunctions. How can a court exercise a power it hasn’t yet decided it has? In fact, staying removal doesn’t help the court decide whether it has jurisdiction to stay removal.”
The law is so clear that even the Ninth Circuit said in 2011, “Congress expressly deprived courts of jurisdiction to hear a direct appeal from an expedited removal order.” (United States v. Barajas-Alvarado (9th Cir. 2011))
Congress has plenary power over immigration. “Over no conceivable subject is the legislative power of Congress more complete than it is” over immigration (Fiallo v. Bell, 430 U.S. 792 (1977)). Congress also has plenary power over the jurisdiction of the courts. This holds true for even the Supreme Court and certainly for inferior courts, which, according to Edmund Randolph, the nation’s first attorney general, “must have slept forever without the pleasure of Congress.” There are multiple statutes added to the INA in 1996 stripping the federal courts of jurisdiction to hear numerous cases regarding deportations. But the judge is violating the essence of the Constitution.
This is a growing pattern with the lower courts not only engaging in civil disobedience against immigration law, but blatantly violating Congress’ ironclad power to strip their jurisdiction. They did this in the case of TPS amnesty and in several deportation cases, as well as creating habeas corpus rights for illegal aliens explicitly barred by the 1996 law.
Waiting for the Supreme Court to police its own branch is no longer an option. SCOTUS allows the damage to percolate for years before considering the cases. Then, even when it overturns the lower courts, the litigators come back in 999 other cases and get the lower courts to ignore the Supreme Court. Just yesterday, a Michigan judge, Victoria Roberts, implied that she might place another injunction on Trump’s “travel ban,” even though it was categorically affirmed by the Supreme Court!
As acting USCIS Director Ken Cuccinelli observed:
This is also yet one more reminder that those Republicans suggesting that we need new laws to fix the border are living in an alternate reality. It is impossible to pass laws stronger than the expedited removal law in 1996, which categorically kicked the courts out of these cases. If our response to courts violating the law and hearing the cases they are forbidden to touch is to pass new laws that will be ignored by the courts, we are fiddling with a futile exercise while our border burns.