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Horowitz: Litigation invasion: Losing our border one lawsuit at a time

Imagine you are a liberal judge on the federal bench. You know that the entire political system, which includes all three branches of government and both political parties, vests you with unlimited power to dictate policy with an injunction. Regardless of the law, Constitution, rules of standing for a judicial case, past and recent Supreme Court precedent, political fallout, or national security consequences, you can declare an opinion and have that policy unquestionably become “the law of the land.” Why wouldn’t you try your hand at being a judicial version of Kim Jong-un?

At some point, we should stop blaming the judges for legislating with impunity and start blaming the other branches for not only ceding that power, but actively giving effect to the judges’ usurpations of law.

On Friday, the Ninth Circuit, after illegally granting standing to illegal aliens who never entered our country, ruled that the Trump administration can’t return bogus asylum-seekers to Mexico. This is a policy Trump worked out with the Mexican president. This is exactly why the Supreme Court said in Mathews v. Diaz (1976) that “decisions in these matters [immigration] may implicate our relations with foreign powers” and therefore, these “decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary.”

The “remain in Mexico” policy is largely responsible for bringing monthly border numbers back down to 35,000 from 140,000 last summer, when the policy was first implemented. The minute the court issued the ruling, and before it later agreed to temporarily stay that ruling, there was a rush on our border in El Paso. The danger of a mass migration at our border during a global pandemic cannot be overstated.

Moreover, Central American governments have already warned us that among the caravan members are people wanted for homicide, kidnapping, extortion, and terrorism. Some felons are known members of the transnational gangs MS-13 and 18th Street.

No judge has the power to trigger such an international incident. At what point will the president finally say “enough is enough” to illegal rulings creating standing to sue and a right to immigrate for caravans?

The Trump administration routinely asserts its powers as an independent branch of government to ignore congressional subpoenas, a practice numerous presidents from both parties have used on a regular basis. Yet lower court judges can even decide border and foreign policies without any opposition?

In reality, a judge has no power to demand that foreign nationals be brought into the country. Judges can grant relief to a plaintiff, for example, by vacating a conviction. They can get government off the backs of an individual citizen. They can’t, however, demand that the executive branch take action to bring in more people at the border. That simply is not a justiciable issue for a number of reasons.

Undoubtedly, White House lawyers will tell the president to just stay the course and continue appealing to the Supreme Court. But they are missing the point. You can’t govern the country with your opponents winning on a strategy of death by a thousand lawsuits. The Supreme Court has already upheld the president’s power to deny entry under 8 U.S.C. §1182(f) in crystal clear terms. That opinion, in itself, was merely upholding a 1993 opinion that affirmed the president’s right to block entry, even in the context of asylum claims.

Yet the open-borders advocates are still coming back for more disruptions of our border in numerous ways.

Consider the following:

  • On Thursday, a federal judge in Washington state ruled that Trump can’t use funding for the border that was originally earmarked for a naval base in the state. Now judges appropriate money too! This issue was already litigated twice and went before the Supreme Court to be reversed in California and then in Texas. But this has not deterred another judge from issuing an injunction, nor will it deter the next liberal judge.
  • The travel ban, which was so strongly upheld by the Supreme Court, is half dead because the administration is still deterred by endless lawsuits. In fact, a judge recently ruled that USCIS must hand over more documents related to the travel ban. What happened to Trump v. Hawaii?
  • While the Supreme Court finally rolled back the insane injunctions on the public charge rule, there is still new litigation to try to pick away at its implementation.
  • The Supreme Court has upheld the concept of “expedited removal” for over 20 years, a statute that bars courts from hearing certain deportation cases. Yet the lower courts had no problem violating the law by hearing the case anyway … and ruling against the law!
  • At the same time judges were inviting the world to invade our border, another district judge ruled that Ken Cuccinelli’s appointment as acting USCIS director was illegal and that every decision he signed is void. Talk about a judicial veto power never mentioned in the Constitution!

Forget about Ilhan Omar’s bill to abolish immigration enforcement. The courts are doing it for free and without any backlash. But they only have the power that the other branches allow them to wield. When will there be a turning point against judicial usurpations? Will it take another border crisis?

One last thing…
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