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Conservative Review

The president should not play ball with illegitimate border lawsuit

Could a third-party organization get standing to select any district court it wants to control and determine who is admitted into this country at the international border? That is the question in light of the ACLU’s lawsuit against Trump’s asylum regulation. It is also the question the Trump administration needs to emphatically answer right now before lending legitimacy to this abuse of separation of powers.

On Tuesday, like clockwork, the ACLU and a bunch of open-borders groups sued the Department of Justice’s latest asylum regulation that simply affirms the integrity of the system. The proposed rule would limit asylum to those who didn’t game the system and pass up other countries that are a party to the asylum treaty before seeking asylum in the U.S. The lawsuit was so contrived that it was likely drafted even before the regulation was published, because it erroneously names John Sanders as head of Customs and Border Protection when the current acting commissioner is Mark Morgan.

Trump has the opportunity to cut this off and call upon his attorney general to declare that there is no legitimacy to this lawsuit and decline to send lawyers to the San Francisco court for this dog-and-pony show.

Forum-shopping and nationwide injunctions are illegitimate

It is simply absurd and illegal for a district court not on the border to rule on a national – even international – issue affecting entry at the border. Most of the family units are coming in at the Texas border, and none of them are in the Northern District of California. Only two percent coming in at the California border at all. Why did the ACLU go there? Because it has a 13-1 majority of Democrat appointees, and that is the district that has single-handedly vitiated the rest of our existing immigration laws.

It’s time for the Trump administration to once and for all declare that nationwide and universal injunctions by district judges are unconstitutional and violate the inherent limitation of “cases and controversies” spelled out in Article III powers. This will affect the rest of his presidency and the future of the republic on every issue, but most certainly on border security. Now is the time to force that issue.

There is no judicial jurisdiction over foreign affairs

It is momentous that the ACLU chose the Northern District of California, a point that must be publicized by the president and his attorney general. This is the very district court that, in 1996, said that the “exclusion of aliens is a fundamental act of sovereignty” and that “the right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. (Encuentro del Canto Popular v. Christopher, N.D. Cal. 1996.) There is nothing more to talk about. Even if the Left is correct about the reading of base asylum statutes, which it is not because asylum is discretionary and never supersedes national security concerns, the president always has the authority to shut it off. It’s not just from statutory 1182(f) delegated authority, but as this very court said, from his own Article II authority over entry at the border. The president can deny entry to anyone he wants, certainly when we are seeing dozens of terrible effects on the American people and on the migrants themselves because of the rush at the border and the empowerment of the cartels and MS-13.

Once Trump establishes this is a foreign affairs issue, it destroys the Left’s next argument. The ACLU alleges that the DOJ violated the Administrative Procedure Act (APA) by not waiting 30 days to potentially implement the policy. Aside from the numerous reasons why the APA doesn’t apply here (see Alito’s partial dissent in the census case), 5 U.S.C. §553(a)(1) explicitly exempts a “foreign affairs function” from the APA.

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