Democrats are panicking that, with Amy Coney Barrett's impending confirmation, conservatives are on the cusp of a long-term five-seat majority on the Supreme Court. If only that were true. Justices Brett Kavanaugh and Neil Gorsuch have already demonstrated that they are not on the level of Amy Coney Barrett, so at most, we will likely have only three reliable originalists on the court. Nowhere is this more evident than on the issue of illegal aliens continuously getting standing to block deportations.
For over 130 years, the Supreme Court has established a simple principle that all immigrants, and certainly those here illegally who commit crimes, are only in this country at the pleasure of the political branches of government and can be removed at any time without interference from the courts. This principle "has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government," not "merely" by "a page of history … but a whole volume" (Galvan v. Press). The concept is "inherent in sovereignty," consistent with "ancient principles" of international law, and "to be exercised exclusively by the political branches of government" (Kleindienst v. Mandel).
The lower courts and the leftists on the Supreme Court have gradually chipped away at this principle in recent years, and unless we get an originalist majority to push back against this trend, immigration enforcement will go the way of abortion regulations. Rather than upholding this doctrine, Kavanaugh and Gorsuch appear to be playing a dangerous game of flirting with the notion that courts can second-guess deportations of even criminal aliens by gradually granting them an array of due process they simply don't have in our immigration law.
Last Wednesday, the Supreme Court heard oral arguments in Pereida v. Barr, one of many cases in which criminal aliens are trying to litigate a right to remain in the country. Mexican citizen Clemente Pereida was convicted of stealing the identity of a citizen in order to obtain employment in Iowa as an illegal alien and is now seeking relief from deportation, despite a denial from an immigration judge and the Eighth Circuit Court of Appeals. Even without stealing identity, he came here illegally and should have no legal standing to remain in the country. This case should never even have been in court, yet there were some disturbing comments from justices Kavanaugh and Gorsuch indicating a sea change in the legal thinking of illegal immigration.
Law360 reports that Justice Kavanaugh "expressed doubt over the government's claim that immigrants facing deportation carry the burden of proving they are eligible for immigration protections despite being convicted of certain crimes, when the record surrounding such convictions is incomplete or unclear."
"He's lived here for 25 years in the United States, has a wife and three kids here, one of whom is a U.S. citizen, works construction and cleaning, had a fraudulent Social Security number which got him a $100 fine but no jail time under state law," Justice Kavanaugh said. "That seems a thin reed to make someone categorically ineligible for cancellation of removal."
This statement is very concerning. Pereida's life story doesn't matter to the law, and identity theft is a very serious crime that has devastating effects on its victims. Moreover, this man is here illegally, so he has no right to remain regardless of whether he committed a serious crime or no crime at all. The entire philosophy behind sovereignty and the long-standing judicial doctrine that the executive branch has plenary power over these decisions is rooted in the fact that the burden of proof is on the alien to show that he is entitled to remain in the country.
Yes, the attorney general "may" grant cancellation of removal to some illegal aliens, but since when did that give aliens a judicial right to demand this voluntary act of leniency? The onus is on the alien to show that his record does not fit the standard of "crimes involving moral turpitude," and if the record is too incomplete to determine that, he is on the losing end of the argument. As the law clearly states (8 U.S.C. § 1229a(c)(4)(A)(i)), "An alien applying for relief or protection from removal has the burden of proof to establish that the alien … satisfies the applicable eligibility requirements." Unlike with criminal punishment, request for an immigration benefit places the burden of proof on the individual, not the government.
Then there is Neil Gorsuch. According to Law360, Gorsuch was concerned "that immigrants convicted of misdemeanors, where the underlying criminal statute is vague or broad, may struggle to produce sufficient court records to show that their conviction shouldn't bar them from deportation relief."
This has been Gorsuch's game from day one. He takes simple concepts and makes them complicated. A half-century after the passage of the Civil Rights Act, he suddenly felt that the definition of human sexuality in the context of sex discrimination was vague and could possibly include transgenderism! In Sessions v. Damaya, he struck down an entire section of criminal law governing the deportation of clearly violent aliens because he felt the statute was "too vague." As I noted at the time, even if he was correct about the vagueness in the law, aliens have no due process right in the context of the vagueness doctrine to know what is a deportable offense. They remain here at the discretion of the political branches of government until they are naturalized. Thousands of criminal aliens have remained in this country because of that opinion.
What was further disconcerting and downright offensive is that Gorsuch dismissed and downplayed Pereida's offense on account that he "wasn't using a Social Security card to defraud anybody of anything, but just to get a job."
Tell that to the millions of victims of identity theft! It often takes years to clean up the financial mess, the endless purchases under the victim's name, and the watchlists that he was placed on as a result of the illicit activity. It has particularly devastating consequences for the child victims, who begin their adulthood saddled with all of the criminality, fiscal liabilities, and taxes of these illegal aliens. Hispanic Americans with Latino-sounding surnames are most vulnerable to such theft. Illegal aliens seeking employment will often be given the stolen Social Security numbers of children by the smuggling industry, because that will take longer to be detected.
According to the Center for Immigration Studies, "Eight of the 10 states with the highest percentage of illegal aliens in their total population are among the top 10 states in identity theft." In Arizona alone, over one million children are victims of stolen identity, more than four times the national rate.
The fact that we have two of Trump's appointees accepting the Left's legal and philosophical outlook on sovereignty and due process is very concerning. Kavanaugh already said during his confirmation hearings that he disagrees with the plenary power doctrine (which is settled precedent) as expressed in a great dissent by his former colleague on the D.C. federal appeals court, Karen Henderson, that illegal aliens are considered to be standing outside our boundaries. He also wrote a shocking 7-2 opinion (in Nasrallah v. Barr) ruling that illegal aliens have access to judicial review to fight a denial of relief from deportation under the United Nations Convention Against Torture ("CAT"), despite a clear statute stripping the courts of jurisdiction to review such a case. Gorsuch signed on to the opinion, while Thomas and Alito dissented.
In addition, as Art Arthur, a former immigration judge and fellow at the Center for Immigration Studies, observed, Kavanaugh used the term "non-citizen" 19 times instead of illegal alien in his concurrence in Preap, an immigration case from last year. Judges are usually very precise with these sort of terms, and technically, his use of this word actually made a few of his statements factually incorrect (see Arthur's column for more).
It's also important to remember that we have several million criminal aliens in this country out of 12-20 million illegal aliens. Those individuals should be out of this country immediately, according to any standard. Yet it takes years to remove even the worst gang members because each one can encumber his deportation order in court indefinitely. Pereida had his first court hearing in 2009! As Jessica Vaughan, director of policy studies at the Center for Immigration Studies, told me, "What is especially concerning about this case is Justices Gorsuch and Kavanaugh's apparent willingness to intrude on the clearly established executive branch authority to adjudicate an immigration benefit – in this case, cancellation of removal."
The consequences are enormous, and we are already seeing them in the increased flow at our border because so many illegal immigrants rightly believe they can litigate themselves into legal status. "We can't have every illegal alien who is told to go home, every failed applicant for immigration benefits, or every unqualified visa applicant taking their case to the federal courts," warned Vaughan. "We can't have federal judges and Supreme Court justices deciding routine immigration applications."When it comes to immigration and judicial picks, Trump was given bad advice and has swung and missed on two occasions. It is to be hoped that Barrett will not result in a strikeout. The bad news is that we still need two more originalist justices simply to uphold our national sovereignty and long-standing Supreme Court precedent.