During the tenure of this administration, one would think that I would have grown accustomed to seeing the federal judiciary overstep its bounds. We are desensitized by the media’s and the generic left’s daily or hourly outrage. We just don’t care anymore, they’re whistling in the wind.
But what about these judges? Should we ever reach the point where we are desensitized by their judicial creep? By no means!
Federal judges have accumulated power over the decades. Their decisions and enunciations from high atop Mount Olympus carry weight through the ages. And we continue to see judges who stick their noses into the exclusive business of the executive. I have written about this topic, here and here.
Yesterday, a federal judge from Washington ordered the Department of Homeland Security to halt a deportation proceeding as the DOJ processed an appeal.
The Washington Post said this,
“A federal judge in Washington halted a deportation in progress Thursday and threatened to hold Attorney General Jeff Sessions in contempt after learning that the Trump administration started to remove a woman and her daughter while a court hearing appealing their deportations was underway.
“This is pretty outrageous,” U.S. District Judge Emmet G. Sullivan said after being told about the removal. “That someone seeking justice in U.S. court is spirited away while her attorneys are arguing for justice for her?”
“I’m not happy about this at all,” the judge continued. “This is not acceptable.”
This is really quite strange. Something being “not acceptable” is not a legal justification. Neither is a perceived violation of a judge’s personal opinion as to what process the executive should provide illegal aliens.
Here is the Post’s article on Session’s revision from June for those who are interested in the coverage of it at the time.
Attorney General Jeff Sessions provided a clear legal basis for the reversal of an intra-executive “court” decision. His determination can be found here. Here is the relevant section.
The Immigration and Nationality Act (“INA”) authorizes the Attorney
General to grant asylum if an alien is unable or unwilling to return to her
country of origin because she has suffered past persecution or has a well-
founded fear of future persecution on account of “race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1)(a), (b)(i). A recurring question in asylum law is
determining whether alleged persecution was based on their membership in a
“particular social group.” Over the past thirty years, this question has
recurred frequently before the Board and the courts of appeals, and the
standard has evolved over time.
It boils down to this: The legislative branch failed to define a category of aliens. The legislative branch made it incumbent upon the Attorney General to make determinations. The executive branch operates immigration courts and the Board of Immigration Appeals, housed within the Department of Justice. The Attorney General is the head of the Department of Justice. The Attorney General is a part of the executive branch.
The executive branch made a determination about who could and could not claim asylum pursuant to the INA. The executive branch then reversed that determination.
There is only one legal question here.
Does the executive have the authority to make these determinations?
If no, then the federal judge should invalidate all determinations, including the original one that found that domestic and gang violence could justify, to a certain degree, credible fear claims.
If yes, then the federal judge has no jurisdiction in arguing with the findings of one of the political branches of government, which is exercising its authority pursuant to law passed by the other political branch of government.
It is perplexing that judges continue to insert themselves into areas where they are not wanted or areas where they are prohibited. We know that this is not just an artifact of difficult law or ambiguous relationships between the branches of government because we have seen this time and again in areas that are more clear cut than this. (See any order related to DACA).
Just as the executive cannot issue an order saying that a judge must rule a certain way, a judge cannot tell the executive how to exercise its lawful authority under the constitution or statute.
Interestingly enough though, there is one method that allows one branch to tell another branch how it is to do its job.
In previous articles, I have suggested several solutions in terms of dealing with these rogue judges.
2: Supreme Court correction
3: Congressional action on a particular judicial power.
The third option is relevant here. It was discussed previously as a solution for nationwide injunctions where congressional action would entail expressly granting or proscribing that power. Here, congressional action would entail jurisdiction stripping and assertions of sovereign immunity.
Back in late 2017, I was fascinated by the oral arguments in Patchak v. Zinke. This case involved an act of congress that would prevent the federal courts from hearing cases related to the land mentioned in the act.
In a 6-3 decision, the Supreme Court affirmed that Congress had stripped the federal courts of their jurisdiction over the case. The concurrences highlighted that if one is concerned about congress determining the outcome of a single case and thereby exercising de facto judicial power, the federal government can be immune from lawsuits. This is known as sovereign immunity. In most cases, the federal government has waived sovereign immunity, but it retains its ability not to.
Jurisdiction stripping is an implied power rooted in Congress’ Article I, Section 8 power to constitute tribunals inferior to the Supreme Court and in Sections 1 and 2 of Article III where congress is to ordain and establish inferior courts and where congress may provide exceptions to and regulations for appellate jurisdiction.
The judiciary must remember its place. It is the inferior branch of government, designed to exercise the least amount of power in the least menacing fashion.
Judges are supposed to be dispassionate interpreters of law. Instead, especially with immigration, we find emotional, partisan, and self-aggrandizing judges who are willing to subvert our constitutional order for their preferred policy outcomes.
This trend reaffirms why the federal courts should lose their jurisdiction over these matters. These determinations have to be made by political branches, responsive to the people. They have to be made by branches capable of a dispassionate review of data and law. And the determinations have to be made in the context of a single branch’s authority as defined by the statute.
Can anyone else explain to me why ONE unelected and unaccountable lawyer gets to dictate immigration policy for the nation?