Beating a Dead Horse, a Broken Record, and a Federal Judge Opposing Trump

Sound familiar? A federal judge is again dictating immigration policy.

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.

1: Impeachment

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?

No. 1-5

Congress needs to grow a pair and reassert its authority and certainly impeaching one of these activist judges would be a good thing and send a clear message.


I'm going to be a voice of decent on this particular case. I've seen a lot of outrage that the judge slapped down the government for the early deportation and a lot of over generalization from this case to judges in general.

The facts, as I understand them, the asylum seekers had filed appropriate appeals. The court and the government had an agreement to hear out the case prior to action being taken. The government ignored that agreement and started the deportation anyways. In this scenario I see the government as being on the wrong side. Looking at the actions on their merit themselves (and not through a biased lens of larger judicial activism) there was a challenge in place that was set to be heard and ruled on through the due process of the courts. The government (likely through an administrative error, although the reason for the early deportation has not been discussed at all that I've found. Occum's razor suggests that it was a prior scheduled event and that the appropriate people were not informed of making it a case of negligence rather than intent.) sort circuited the court and went straight to action without affording the asylum seekers their due process. I happen to think that that is a huge problem. I know that there are huge issues with immigration, but we can't solve them by acting authoritarian over anyone coming seeking help. That doesn't mean that we throw open the boarders, but it also doesn't mean that we kick people to the curb without listening to them.

Anyways, I appreciate that your piece was readable, and grounded in a more rational conversation on the larger problems. There's a piece up on RS that is nothing but extreme hyperbole and full of over generalizations that I couldn't bring myself to finish. It's positions like that one that give the left the ammunition to overgeneralize the right as xenophobic assholes that don't give a damn about the plight of others.

Thomas Swander
Thomas Swander

Simply absurd. More TDS.

Thomas Swander
Thomas Swander

That sir, is absurd. We are a nation of laws and people who cross the border ILLEGALLY are criminals. How, under God's blue sky, is that racism? Just more Trump Derangement Syndrome. It's really sad.

E.E. Bokbok
E.E. Bokbok

It's a terrible mess with the laws, the courts, and the lack of clarity.

But however terrible that might be, it's nothing compared to the current practice of Trump/Republicans sending innocent people to their deaths because of racism.