On RedState, we’ve posted repeatedly on how a small number of hyper-partisan judges are using the cover of a legal decision to impose their preferred policy goals on the nation by way of nationwide injunctions and are working actively to stymie any effort by the Trump administration to create its own policies. While malicious decisions have affected all manner of programs, they are most pronounced and frequent in those areas most cherished by progressives, in particular, immigration.
In its very first days, the Trump administration was forbidden to place any limits on travel to the US from failed states or state sponsors of terrorism. It took several trips to the Supreme Court before the Resistance was overcome. One of the most egregious was the decision to forbid the Trump administration from ending the Deferred Action for Childhood Arrivals (DACA) program. This program, patently illegal and created by a simple memorandum signed by Janet Napolitano, should have been easily quashed, but it wasn’t. Now at least three federal judges have taken the position that a memo written four Homeland Security secretaries ago cannot be rescinded.
Now that we are dealing with a crisis on our border with Mexico, the Resistance judges are back in action to try to prevent the US government from basically refusing entry to anyone.
This is the case: A Tamil man, Vijayakumar Thuraissigiam, was picked up by the US Border Patrol some 25 meters inside the United States. He was slotted for expedited removal and made a claim of fear of persecution. He was giving a screening by an asylum officer who called bullsh**. An immigration judge agreed and he was ordered deported. In a sane system that would have been that. But, alas and alack, that is not what we are dealing with.
Thuraissigiam filed a habeas petition in federal district court, arguing that his expedited removal order violated his statutory, regulatory, and constitutional rights. The district court dismissed the petition for lack of subject matter jurisdiction, concluding that § 1252(e) did not authorize jurisdiction over Thuraissigiam’s claims and rejecting his Suspension Clause arguments.
A federal district judge threw the claim out ruling that under federal law that federal courts don’t have jurisdiction over asylum claims. He appealed to the Ninth Circuit and guess what? They concluded that granting immigration judges final say in deportations violates the Suspension Clause of the US Constitution: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
What this decision did was two things. First, it seems to violate the Constitution itself (Article III, Section 2) which allows Congress to remove some cases from the courts and disputes between illegal aliens and the US government are not a matter of original jurisdiction. Second, it gives every single illegal alien the right to a habeas corpus hearing before they can be deported. This means it is basically impossible to deport anyone because it will not be possible to house a few hundred thousand illegals for several months, each, while they await a court date. This means they will be paroled until their court date. That means we’ll never see them again.
This nonsense has to stop. Congress passes laws. In this case, they decided to create a separate Article II system of judges to decide immigration cases. The action by the Ninth Circuit is nothing more than the aggrandizement of power by the federal judiciary. Instead of being told what their authority is, they are unconstitutionally deciding what they will do. If the Supreme Court will not act to smack down this assault on the freedom of all of us, then the Executive must decide that it simply will not obey these decisions.
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