Here’s news you may have missed. On Wednesday evening, while most of the American political world was debating the impact of Robert Mueller’s testimony, a federal judge in California shut down the Trump administration’s latest regulatory attempt to ameliorate the grave immigration and humanitarian challenges on the southern border. Judge Jon Tigar of the Northern District of California issued an injunction blocking implementation of a new Trump-administration interim final rule that would, in the words of the court, “categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country.”
The Trump rule is designed to deal with an overwhelmed asylum system that is collapsing under the weight of a flood of applicants. Arguably, the overwhelmed system has even become a reason for the surge of migrants from the south. Asylum claimants may remain in the country legally while their claims are processed, and the backlog of claims means that they often can remain in the United States for a long time — some use the opportunity to essentially disappear in the interior.
In fact, the appeal of an asylum claim is so strong that immigrants are often actively seeking to surrender to border officials rather than escape, undetected, into the country. In other words, they’re “not trying to become undocumented immigrants. They’re trying to become refugees.”
One way to help stem the tide is to change the law, and that’s what the Trump administration is attempting with its interim final rule. Rather than granting illegal entrants the right to claim asylum regardless of how they enter the country, the Trump administration is attempting to force them to apply abroad. So long as the applicant can do so from a safe place, it’s a sensible policy. It discourages dangerous crossings, it can relieve the burden on overwhelmed border facilities, and — so long as asylum adjudications are sufficiently resourced — it channels applicants into a proper legal process that complies with international law.
But good luck substantially changing immigration law through regulations alone. If there’s one thing we’ve learned across two administrations, it’s that it is easy to find a court that’s hostile to reforming our immigration system through executive action. And judicial skepticism, from left and right, is entirely appropriate. When Congress adopts a comprehensive series of statutes, the executive’s ability to modify or alter those statutes through regulatory rulemaking — absent express delegations — is (and should be) profoundly limited.
For example, in 2015 when the Fifth Circuit Court of Appeals blocked implementation of Barack Obama’s DAPA program, it noted that Congress had enacted a “specific and intricate plan” that “prescribes how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.” So DAPA is foreclosed by Congress’s careful plan; the program is “‘manifestly contrary to the statute.’”
In Wednesday’s decision, the judge, an Obama appointee, made a similar declaration, ruling that the Trump administration’s interim final rule “fundamentally conflicts” with key statutory requirements and that it’s “inconsistent with the design and structure of the statute as a whole.”
The case is complex, and it’s important to remember that this is district-court opinion. It will be appealed to the Ninth Circuit and then, ultimately, to the Supreme Court. As a practical matter, for the Trump rule to have any effect on the southern border, Trump would have to win a Supreme Court case and win reelection (since the next Democratic president would inevitably reverse each and every contentious Trump-administration executive action).
So, here we are, back to the immigration stalemate that’s plagued America for more than a decade. There is no way to resolve the challenges on the southern border without congressional action, and Congress is so dysfunctional (and America is so polarized) that there’s no way to believe that Congress will act.
In fact, the immigration stalemate mirrors the larger national stalemate. From the moment that Obama bragged about the power of his “pen and phone,” both parties have perfected a method of judicial resistance that is crippling executive authority.
The pattern goes like this: A president seeks congressional action, and Congress refuses to give him what he wants. The president then announces that “Congress has failed to act” and that therefore he must. The president enacts a policy or regulation. Opposing activists and state attorneys general immediately file suit in a favorable jurisdiction and obtain an injunction. The policy then goes into a state of suspended animation for months or even years as the case winds its way through federal courts. Stalemate.
That’s why grand pronouncements like this from Kamala Harris are so meaningless:
As president, I will give Congress 100 days to get their act together and pass reasonable gun safety laws. If they don’t, I will take executive action. Thoughts and prayers are not enough. We need action.
— Kamala Harris (@KamalaHarris) July 26, 2019
Her action would be challenged, enjoined, delayed, and likely ultimately blocked. In other words, if you like the legal status quo, this is your golden age. Yes, regulatory changes nudge the law this way and that. Congress will continue to fund the bloated federal beast.
Bipartisan legal resistance means that not even the imperial presidency can break the logjam. That’s good. But bipartisan congressional breakdown means that the American body politic can’t adequately respond to real challenges — even when present conditions grow intolerable. The nation will have to suffer the consequences of that failure until the pain of dysfunction exceeds the political cost of compromise.
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