By operating outside the law or doing so in irregular ways, Trump made judicial intervention inevitable.
By operating outside the law or doing so in irregular ways, Trump made judicial intervention inevitable.
T here is crying and gnashing of teeth in the White House over the obstacle that federal district judges have become to President Trump’s effort to make good on the mass deportation promises of his campaign. The president’s immigration strategist, Stephen Miller, has even taken to calling them “communist” judges — members of the “rogue, radical left judiciary” who have “shut down the machinery of our national security apparatus.”
On Thursday, however, it was a Trump-appointed judge — Fernando Rodriguez Jr. in the Southern District of Texas — who invalidated the president’s Alien Enemy Act invocation. Judge Rodriguez was plainly sympathetic to the president’s immigration-enforcement agenda; it’s just that the administration’s methods, outside the congressional laws the president is sworn to execute, were illegal.
Yes, there are some progressive judges, appointed by Presidents Clinton, Obama, and Biden, who take unseemly pleasure in ruling against the Democrats’ archnemesis. In the main, though, President Trump’s immigration enforcement problem — like most of the problems that have arisen in his first hundred-plus days in office — are of his own making.
In formulating immigration law, Congress tried to keep judicial participation in its enforcement to a minimum. It is Trump who has drawn the district courts into this arena, both by operating outside the law and, even when operating within it, doing so in such irregular ways that judicial intervention has been inevitable.
A good example of the latter is Mohsen Mahdawi. He is the Columbia student who participated in the post-October 7 pro-Hamas agitation on campus, along with his associate Mahmoud Khalil. Our David Zimmermann reported on the case this week, and I posted on it when Mahdawi was arrested earlier this month. Like Khalil, Mahdawi has been a green-card holder — a lawful permanent resident alien, the highest level of legal alien status, and usually the final step in an immigrant’s progression to American citizenship. In fact, Mahdawi was arrested by immigration agents when he showed up at a federal building in Vermont for what he’d been led to believe would be his naturalization interview.
The Trump administration’s tactics of arresting aliens and transporting them quickly to the Southern United States (see here and here) are now notorious among apologists for illegal aliens, which include legions of lawyers. The administration is whisking the aliens to federal districts where it believes that the courts will be more sympathetic to Trump’s pro-enforcement policies. Consequently, the aliens’ lawyers race to the nearest Northeastern courthouse each time one of these arrests occurs — or even before an arrest occurs, as in the case of another Columbia student, Yunseo Chung, if the alien and her lawyers sense that an arrest may be imminent. They calculate that in blue states — Vermont, Massachusetts, New York, etc. — where the vast majority of judges are Democratic appointees (and even the GOP appointees have won the support of the states’ Democratic senators), judges will be more hostile to Trump’s policies, more amenable to the progressive view that there are no “illegal aliens” — just “undocumented people” who should be as swaddled in the Bill of Rights as anyone else in these United States of Amerikkka.
In the normal operation of federal immigration law, there would be no occasion for playing the forum-shopping game. The courts have recognized that decisions about which non-Americans get to enter or remain in the United States are quintessentially political: the province of Congress and the executive, not of the nonpolitical judicial branch, which has responsibility for neither national security nor the conduct of foreign relations. Congress has thus structured immigration law to minimize the judicial role.
So why are the judges suddenly deeply involved? Well, in the legal alien cases, the administration is taking a position out of fashion since the early days of the Cold War, some 70 years ago. It maintains that even if an alien has been in this country legally for years, even if he is on the cusp of American citizenship, the government may expel him based on no criminal conduct — based, indeed, on conduct that would be constitutionally protected if engaged in by an American — if the administration unilaterally pronounces that his presence in our country is detrimental to U.S. foreign policy interests.
I’ve contended (see, e.g., here, here, and here) that this is a viable legal position. It has clear statutory support. It is the basis on which Mahmoud Khalil was recently found deportable by an immigration judge (the case is now in the appellate phase). But viable is not the same thing as quotidian and noncontroversial. To the contrary, the notion that the government can take punitive action against mere speech and association, mere political activism absent proof of politically motivated violence and lawlessness, is instinctively objectionable to us.
We can all agree that many ideas and some ideologies are vile. It is not that Americans support them. It’s that the Constitution does not so much endow us with liberty as protect us from tyranny by tethering government. The First Amendment doesn’t say Americans may speak freely; it says “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people peaceably to assemble.” It is a prohibition on government. The point is that the government must never be the dictator of what is true, of what people may think, say, or unite over. That is why the First Amendment’s carapace is not limited to American citizens.
Through Congress, we’ve given the executive branch a very limited, rarely invoked power to expel expositors of potentially dangerous, counter-constitutional ideologies. We’ve done so — even though many Americans passionately believe we should not have — because no right is absolute, and because experience teaches that some ideologies are inextricably linked to political violence that would, given the chance, eradicate all of our rights.
Yet, knowing that doesn’t makes us comfortable with the idea. Deep down we know a confident, civically educated society would reject and marginalize radical ideas by dint of its commitment to its enlightened principles. And an administration committed to the Constitution’s ideals and traditions would not lightly invoke a power to expel legal aliens over their political activism — at least if all the government could prove was political activism, not sedition and lawlessness.
Let’s agree, at least for argument’s sake, that it is prudent to retain a long-standing, constitutionally valid statute empowering the executive to deport aliens based on nothing more than the secretary of state’s ukase. That doesn’t necessarily equate to support for that statute’s suddenly serial invocation after decades of dormancy. Such a pattern gives credence to the objection that the administration’s rash exploitation of an exceptional power could become more threatening to liberty than the radical agitation it targets.
Regardless of how one comes out on that question, it is a legitimate question. It is valid to challenge whether a discretionary power so fraught with peril is being used with due deference to other constitutional principles — not just free speech and association but due process and equal protection. When a person has a colorable basis to claim that his detention, conditions of confinement, and attendant deportation violate the laws of the United States, both the Constitution and statutory law provide the right to petition for habeas corpus — i.e., the right to seek judicial intervention, a court determination that the executive must desist.
Such petitions are filed in federal district court. That’s what got the district judges involved.
To be clear, that doesn’t mean the habeas petitioner gets to win. Again, the executive’s statutory removal authority is clear. Even if judges are instinctively resistant, they have no more authority to rewrite Congress’s laws than the president does. If the executive is acting properly, the secretary of state should be able to provide a compelling reason for what should be exceedingly rare expulsions of legal aliens.
Still, the aliens get their day in court.
The judges did not provoke this battle with the Trump administration. President Trump has invited it, both by invoking a controversial statutory provision and — as I warned — by executing arrests in anticipation of deportation in an overbearing manner that has included forum shopping and cordoning off legal aliens from their lawyers and families. (By comparison, even the worst accused criminal would be entitled to prosecution in the jurisdiction where the crimes were committed and rapid access to counsel — paid for by the public, if necessary.)
In the remainder of the notable, if not notorious, deportation cases, Trump instigated clashes with the district judges by willfully circumventing Congress’s immigration laws. Again, those laws sideline the judges. By altering the field of play, Trump brought them back into the game.
We generally refer to deportation cases as “removal” proceedings. Congress has cut district judges out of the removal process triggered when an arrested illegal alien tries to claim asylum. Instead, the alien gets a succinct hearing before an immigration “judge” — actually, a Justice Department official, not a judge of the judicial branch — who will usually reject the alien’s “fear of persecution” claim. That ruling can be appealed to the Board of Immigration Appeals (BIA), another Justice Department component (i.e., not a real appellate court). Only after that may the alien seek review in a true judicial court; but the review is done by the Circuit Court of Appeals, not a district judge. Furthermore, Congress has narrowly restricted the circuit’s jurisdiction: In essence, it may review only purely legal issues; in the main, the circuit has to accept the fact-finding done by the Justice Department immigration “courts.” Since the immigration laws have been in effect for decades, precious few novel legal issues arise. There is usually little point in appealing, and reversals are rare.
Congress’s laws thus prescribe a process that is expedited. It one-sidedly favors the executive branch because it should. The aliens have entered our country illegally, asylum is a discretionary act not a legal entitlement, and most asylum claims are bogus.
In fact, many illegal aliens never even see a DOJ immigration “judge.” If the alien has never been in the United States and is confronted at the border, an asylum agent will do a triage assessment of any asylum claim; most claims are so patently meritless that the alien can be turned away forthwith. If the alien insists, he may get a peremptory hearing before the DOJ immigration court, but the ruling of that “judge,” which habitually sustains the asylum officer’s conclusion, is final.
The problem is not with our laws. For enforcement hawks, our laws are good — including laws that mandate the detention of illegal aliens while their removal proceedings ensue. Our laws contemplate a regular practice of apprehension, detention, and rapid deportation, interrupted only by the rare meritorious asylum claim.
The real problem we have is twofold.
First, Democratic administrations — especially those in twelve of the last 16 years — have refused to enforce Congress’s laws. They would not detain and deport; they “encountered” aliens rather than arresting them, then released them into our country through illegal parole schemes. Just as bad: Instead of seeing removal law as a process that government resorts to of necessity when a deportable alien is apprehended, Democratic administrations have regarded it as a rationale for inviting millions of aliens to enter illegally so they can seek removal relief. This perversion of enforcement law has led to the present crisis: a tsunami of illegal immigration, all of the strain on social welfare budgets that portends, and a legal system overwhelmed to the point of near paralysis — cases on backlog for years, and aliens who simply don’t show up because they’re confident that the government is not serious about enforcement.
Second, Congress provides laughably scant resources to address this disaster. As I related last weekend, our estimated illegal alien population of 20 million is larger than the populations of most countries. To tackle it, lawmakers have provided the executive branch with about 47,600 detention spaces, 22,000 Border Patrol agents, 13,000 ICE agents and deportation officers, and 350 DOJ immigration judges.
This is why Trump has gone outside the legal system that Congress has established. The instinct to abandon a system that isn’t working is understandable, which is why it resonates with the public. Alas, there are two fatal drawbacks.
First, the president’s constitutional duty is to execute Congress’s laws; he has no power to make his own laws — much less fashion his own immigration system, featuring summary, no-due-process expulsions to foreign prisons that fall woefully short of American standards of humane detention.
Second, when the president goes outside the existing legal system that cuts out the district judges, he perforce brings the district judges into the ensuing controversies. And if the district judges are involved because the president is operating outside of Congress’s immigration laws, then there is a high probability that the president is acting illegally.
And he has been. The removal of Kilmar Abrego Garcia to El Salvador was illegal. The invocation of the Alien Enemy Act was illegal. The deportation of Venezuelans outside the immigration laws and without notice and an opportunity to challenge their removal to a foreign prison was illegal.
The result has been an enormous waste of time, Justice Department resources, and administration credibility — all to address a percentage of the illegal alien population so negligible (about 0.0015 percent) it barely registers. I suppose reasonable minds can differ on whether, in “vibe shifting” terms, the effort has been worthwhile. But there can be no reasonable disagreement about who caused federal judges to intervene and rule in favor of the aliens. That is President Trump, and no one else.