Written by Daniel Horowitz
Anticipating a day when we would have a president who actually protects national sovereignty, I wrote a book last year warning that if Congress fails to strip the courts of jurisdiction over immigration, radical judges will give affirmative immigration rights to foreign nationals.
The thesis of my book — what was once an esoteric area of law — is now playing out in spectacular fashion. Congress and Trump’s Justice Department must fight back against the courts once and for all, or we will no longer remain an independent, sovereign, and safe country.
As I noted last week, it is the most settled area of law that a president acting through the authority of the people’s Congress has the ability to exclude or deport any non-citizen for any reason in accordance with statute. Yet over the weekend, a federal district judge issued an injunction against the executive order and reinstated as many as 60,000 visas for foreign nationals that were covered under the order. This act, along with those of several other judges (in my view, an impeachable offense), is astounding, unprecedented, and create a national emergency for the following six reasons:
1. Allows ANY and ALL refugees to enter the U.S.
Judge James Robart of the Western District of Washington, issued a temporary injunction nationwide on almost the entire executive order. This means that any refugee from any country or visa holder from the seven countries must be let into the U.S., even if they are standing outside our border. Words cannot describe how radical this opinion is. It’s on par with redefining marriage, and in some ways, even worse.
2. Stops President Trump from executing the law, which Congress passed
Specifically, the judge singled out the provision of the order (5e), prioritizing religious minorities for refugee acceptance. This is unreal. Pursuant to the letter and spirit of existing statute, the entire purpose of the refugee program is to protect religious and ethnic minorities, not individuals caught in Islamic civil wars. If anything, President Obama violated the spirit of the law by not prioritizing Christians. Yet this judge is mandating that Trump not follow the law!
3. Circumvents Congress’ authority. Invents new constitutional right for non-citizens
By issuing this ruling, Judge Robart and several others are not only overturning Trump’s executive order, but they are also saying that even if Congress were to pass a similar law it would be unconstitutional. Trump’s order is merely applying delegated authority from Congress
We have no sovereignty as a nation!
4. Encourages ‘judge shopping’ to assert tyrannical authority over congressional and executive branches
That a puny district judge, an institution created by Congress, can overturn national sovereignty and laws passed by Congress defending that sovereignty, represents the final frontier in judicial tyranny I warned about in “Stolen Sovereignty.”
This means that if the courts are not stripped of their ill-gotten jurisdiction over immigration, the ACLU and the far Left will be able to shop around for any number of extremely liberal judges to place a national injunction on any enforcement act, even related to illegal immigrants.
5. Ignores American history, law, and tradition
The fact that such a radical opinion was delivered by a Republican-appointed judge further proves my longstanding point that we will never be able to win back the courts simply by having a Republican president make judicial appointments.
The lower courts are irremediably broken, and there aren’t enough conservatives in the legal field who wind up getting these positions. A number of traditions dealing with home state senators selecting lower court judges makes it almost impossible for Republican presidents to have anywhere near a perfect record appointing judges.
In my book and in my manifesto on why the courts are irremediably broken, I note that while Republican judges adhere to bad precedent of the Left, liberal judges are willing to throw out 200 years of settled law. Judge Robart literally shredded our laws, history, and tradition on immigration since our colonial times and replaced it with his personal beliefs on turning America into Eurabia. He refused to even recognize passed settled law and gave no reason for ignoring it.
6. Furthers what modern courts have done at chipping away American sovereignty
Not only did the radical district judge undermine our sovereignty, but the Ninth Circuit also refused to issue an emergency stay on this revolutionary restraining order. Even though Judge Robart’s order was the most radical decision so far, most other courts have also chipped away at the right of a nation to exclude.
This is very dangerous and demonstrates why Congress must take away this power from the courts (a power courts themselves said for 200 years they never had). If they don’t, all the Left needs to do is take any immigration enforcement action to the Ninth Circuit and secure a nationwide injunction.
For all of the above reasons, Congress must use its Article III Sec. II power and immediately move to strip lower courts of jurisdiction to grant rights to any foreign national to enter or remain in the country against the law unless statute explicitly preempts the president’s action.
This way, plaintiffs would have to appeal directly to the Supreme Court, which only has the bandwidth to deal with a limited number of cases. Nobody can dispute Congress’ supremacy over the lower courts because Congress created them.
Alternatively, Congress, which has complete control over the administrative procedures of the courts, could prevent lower courts from issuing nationwide injunctions against immigration enforcement acts outside of their respective districts and circuits.
Finally, the House should bring articles of impeachment against Judge Robart (and others) and finally make an example of these rogue judges.
Reasonable people can disagree about certain constitutional questions, but this judge openly violated the Constitution and made no effort to respect the law. He threw out the sovereignty of a nation without addressing a single statute, constitutional clause, and 200 years of the most settled case law, permitting Congress and the president to exclude entire classes of immigrants in a much more sweeping policy than what Trump enacted.
(In a future article, I plan to address how impeachment was not conceived as merely a tool to be used only against judges who murder people or commit violent crimes, but it was also designed as a congressional check on abuse of power.)
In addition, conservatives must pressure Republican senators and President Trump to make sure Judge Gorsuch fully supports the plenary power of Congress to exclude immigrants for any reason before they sign off on him as the next Supreme Court justice.
We are not debating immigration policy here; we are debating whether we are a nation at all.