By Daniel Horowitz
No court can ever force the president to allow any alien to enter the country. No such lawsuit could ever have legitimate standing, and no such decision could have any constitutional moorings. If we don’t understand that, we are no longer a sovereign Republic.
Monday night, Jon Tigar, an Obama-appointed judge of the United States District Court for the Northern District of California, a forum chosen by the ACLU, penned what is essentially an op-ed expressing his desire that Trump’s order on asylum be temporarily enjoined. His desire is just as binding as my desire to place an injunction on all liberals from running for office. He has no jurisdiction over immigration, has no jurisdiction over national security, has no jurisdiction over the border, violated endless settled law, violated Article II powers, violated.
Article I delegated authority, and broke every sane ruling on Article III standing that differentiates a court from a legislature.
This is not a legitimate court ruling or even court case.
President Trump issued a commonsense and quite modest order to direct all asylum claims to the points of entry rather than empowering the cartels to smuggle them in between the points of entry. Given that none of these people are legitimate asylees, he should have suspended all asylum claims at the border and required them to instead make claims in U.S. consulates in Mexico, the first safe third-party country, as designated by the U.N. Nonetheless, even this order was out of bounds, according to Tigar, who believes that asylum statute requires the president to afford everyone in the world, evidently even a belligerent mass migration, a chance to file an application.
Moreover, in what has become a favorite stalking horse of the judicial fascists, Tigar claimed that Trump didn’t properly promulgate this “regulation” under the rules of the Administrative Procedure Act. Yup, evidently, sensitive foreign affairs negotiations with Mexico and Central America and repelling an invasion are now classed with promulgating a new regulation on American farms. Will we subject a North Korean missile attack to the APA?
Let’s put aside the fact that asylum law was written clearly for individuals, not groups of tens and hundreds of thousands of people invading our country. It was written for people like Asia Bibi, the Christian who is being threatened with execution in Pakistan because of her faith. These people in the caravan are prima facie not eligible for asylum, and much like an invading army doesn’t need to be given papers and catch-and-release, these people don’t need to be let in.
Let’s also put aside the fact that asylum statute explicitly bars judicial review and private causes of action to sue for asylum status.
Let’s also put aside the fact that the ACLU cannot qualify as a legitimate party with standing to meet the standards of Article III cases and controversies. I kid you not, the ACLU actually said it has a personalized, cognizable harm because Trump’s policy causes the group “to divert significant resources to, among other things, understanding the new policy,” and “educating and advising its staff, clients, and prospective clients” on the order. I guess I can sue Pelosi’s House for any legislation I don’t like because it forces me to spread my resources thin in educating the public through my various platforms about the consequences.
Indeed, we have already established that this ruling is null and void from day one. But there is something more fundamental here.
The president has both delegated authority and inherent Article II powers over foreign commerce to prevent people from landing on our shores to begin with, and that is something that even Congress cannot take away. Thus, even if asylum statute in a vacuum forced the president to entertain any bogus claim, the president has inherent authority to exclude applicants from entering, and that power was reaffirmed by Congress in 212(f) and 215(a) of the INA, which serves as a circuit breaker to all immigration categories, including asylum or any form of legal immigration. And for good reason.
As the Supreme Court said in Lichter v. United States (1948):
It is not necessary that Congress supply administrative officials with a specific formula for their guidance in a field where flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program. . . . Standards prescribed by Congress are to be read in the light of the conditions to which they are to be applied. “They derive much meaningful content from the purpose of the Act, its factual background and the statutory context in which they appear.”
There are no greater infinitely variable conditions than dealing with the emergency of the drug cartels and mass migration mixing together at our border. In fact, there are fewer groups in the world more brutal than the drug cartels. That alone would meet the definition of the president’s solemn requirement to repel an invasion under Art. IV Sec.4. There is no way anyone can read asylum law as negating the explicit and unambiguous powers to exclude aliens.
An enduring precedent that judges cannot second-guess exclusions
Let’s begin with the basics of the power to exclude. None other than Judge Horace Gray, in Nishimura Ekiu (1892), the very judge the liberals like to (erroneously) cite for birthright citizenship of aliens, wrote the following: It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self- preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.
This became the backbone of an uninterrupted stream of case law about which the court said, decades later in Galvin v. Press, that it “has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government,” not “merely” by “a page of history ... but a whole volume.”
Indeed, this is why Justice Gray said that courts have no ability to second-guess an exclusion and that any debate over that must take place between the political branches of government:
It is not within the province of the judiciary to order that foreigners who have never been naturalized, nor acquired any domicile or residence within the United States, nor even been admitted into the country pursuant to law, shall be permitted to enter, in opposition to the constitutional and lawful measures of the legislative and executive branches of the national government.
The president has his own inherent foreign affairs authority to repel cross-border migration
Notice how Gray referred to both the legislature and executive. That is because they have concurrent jurisdiction over entry into the country. Congress has full power over naturalization and rules governing entry as well as deportations, but the president has power over foreign affairs until something or someone lands on our shores. Thus, the ability to enter is subject to the lowest common denominator between both branches. If either one doesn’t want a person or a group of people to enter, he or they may not enter. For example, even if Congress were to explicitly say that “all aliens seeking admission shall be granted status,” the president can still exclude anyone he wants. Once an alien is lawfully admitted, then Congress controls the rules of naturalization or deportation, although Justice Thomas believes the president might also have inherent power to deport as well. See Sessions v. Dimaya (2018, THOMAS, J., dissenting, slip op., 13–14).
How strong is this power? As the Supreme Court said in Knauff v. Shaughnessy (1950), which is still the controlling case to this day, “The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”
In one of the few court cases against the 44 times presidents have invoked the power to exclude under 212(f), none other than the Northern District of California, the very court on which Judge Tigar sits, cited precedent in the most unequivocal terms:
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. * * * When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power” [(Encuentro del Canto Popular v. Christopher, N.D. Cal. 1996)].
Indeed, before Congress began officially regulating immigration in 1875 and it was still mainly left to the states, the State Department often encouraged or discouraged immigration through diplomatic correspondence. President Grant’s secretary of state, Hamilton Fish, angrily warned the British in 1872 that the administration “is not willing and will not consent to receive the pauper class of any community who may be sent or may be assisted in their immigration at the expense of government or of municipal authorities.”
Thus, even without 212(f), one could not read any asylum statute in a way that negates the president’s power to shut down all asylum cases when he deems it in the national interest. But certainly, with 212(f), there is nothing to discuss. As Justice Thomas wrote in his recent concurrence in Trump v. Hawaii, which is being ignored by the lower courts every day, “Section 1182(f) does not set forth any judicially enforceable limits that constrain the President. ... Nor could it, since the President has inherent authority to exclude aliens from the country.”
The courts already said executive power to exclude overrides asylum, unless the executive’s name is Trump
In the early 1990s, Presidents George H.W. Bush and Bill Clinton signed an executive order directing the Coast Guard to interdict Haitians attempting to come here to claim asylum by preventing them from landing while they were still at sea. In Sale v. Haitian Centers Council, Inc. (1993), the court ruled that the order did not violate either the INA or the United Nations Convention Relating to the Status of Refugees. “It is perfectly clear that 8 U. S. C. § 1182(f) grants the President ample power to establish a naval blockade that would simply deny illegal Haitian migrants the ability to disembark on our shores,” wrote Justice Stevens for the overwhelming majority.
It is thus perfectly clear that the president can categorically prevent asylees, even legitimate ones, from ever entering the country and certainly may propose a more modest approach of simply channeling them to the points of entry.
As the Congressional Research Service explains, based on Sale’s definition of the president’s power to block entry, “The Court distinguished between (1) aliens who are “on our shores seeking admission” or “on the threshold of initial entry,” and (2) aliens who are within the United States after entry, regardless of the legality of that entry.” Indeed, this case was cited in Trump v. Hawaii, and as the CRS notes, no court has ever placed limitations on the president’s authority.
On January 14, 1998, President Clinton issued a terse one-page order invoking 212(f) and 215(a) to shut down all immigration from Sierra Leonne until the military coup agreed to reinstall the democratically elected government. Clinton viewed the security of an obscure government as sufficiently in America’s “national interest” to shut down immigration. How much more so when our own country is directly affected by the tens of thousands coming with violence, drugs, gangs, and poverty? Nobody in their right mind ever thought to challenge this order in court. Yet in a case later on, the Second Circuit (Sesay v. Immigration and Naturalization Service INS, 2003) tossed out a claim of asylum from a Sierra Leonne national, noting that he could not have lawfully entered the country at the time, given the president’s order. Thus, irrespective of the merits of his claim, he could not be eligible solely because the president shut off the spigot. And this was a man who already made it to the country.
The real Constitution is not a suicide pact
Justice Robert Jackson, the great champion of due process and dissenter in the Japanese internment case, said in a 1953 case (Shaughnessy v. Mezei), “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will.” This is the same justice who famously said (Terminiello v. City of Chicago, 1949), “There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Jackson, in that case, was referring to dogmatically clinging to a legitimate First Amendment claim against an ordinance arresting an American citizen in Chicago for a charge of disorderly conduct that incited violence. How much more so would we apply this to our national sovereignty and the notion that seven billion people can invade our country, demand status, demand release from custody interminably, and then help bring in drugs, gangs, and violence while swamping our culture and our public institutions?
The Constitution and the most unassailable case law, rooted in the social compact of sovereignty, support the power of the president to regulate immigration to this nation. Are we going to allow the dogmatic adherence to lower court supremacy, built upon a violation of law and the Constitution, to make the judiciary a suicide pact?