By Daniel Horowitz
Over the past few years, a bunch of lower federal courts have essentially nullified American immigration law and our national sovereignty, substituting the sanctuary and amnesty agenda for the law and the Constitution. Nobody in politics has cared. The effects on our schools, communities, criminal justice system, drug overdoses, gang activity, and voter integrity are devastating. We are strangers in our own land. And now it is the ruling of one radical district judge that is not only harming Americans but causing the separation of illegal alien families (who willingly separate themselves anyway). Now that it’s kosher to finally care about the immigration issue, when it affects the “chosen ones,” will the political class finally point a finger at the courts?
Lost in the rancor of the debate over border policies is the fact that there is no inherent problem with our laws and policies; rather, there is a problem with the lower courts. Not even with the Supreme Court, but with random lower court judges who now have dominion over our border, national security, and national sovereignty.
DHS Secretary Kirstjen Nielsen declared Monday, “Until these loopholes are closed by Congress, it is not possible, as a matter of law, to detain and remove whole family units who arrive illegally in the United States.” But this is not really true. The law is not a suicide pact and doesn’t require this. It is the work of one district judge, Dolly Gee, upheld by the Ninth Circuit. Let’s be honest that we have a lower court problem, not a statutory problem. So why is the administration not making Louie Gohmert’s jurisdiction-stripping bill the number one priority?
Here are the facts:
There are illegals who come as family units with children to seek asylum and there are teenagers who come alone. The asylum-seekers are mostly bogus and do not qualify with a credible fear of persecution under our laws. As for the unaccompanied teens – they are not unaccompanied and a vast majority are placed with parents or other relatives who are already in this country illegally. Incidentally, these parents had no problem self-separating for years to come here illegally, but let’s not let the facts get in the way of a good sob story. Either way, the kids should be returned home, and the families seeking asylum should be detained together and returned home when their asylum claims are rejected.
Given that none of these people fit the definition of asylum or a UAC subjected to a “severe form of trafficking,” the law requires that “in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a [removal] proceeding” (8 U.S.C. § 1225(b)(2)(A)). Moreover, statute gives full discretionary authority to immigration officials to detain all those presumed to be here illegally “pending a decision on whether the alien is to be removed” (8 U.S.C. §1226(a)) and downright mandates the detention of classes of criminal aliens (§1226(c).
That is the law. Period.
When they say that children cannot be detained together with their parents (without releasing both), that is not in the law and not even in the Supreme Court decision with the Flores consent decree. That settlement, which can be wound down through regulation, applied to legitimately unaccompanied children. These children we are speaking of are not unaccompanied, and therefore the original consent decree doesn’t apply to them. It was one radical district judge in 2015 who lawlessly applied the ban on detention to family units. Dolly Gee is the same judge who said there is an Equal Protection and Establishment Clause right for Somalis and Yemenis to immigrate. She literally ordered Customs and Border Protection officials to escort an Iranian national back from Dubai to the United States after he was already excluded and while he was outside American soil and should never have had a justiciable claim to enter.
Thus, we have a liberal judge problem, not a statutory problem. If we try to “fix” every statute the judges break, we will never keep up. They are creating rights for illegals at breakneck speed on a daily basis and are shutting down enforcement using the Constitution, not just erroneous statutory interpretation.
This same federal judge issued a ruling allowing nine hundred illegal aliens who were already deported to force immigration officials to reopen their cases because they may not have been mentally competent during their deportation proceedings. In 2013, Judge Gee found a new fundamental right for those illegal aliens with mental disabilities to avail themselves of taxpayer-provided attorneys and is now forcing the taxpayers to pay for the transportation of these individuals back into our country.
Is that the “law”?
Is the right to access an abortion or sex change operation as an illegal alien the law, as judges are now ruling?
Is there a right to not be deported if you become “an immigration activist,” as judges are now ruling?
They have already vitiated our national sovereignty. Just this week, a Kansas judge said that a state cannot protect voting integrity by asking for proof of citizenship.
We are strangers in our own land.
The amount of pain that the American citizen has endured at the hands of this one random district judge is unconscionable. Between the gangs and the drugs and the costs to our schools and communities, the consequences of incentivizing cross-border migration with minors are dire: 36 percent of MS-13 members arrested in a crackdown came here as unaccompanied minors, according to the DHS.
According to the Federation for Immigration Reform, in places like Arlington, Virginia, unaccompanied minors cost the locality $33,000 per enrollee. State and local governments incur a $44.4 billion annual unfunded liability from young illegal aliens every year. This doesn’t include the $12 billion annual burden on state health care programs and $11 billion annual cost on the criminal justice system.
Furthermore, by releasing so many problematic people, we are harming the legitimate asylees by placing them in communities infested with gangs brought in through the very same process and released through Judge Gee’s mandated catch-and-release.
Here is the bottom line: If we are going to accept our fate at the hands of all these judges, we are no longer a sovereign nation.
What should the president do? Think outside the box:
- He should declare a national emergency. Even if the Left doesn’t care about Americans, they have now admitted this is an emergency for illegal alien families and that it must stop. He should invoke Section 212(f) of the INA, which gives him authority to “by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” He should suspend all asylum requests at the border and announce that they must be made at the Mexico City embassy.
- At the same time, the president should leverage all tools of statecraft to get Mexico to cooperate with us in processing these people in Mexico. This should involve threats over foreign aid and NAFTA negotiations.
- The president should immediately unite the families and detain them for deportation. He should apply this policy at least in Texas, which is under the umbrella of the Fifth Circuit, not the Ninth. According to the CBP, 72 percent of the family units apprehended this fiscal year were in Texas. Why should we allow Judge Gee’s ruling to stand in Texas? Let them sue us in a Texas court and see what happens. The ACLU is already filing a lawsuit in California. Why allow them to control the direction of the litigation?
- Trump should focus his congressional demands on vitiating the expansion of the Flores agreement by Judge Gee. Sen. Grassley has promised to move such legislation in the Senate Judiciary Committee. Trump is off to a good start in promising to veto budget bills that don’t contain his border priorities. He should double down every day.
If we are prepared to admit as a people that there is nothing we will do to repel what is essentially an invasion of our country, then we no longer merit the self-governance we will celebrate this upcoming July 4. As the president said yesterday, “Ultimately, we have to have a real border, not judges.”