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.