The Real Problem With Immigration Policy? Judges

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Image: Kelly McCarthy – Rare section of border with a “fence.” In this case, repurposed Vietnam-era temporary landing strips. Note the big gap illegal entrants climb over.

If you were to guess the most critical problem faced by President Trump in dealing with the flood of illegal immigration at our southern border, what would it be? Foreign government-sponsored migration caravans? Funding for the border wall? A shortage of border patrol agents? Indeed, these all are aspects of the serious problems Trump is encountering in addressing the ongoing crisis at out southern border; but they fail to get to the heart of the problem the president faces in taking steps to solve the crisis.

In a word, judges are the main obstacle standing between the president and his ability to seriously address the border crisis. Federal judges.

Interestingly, our founding fathers warned of this very problem more than two centuries ago. “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government,” Thomas Jefferson wrote in 1823. “Experience however soon shewed in what way they were to become the most dangerous.”

Jefferson’s comments reflect what many of our founders feared; that while the the powers of the republic were vested in three co-ordinate (not “co-equal”) branches, each acting as a check on the others, the furtive creep of judicial power over the years would lead to an imbalance in power, inviting a tyranny of the judiciary. This is exactly where we find ourselves today, 230 years after the Constitution was ratified.

Article III of the Constitution outlines specific and limited responsibilities for the federal judiciary; but it was not until the 1803 Supreme Court case Marbury v. Madison, that the concept of judicial review of the nation’s laws took hold. Judicial review is an entirely appropriate and essential function of the Courts, but it was not intended — and in fact was feared — that such powers might eventually grow so that every decision or move by the president or Congress be reviewed and possibly vetoed by unelected judges.

This is exactly what is happening in the quagmire that has become illegal immigration flooding our southern border, wherein every policy decision by Trump to stem or slow the tide is subject to the whims of some liberal judge on a federal bench, armed and ready with national injunctions to thwart his every move. While the administration is able to appeal these decisions, such remedy consumes many weeks if not months; during which time appropriated funds lie fallow and federal workers are stymied in their ability to implement policy directives from the White House. Just this week, a judge from the 9th Circuit in California issued a preliminary injunction blocking the administration’s “Remain in Mexico” policy for asylum seekers.

Truly, we have reached the point at which unelected judges are making public policy; often in direct and pointed opposition to the platform and policies on which the president was elected.

A lesson drawn from America’s seventh president — Andrew Jackson — might now be timely. It was in 1832 that Jackson, furious at a ruling by the Supreme Court, declared that “[Chief Justice] John Marshall has made his decision; now let him enforce it!”

Nearly two centuries after Jackson threw down the gauntlet to the high court, the federal judiciary has grown in power far beyond anything the earlier president could have imagined. In no public policy sphere is this imbalance more apparent than immigration.

Federal judges now are routinely interjecting themselves into virtually every aspect of immigration policy, including those having nothing to do with genuine questions of constitutionality which John Marshall properly identified as legitimate aspects of judicial review.

Fueled not only by the judiciary branch’s long-standing lust for power, but now by the left’s hatred for Donald Trump, judicial public policy activism has morphed into a multi-headed hydra that threatens to engulf both the legislative and executive branches of our government; making it next to impossible for either of these branches of government to chart meaningful long-term public policies.

While the lion’s share of attention devoted to this growing problem is focused on the nine justices of the Supreme Court, and to a lesser but still measurable degree on the 179 federal appellate judges, it is life-tenured district court judges who are increasingly — often brazenly — challenging the president’s policy moves.  Recognizing the potency of enlisting the awesome power of judicial orders to deny Trump the ability to govern in this arena, the left readily is enlisting liberal state attorneys general as foot soldiers to file multiple injunctions with sympathetic federal trial court judges, designed solely to stop the administration from fully or even partially implementing measures to stem the tide of illegal immigration at the southern border.

It very well may be time for President Trump to take a cue from his predecessor in that office; the one whose portrait currently adorns the wall of the Oval Office — Andrew Jackson.

Bob Barr (@BobBarr) represented Georgia in the U.S. House of Representatives from 1995 to 2003. He currently serves as president and CEO of the Law Enforcement Education Foundation. Reproduced with permission.