McCarthy: Trump's Job is to Enforce Congress's Immigration Laws, Not Make Up His Own

The great Andrew McCarthy:

Go read the whole thing.

In actuality, as the above snippets from relevant Supreme Court jurisprudence instruct, the involvement of the courts in immigration enforcement is extremely limited — confined to the narrow authority Congress has vested in them. Sure, it is also the judiciary’s 

constitutional duty to uphold due process protections; in the immigration realm, though, that is not much protection because Congress decides what process is due and aliens do not have the full array of due process rights enjoyed by citizens. 

As the Supreme Court has recognized in Johnson v. Eisentrager (1950), the rights of aliens become more robust as they lawfully weave into the fabric of our society. The foreigner who has never entered the United States has no constitutional rights; the illegal alien at the border has nearly none; the illegal alien who has entered has marginally more; the alien on a temporary visa has still more but less than an immigrant with a green card. 

Let’s set aside for a moment the difficult cases of legal aliens the Trump administration seeks to expel because of pro-Hamas agitation. What the president, the vice president, and their staffers are mainly squawking about are deportable aliens, near the lowest end of the sliding scale of due process rights. 

Congress does not require a “trial” before such aliens may be deported — much less a trial that would “take two years.” Neither Trump nor Miller is a lawyer, so I presume when they inveigh against “trials” in this context they are actually talking about removal proceedings. Pace the White House, those proceedings are much more expeditious than trials tend to be. Judicial courts, moreover, have nearly nothing to do with them.

At the border, illegal aliens may be turned around on expedited procedures that don’t even involve immigration courts — which, we should bear in mind, are not judicial courts at all, they are Justice Department tribunals that may be overruled by the attorney general.

Illegal aliens detained inside the country, if they don’t agree to rapid expulsion (as many do), are entitled to a hearing before an immigration judge and an appeal to the Board of Immigration Appeals — again, Justice Department tribunals. After that, removable aliens get a one-shot at actual judicial review, specifically, a circuit court of appeals — that is, Congress has cut the federal district courts (the trial judges) out of the process. And the circuit court’s review is narrow; in the main, it must accept the factfinding of the Justice Department’s tribunals and is limited to deciding pure questions of fact. Few of those, at this point in history, are novel or complex.

In truth, the removal process is streamlined. It is materially less expensive, extensive, and complicated than federal trials tend to be. It is not the federal judiciary that grinds the gears of immigration enforcement to a halt.

So, what does?

Well, for starters, the Democratic Party — whose 2024 presidential candidate got nearly as many votes (75 million) as Trump (77.3 million) — does not believe the United States should have borders and does what it can to abet illegal immigration. With half the country supporting that party, the president’s claim that he has a “mandate” to boot 20 million illegal aliens out of the country is misguided, even if you believe — as I do — that border enforcement was Trump’s strongest issue. By winning very narrowly (with 49.8 percent of the vote), Trump’s only “mandate” is to be president for four years. That means pursuing his policy preferences within the strictures of the Constitution, under which Congress, not the president, makes the immigration and deportation laws. Even presidents who win landslide elections, which the incumbent did not, must follow the Constitution and faithfully enforce the laws.

Beyond that, the system is overwhelmed because the government has not enforced the immigration laws — a problem that goes back decades but became a crisis because of President Biden’s uniquely reckless dereliction of duty. There are now about 20 million illegal aliens in the country, and Congress provides woefully inadequate resources to address the removal backlog. That’s disgraceful but not shocking given that the Democratic half of Congress is against immigration enforcement. It makes for a terrible situation. But a terrible situation does not empower the president to ignore the law.

If the judiciary is not the problem, and if Congress has mostly cut the district judges out of the immigration enforcement equation, why do the lower federal courts seem so ubiquitous when it comes to Trump’s deportation efforts? Because the president is violating Congress’s laws.

The deportation of Abrego Garcia was illegal. The deportation of hundreds of Venezuelans to a foreign country’s notorious prison with no due process was illegal. And when not outright violating Congress’s laws, the president is pressing laws to the breaking point — and, I believe, beyond. The invocation of the AEA in peacetime is historically unprecedented, legally untenable (in my view), and has never, in any event, been a basis for deportation with no due process. (That’s why one D.C. Circuit judge snarked that, during World War II, suspected “Nazis got better treatment” under President Franklin D. Roosevelt’s AEA proclamation than Trump, in peacetime, has given Venezuelans suspected of Tren de Aragua membership.) The deportation of legal aliens, in large part for conduct that would be First Amendment–protected if committed by an American citizen, is on the razor’s edge of legality — even if one believes, as I do, that Congress has given the executive branch that authority.

When presidents take actions that are either blatantly illegal or highly irregular, those actions are necessarily outside the parameters of ordinary enforcement. That is when federal courts get involved. The Constitution and Congress’s laws that bolster the Constitution’s substantive and due process protections provide extraordinary remedies when there is a basis to believe the executive branch is abusing its powers. Habeas corpus is available if a person’s detention or conditions of confinement violate the law — and the Supreme Court has now held that this includes when a person is deported while being detained. The Administrative Procedure Act may be invoked by plaintiffs who can show that actions by government agencies that carry out presidential policy are unconstitutional, illegal, or arbitrary and capricious. When a president follows immigration law, habeas and the APA will rarely if ever come into play.

There are other potential grounds for lawsuits. My purpose here is not to publish a catalogue. It is to illustrate that the courts are involved because of executive lawlessness and edginess, not because due process is too hard. And to the extent due process has become difficult to administer, it is because the political branches have neglected their duties to defend our borders, enforce our laws, and provide sufficient enforcement resources. That’s not the judges’ fault — not even the “communist” judges.

If you are a regular reader, you know Saturday mornings around here ain’t Pangloss. There are significant flaws in our immigration law. They need to be addressed — and I’d respectfully suggest that the president’s time would be better spent on that than on a specious AEA gambit that, even if it worked, would apply to maybe a thousand people (that’s a high estimate).

When illegal aliens are detained, it is too easy for them to seek asylum, withholding of removal (the remedy dubiously granted to Abrego Garcia), and protection under the 1984 Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This dysfunction reached its nadir under Biden, whose administration took the position that, because the United States has legal processes that are triggered when these remedies are sought, every non-American on the planet has a right to enter our country illegally to seek them.

Asylum and similar benefits are not rights. Remember, we started with the Supreme Court’s acknowledgment of “the power of Congress to exclude aliens altogether from the United States.” Since our nation needn’t admit aliens at all, asylum and similar benefits are discretionary acts of clemency. It is only sensible that a nation with more than 20 million aliens living in it illegally — a figure greater than the populations of about two-thirds of countries in the world — should shut its gates to all but perhaps a handful of the most aggrieved foreigners until the illegal-alien population is reduced to a manageable amount. That would promote legal immigration and hopefully induce people who want more generous asylum to support stable border enforcement.

This is one of those posts that reveals to you just how precious little you actually know about the issue in question.