William Barr's Latest Immigration Decision Forces the Courts and Congress To Choose a Side

U.S. Border Patrol agents conduct intake of illegal border crossers at the Central Processing Center in McAllen, Texas, Sunday, June 17, 2018. by US Customs and Border Protection, public domain as US Government works.

U.S. Border Patrol agents conduct intake of illegal border crossers at the Central Processing Center in McAllen, Texas, Sunday, June 17, 2018. by US Customs and Border Protection, public domain as US Government works.


Yesterday, Attorney General William Barr upped the ante in the combined crises of our southern border being overwhelmed by mass migration, a guerrilla war by the courts in the Ninth Circuit against any kind of enforcement of immigration laws, and the unwillingness/inability of Congress to act to resolve either of those problems.

A year ago, then-Attorney General Jeff Sessions took control of the entire immigration legal system by exercising his right to be the final arbiter on all immigration cases. Other than leaving trousers befouled in the media, and among Democrats and Vichy Republicans, what this decision did was give the Attorney General a direct say in the interpretation of immigration law. This is not a revolutionary as it has been made sound, immigration judges are Article II judges, that is, employees of the executive branch. They are answerable to the Attorney General. But in the past Republican administrations have treated these bureaucrats as though they were actual Article III judges and let them run amok through the immigration process.

Some of the changes Sessions imposed were, as expected, blocked by liberal judges but these will inevitably end up before a Supreme Court that is very, very likely to say that unless you can prove the Attorney General is obviously wrong, he gets the benefit of the doubt.

Now Barr has thrown a major wrench into the system.

The order issued by Attorney General William P. Barr was an effort to deliver on President Trump’s promise to end the “catch and release” of migrants crossing the border in hopes of escaping persecution in their home countries.

The order — which directs immigration judges to deny some migrants a chance to post bail — will not go into effect for 90 days. It is all but certain to be challenged in federal court, but immigrant rights lawyers said it could undermine the basic rights of people seeking safety in the United States.

“They want to send a message that you will get detained,” said Judy Rabinovitz, a deputy director of the Immigrants Rights’ Project at the American Civil Liberties Union. “We are talking about people who are fleeing for their lives, seeking safety. And our response is just lock them up.”

Mr. Barr’s order is the latest effort by the Trump administration to reduce the number of immigrants who are able to seek protection from violence, poverty and gangs by asking for legal status in the United States. It has slowed the processing of asylum requests at ports of entry, and it has ordered that some asylum seekers be required to wait in Mexico.


[Read the whole decision.]

Important points: this decision only covers illegals who are apprehended inside the United States and then make a claim of asylum; the decision does not cover families as they, under the Flores settlement, can’t be detained longer than 20 days. The decision seems to be a direct challenge to a decision by the Ninth Circuit that illegals were entitled to a habeas corpus hearing before being deported.

All of this is taking place in a a ecosystem that is stressed to the breaking point by sanctuary cities, hostile Democrat judges, restrictive court rulings, nationwide injunctions issued by single Democrat judges, and inadequate resources. So why, one could ask, is the administration creating another pain point by mandating the detention of people who where being released on parole.

I’d guess two things.

There is an election in 2020 and the administration is raising the visibility of issues, such as sanctuary cities, to use them as a campaign issue. At this stage, every administration policy that gets an injunction from the Ninth Circuit should be forced by the FEC to label itself as an in-kind donation to Trump-Pence 2020.

Despite numerous setbacks, the Trump administration had remained focused on border security and it has kept border security in the spotlight. Many of these short term defeats, like the “kids in cages” stuff, are ephemeral because the lead to some logical questions being asked by a large number of Americans. Wait, you mean if you cross into the US illegally but have a kid with you, you get a get-out-of-jail-free card? Hold on, all you have to do is say you felt threatened at home and you’re free to go until your hearing?


A lot of this is not and can never be made defensible. To understand how this plays electorally, let’s go to the

“Well, let me say, you’re referencing a comment because— And when we won this election, it wasn’t in districts like mine or Alexandria’s, however wonderful—she’s a wonderful member of Congress, I think all of our colleagues will attest. But those are districts that are solidly Democratic. This glass of water would win with a ‘D’ next to its name in those districts.

“And not to diminish the exuberance and the personality and the rest of Alexandria and the other members, but when I said three, they were talking about three that were getting a good deal of press on it. But the 43 districts – we won 43, net gain of 40 – were right down the middle, mainstream, hold the center victories.

How is this going to play in those 43 districts the Democrats managed to flip? How are those people going to defend doing nothing while the the administration can make the case that it is trying to secure the border but the Democrats are not serious?

The second issue is deeper. I’ve never credited the people who claims Trump plays multidimensional chess. He doesn’t. He plays checkers like my brother does. When he starts losing he knocks the board over and you can’t reset the pieces so you either start over or you play a different game. But he does have some very shrewd people working with him. I think we’re seeing the natural inclination of Trump to get mad and knock the board over combined with folks who are well acquainted with the Cloward-Piven Strategy–named after leftist social activists Richard Cloward and Frances Fox Piven, who advocated that the quickest way of getting universal income guarantee (and universal everything) was by overloading the current system until if failed and change was demanded–and they are doing it at the border.


What better way of changing the game than by actually enforcing the laws, placing the system under maximum stress, and communicating the impossibility of contending with the border crisis and with a hostile judiciary? How do you change visibly failing to staunch the flow of illegals from a negative to a positive? You create a nemesis in the form of the judges of the Ninth Circuit and the mayors of sanctuary cities who seem to have a greater affection for illegals than for citizens? What better way to do this than by interpreting the law as rigidly as possible and by getting rid of anyone in your organization who has any loyalty to the old way of doing things? And what better cover for a strategy of deliberately breaking the untenable status quo than President Trump’s angry tweets about illegal immigration and Democrat judges?

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