On Monday, a Clinton-appointed judge in the Ninth Circuit continued the campaign of lawfare against efforts by the Trump administration to enforce immigration laws.
In order to fight the scam whereby illegals make a claim of asylum and are then granted parole until their hearing, for which the majority never show up, the Administration had instituted a policy that required illegals making asylum claims to remain in custody until they received a hearing.
In a written decision that overturns a 2005 policy, Barr directed immigration judges not to release migrants on bail once their cases have been approved for expedited removal proceedings — a status granted only after an applicant successfully establishes “a credible fear of persecution or torture” in the home country.
“I conclude that such aliens remain ineligible for bond, whether they are arriving at the border or are apprehended in the United States” Barr, who has the authority to overturn prior rulings made by immigration courts, wrote.
Instead, asylum-seekers “must be detained until [their] removal proceedings conclude.” Only those people granted parole by the Department of Homeland Security will be eligible for release, according to Barr’s order.
Despite the fact that federal law gives plenary authority over immigration cases, right down to the ability to appoint and assign immigration judges and to review their findings, to the Attorney General, the God-Judge stepped in and decided that there was a constitutional right to bail for people who entered the country illegally.
“The court finds that plaintiffs have established a constitutionally-protected interest in their liberty, a right to due process, which includes a hearing before a neutral decision maker to assess the necessity of their detention and a likelihood of success on the merits of that issue,” Pechman wrote.
In her ruling, Pechman also took issue with an aspect of Barr’s policy that left open the possibility that migrants, still awaiting a hearing, could be re-detained by ICE after being released on bond.
“The Government’s unwillingness to unconditionally assert that Plaintiffs will not be re-detained means that the specter of re-detention looms and these Plaintiffs and many members of their class face the real and imminent threat of bondless and indefinite detention …,” she said.
The White House was not terribly amused by this development.
Yesterday, a single, unelected district judge in Seattle issued an injunction that prevents the government from ensuring the detention of those aliens who cross the border unlawfully until the completion of their immigration court proceedings. The decision ignores an express statutory prohibition on granting class-wide injunctive relief against enforcement of the immigration laws and also holds unconstitutional a statute passed by bipartisan majorities in Congress during the Clinton administration that specifically prohibits the release of certain immigrants on bond.
The district court’s injunction is at war with the rule of law. The decision only incentivizes smugglers and traffickers, which will lead to the further overwhelming of our immigration system by illegal aliens. No single district judge has legitimate authority to impose his or her open borders views on the country. We must restore our democracy and ensure Americans have the voice to which they are entitled under our Constitution.
Strong statement, but now what?
When the GOP controlled the House there was a window, under any Speaker not named Paul Ryan, to start voting bills of impeachment on federal judges who decided that they were the law and not merely a referee. True, the number removed from office would be close to zero, but holding these scofflaws accountable has a value all its own. But we no longer have that option.
At some point the Administration needs to follow the apocryphal quote attributed to Andrew Jackson: Mr. Marshall has made his decision, now let him enforce it. In this case, the President should declare this ruling null and void for the very reasons that is list here. This judge, and most of the Ninth Circuit, and NeverTrumpers of all political leanings (let’s face it, at this point there is zero difference between Bill Kristol and his gang and the campaign staff of Pete Buttigieg and there hasn’t been for a while) would hold their breath and stamp their feet but you can guarantee that the case would fast track its way to the Supreme Court and they would have to spell out for once and for all what had been traditional practice which was that judges can only decide the matters before them for the parties in that case.
This is really simple. A judge in Seattle cannot lawfully set immigration policy for the nation. A single judge, or a single federal circuit, cannot make a ruling that goes beyond its own jurisdiction.
The White House has laid down a marker with this statement. Talk is cheap. What do they plan to do?