The same Trump-appointed judge who gave Jim Acosta a right to demand access to the White House in 2018 has now given 7.8 billion people the potential “right” to sue for entry into the country as for asylum, even when they purposefully pass over numerous other countries first. What’s next? Can I get standing in court to demand that Trump meet with me every Sunday morning to discuss my ideas? Why is it too much to ask that Republican-appointed judges understand the role of the judiciary, standing, fundamental rights, and sovereignty?
In another failure of the faux conservative legal establishment, Trump appointee Timothy Kelly ruled on Tuesday that Trump could not enforce his policy from last July requiring asylum-seekers to first apply in the first country they pass through before being eligible for asylum status in America. Shockingly, he did so even after the Supreme Court already stayed an injunction by a California judge against this rule.
It’s truly hard to overstate how radical this decision is. The entire definition of asylum is that you are seeking safety somewhere else because you are in danger in your own country. The fact that these people are cherry-picking the United States for their destination demonstrates that their claims are bogus.
Plus, the courts have ruled for hundreds of years that foreign nationals have no standing to sue for the right to come into this country. How then could there even be standing to hear such a case? Also, third-party advocacy groups, such as the Capital Area Immigrants’ Rights Coalition of Washington, the Texas-based Refugee and Immigrant Center for Education and Legal Services (RAICES), and Human Rights First were named as plaintiffs. So, could conservative NGOs now become plaintiffs to sue on behalf of foreign nationals to block foreign policy? Can I sue the Pentagon for using our soldiers and taxpayer funding for Kabul urban renewal projects?
For most of our history, the courts were clear that private parties can’t bring lawsuits to protect imputed rights of parties not before the court. Even if we are going to countenance the recent deviation from that principle, the third-party standing should not be expanded to foreign nationals. In Warth v. Seldin (1975), the Supreme Court explained, “Without such limitations — closely related to Art. III concerns but essentially matters of judicial self-governance — the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions.” Nowhere is this more evident than in questions pertaining to international migration and border security during times of peril.
This is the first time I can remember a court messing with a foreign policy of the president. These agreements were hashed out in high-level diplomatic negotiations with Central American countries. This is exactly why the Supreme Court said long ago that the “exclusion of aliens is a fundamental act of sovereignty” and that “the right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation” [Knauff v. Shaughnessy, 1950]. It’s not just that the president has 1182(f) delegated authority to shut off all immigration, even asylum requests. It’s inherent in his Article II powers to govern foreign affairs and foreign commerce.
The court further punctuated this point in Kleindienst v. Mandel, (1972): “In accord with ancient principles of the international law of nation-states … the power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government.”
This is why, even if the president didn’t fully abide by the Administrative Procedure Act (APA) in the way he promulgated this new policy, as Judge Kelly suggests, there is no way there can be valid standing or judicial jurisdiction to adjudicate the consequences of that policy in this context.
Moreover, 5 U.S.C. §553(a)(1) explicitly exempts a “foreign affairs function” from the APA. And for good reason. A president doesn’t have time to play games while national security is at stake. Border security and immigration policy sit at the nexus of foreign policy and national security. This is exactly why the Supreme Court said in Mathews v. Diaz (1976) that “decisions in these matters [immigration] may implicate our relations with foreign powers” and therefore, these “decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary.” In this case, these very policies were born out of bilateral and multilateral agreements with at least four countries.
Ironically, one of the problems we faced from the flood at our border in 2018-2019 was a health crisis overwhelming our hospitals with people coming here for care. Why is it that the courts believe elected officials can violate the Bill of Rights under the guise of combatting a public health crisis, but somehow foreign nationals can assert a right to enter even in the face of a health crisis?
The answer is that we have become strangers in our own land, and even Republican-appointed judges have bought into this inverted thinking that flips the Declaration of Independence and consent-based governance upside down. The lower courts, thanks to tacit greenlighting from the Supreme Court, have been creating rights for illegal aliens at breakneck speed. They have essentially abolished ICE.
Just this month, a federal judge vacated the deportation of an illegal alien with prior battery convictions who was arrested for rioting at a BLM event simply because he had DACA status! An illegal alien has no right to remain in the country even without a criminal conviction, but now that the courts have mandated Obama’s amnesty, at least temporarily, they are now staying deportations even of those with criminal records who are ineligible for the status under Obama’s system. The illegal alien has now violated the terms of his release and faces yet another court appearance next week.
Once again, we have Trump-appointed judges who not only decline to roll back existing bad decisions but will even add new insane principles to our body of case law that downright conflict with past Supreme Court precedent. Guess what: Judge Kelly is the same man who ruled in 2018 that political activist Jim Acosta had a right to a press badge to access the White House. This judge seems to be confused about fundamental rights, standing in court, and what exactly defines a judicial case or controversy.
Until we declare these court opinions null and void for violating separation of powers, we will never have a sovereign republic. But in order to do that, we need elected officials in the other branches of government who believe in the rule of law and the Constitution. That will not happen under this Republican Party and certainly not under its judicial appointments. (For more from the author of “‘Good Judges’? Think Again: Trump Appointee Blocks Key Trump Immigration Policy” please click HERE)
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