OPINION:
As soon as President Trump swept into power a second time, riding a wave of popular support for border security and deportation of illegal aliens, a legion of activists was deployed across the country.
Organized into innumerable groups, including the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund and the ominous-sounding Make the Road New York, the anti-borders mission was urgent: Mr. Trump must be stopped through all-out lawfare in the courts.
The lawsuits came as fast as the executive orders.
A common theme in these lawsuits soon became apparent. Infused with disdain for Mr. Trump and opposition to his agenda, the lawyers bringing the lawsuits again and again ignored the president’s hefty power, under statutes and the Constitution, to suspend, block or otherwise shut down the entry of illegal aliens into the country.
Mr. Trump can’t rule, this studied omission fairly shouted. Instead, U.S. District Courts, interpreting statutes without reference to this background of presidential power, were to tie Mr. Trump up in knots and run the country their way.
Examples abound. When Homeland Security Secretary Kristi Noem canceled a late Biden extension of temporary protected status for citizens of Venezuela, activists sued, claiming that the statute did not allow her to reconsider a prior extension.
Ms. Noem did not act only under the statute, however; she was also following an express directive by Mr. Trump, acting under his inherent constitutional authority. That made her the president’s agent, and it made her action a presidential action. It’s boilerplate law that no court can enjoin the action of a president.
When these matters were pointed out to the Supreme Court, the court stayed, or suspended, the injunction that the lower court had quickly granted, allowing the end of temporary protected status for Venezuelans to be carried out while the case proceeded.
A similar example involves mass parole. The Biden administration had granted parole to more than half a million aliens from four countries. They had only to sign up on a government app and show up at ports of entry to be given automatic parole and go wherever they wanted in America.
Not surprisingly, Mr. Trump terminated these unlawful grants of parole. When activists sued, a district court enjoined that action, concluding that the parole statute did not allow the termination.
A 1952 law, however, gives the president extraordinarily broad power — in fact, it merely channels his inherent power — to suspend the entry of aliens in the national interest. Once again, when the extent of the president’s authority was pointed out to the Supreme Court, the court stayed the lower court’s injunction, letting Mr. Trump continue to roll back Mr. Biden’s app-fueled invasion while the case is pending.
Perhaps the clearest example of activist discounting of presidential power was in a lawsuit in the District of Columbia. Stating in a proclamation that the southern border was being invaded, the president invoked his authority under the invasion clause of the Constitution and the 1952 law to send troops to the border to help expel illegal entrants. These measures had great effect; encounters at the border have dwindled to a trickle.
At this point, yet another activist group, the Refugee and Immigrant Center for Education and Legal Services, sued in U.S. District Court. It won an injunction against Mr. Trump’s border closure. The judge concluded that the administration could use only ordinary, drawn-out removal proceedings — not proclamations, troops and expulsions — to deal with the flood of illegal entries.
Once again, the judge simply ignored Mr. Trump’s blindingly obvious power under that 1952 law, not to mention the Constitution’s invasion clause.
In the travel cases decided in Mr. Trump’s first term, the Supreme Court refused to set any limits on the president’s discretion under that law. He is free, by proclamation, to suspend the entry of any class of aliens according to his own view of the national interest. The U.S. Court of Appeals for the District of Columbia Circuit — the court that reviews decisions of the D.C. District Court — has already held that such a power implies the enforcement mechanism of expulsion.
As these examples show, what the activists are trying to thwart and bury in a tangle of bad precedent is the president’s massive power not only over the executive branch but also over foreign affairs, of which immigration is a department.
To be sure, no president has the power to let in vast influxes of aliens, a limitation that was used effectively against Mr. Biden in the courts. The law, however, is very much on the side of this once and current president’s agenda, provided the courts do their job to shutter the activist war on the presidency and the Constitution.
• Christopher J. Hajec is acting executive director and general counsel of the Immigration Reform Law Institute, the nation’s only public interest law firm devoted solely to the effective enforcement of the nation’s immigration laws.
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