Judge William Haskell Alsup, a federal judge in the Northern District of California, on Tuesday blocked the Trump Administration from winding down the Deferred Action for Childhood Arrivals (DACA) program. An executive memo by Homeland Security Secretary Janet Napolitano created DACA in June 2012. Ordinarily, a memo could be undone by another memo without much fuss. Not so in the mind of this #Resistance-beholden judge.
Alsup’s ruling truly boggles the mind. President Obama for months insisted he had no authority to grant even quasi-legal status to those children of illegal immigrants whom we now call “Dreamers”—a rhetorically irresponsible and loaded designation meant to inspire sympathy and pity.
Former House Speaker John Boehner’s office, in fact, compiled a list of the 22 times Obama said he couldn’t do what he then went on to do: grant any sort of legal status to young illegal aliens. By way of making this bait and switch explicit, here was President Obama during an address to the National Council of La Raza in July 2011, before DACA was created: “Now, I know some people want me to bypass Congress and change the laws on my own. . . . Believe me—believe me, the idea of doing things on my own is very tempting. I promise you. Not just on immigration reform. But that’s not how—that’s not how our system works. That’s not how our democracy functions. That’s not how our Constitution is written.”
Overruling the Election
Judge Alsup has decided that presidential power on immigration ratchets only one way: to the left. In his view, that President Trump has an electoral mandate on immigration to reverse acts of his predecessor means nothing; that President Trump has the duty to follow laws passed by Congress, in this case the Immigration and Nationality Act of 1965, means nothing; that Supreme Court precedent, historical practice, and principles of national sovereignty all strongly support the idea that the president has broad authority over immigration means nothing; that the president has an obligation to assess the constitutionality of intra-executive actions means nothing; that judges ought only to interpret existing law, not make new law, means nothing.
All logic, basic common sense, separation-of-powers principles, and notions of checks and balances must be violently bent to comport with the aims of #TheResistance.
Fact is, so-called Dreamers had no legal status before DACA. DACA is very likely unconstitutional anyway, and President Trump has merely returned us to the status quo ante. That such basic reasoning and perfectly legitimate action from a duly elected president inspires such judicial jiu-jitsu signals that something is deeply wrong in the republic. Our sense of the proper relationship between the branches has been severely warped and yielded rotten fruit: judges’ playing politics.
The real problem for the Left is that President Trump appears to be serious about making good on his campaign promises; such a reality is, of course, intolerable to the political class which is allergic to real change and prefers to dwell in the swamp that is Washington D.C., where elections are mere sideshows, and the real business of the realm is to prattle endlessly about change come election season—but Heaven forbid campaign platforms that the little people believed in and voted for become reality!
Judges Don’t Make the Law
Judge Alsup appears to have bought into the cancerous logic of “judicial supremacy”: the idea that the courts are the final arbiters of the Constitution’s meaning.This is nonsense. Each co-equal branch has the authority—indeed, the solemn duty—to uphold their oath of office: to preserve, protect, and defend the Constitution. It is beyond insane for a single district court judge to so blatantly set policy for the entire nation because the judiciary is equipped only to interpret the law (which is what it should stick to doing)—not wade into complex policy debates.
Congress makes law. The executive enforces the law. The courts interpret the law. For those who want to see a change in immigration law, your time is better spent cajoling Congress to embrace once more its Article I authority as the primary branch of the federal government rather than to appeal to federal judges—some of whom seem unable to resist play-acting as revolutionary vanguards to a deeply silly and delusional “movement” whose aims and tactics threaten the very stability of our constitutional republic.