With President Donald Trump set to pick his Supreme Court nominee on Tuesday, we should consider the ironic maxim attributed to 19th century French journalist Louis Veuillot’s : “When I am weaker than you, I ask you for freedom because that is according to your principles; when I am stronger than you, I take away your freedom because that is according to my principles.”
When out of power, the Left appeals to federalism and separation of powers to oppose Trump’s (common sense and completely legal) executive measures on immigration. When in power, it gladly wields Executive Actions to impose Open Borders undemocratically.
At the same time, some Conservatism Inc. hacks, many of whom oppose immigration enforcement anyway, love nothing better than to obstruct a Republican president to show how principled they are. Most of the formerly “Never Trump” conservative legal establishment has opportunistically jumped on the Trump Train to gain jobs and influence. But they will undoubtedly abandon him if it appears politically expedient.
Liberal activist judge Ann Donnelly’s decision to stay partially Trump’s clearly legal Executive Order to restrict certain Middle Eastern immigration underscores the importance of solid court picks. As I noted in my previous piece, I have serious reservations about top contender Thomas Hardiman. The other favorite for the spot, Neil Gorsuch, does not have a terrible record, but also raises some concerns. Last year he wrote a decision and separate concurrence in Gutierrez-Brizuela v. Lynch, which required the Board of Immigration Appeals to reconsider granting relief to an illegal alien.
To be clear, unlike Thomas Hardiman’s bad immigration rulings, Gorsuch almost certainly made his decision based on principled views on administrative law, rather than opposition to immigration enforcement. Rather than stretching the law, the case raised difficult questions about separation of powers. Unfortunately, these principles could undermine Trump’s immigration agenda.
Gorsuch’s concurrence called for reconsidering the “Chevron Doctrine.” To oversimplify greatly, the doctrine requires courts to defer to federal agencies’ interpretation of ambiguous or open-ended statutes, if they do not directly conflict with Congressional intent. Justice Scalia, who generally believed in a limited role of the judiciary, believed that "In the long run, Chevron will endure and be given its full scope” because “it more accurately reflects the reality of government, and thus more adequately serves its needs.” [Chevron Step Zero, by Cass Sunstein, Chicago Unbound, 2005]
However, the conservative legal movement has moved towards a more activist libertarian jurisprudence.
Gorsuch’s concurrence reflects this trend. He argued that “transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.”
While this is a legitimate point, Justice Scalia was far more realistic about the role of agencies. The administrative state has more than its share of flaws, but shifting power from unelected bureaucrats to unelected judges is no improvement. I do not have any strong views on the Chevron Doctrine in the abstract, but we do not want to undermine it during the Trump Administration for practical reasons.
At the very least, The Trump Administration will almost certainly deport a lot more people than Bush or Obama. The ACLU, MALDEF, and Thomas Hardiman’s friends at Ayuda will try to block these deportations with frivolous requests for relief and asylum. Trump will need to issue regulations and orders to streamline and limit challenges. An activist judiciary second-guessing every single Board of Immigration Appeals denial, will make this extremely difficult.
I can already hear the cliché: “Don't give the government power you wouldn't want wielded by your worst political enemy.” This is a reasonable concern. We would not want Obama to have unlimited Executive power.
But one can honestly support Trump’s executive and federal actions and oppose Obama’s without hypocrisy. Arizona's SB 1070 only mirrored federal law, which explicitly forbids sanctuary cities. Obama had absolutely no legal authority for his Executive Amnesty, but federal law gives the President’s explicit statutory authority to suspend immigration from “any class of aliens into the United States would be detrimental to the interests of the United States.”
There’s nothing in Gorsuch’s record to suggest that he would block any of these legal and common sense reforms. The problem: most immigration cases do not end up at the Supreme Court.
As evinced by the stay against Trump’s terrorist ban, activist District and Appeals Court judges will use any excuse to stifle the president’s actions. Given that that the courts managed to block so many of Bush and Obama’s deportations when they are required to give strong agency deference, if they had more leeway, it could completely cripple Trump’s enforcement.
Donald Trump may be our last chance. If he does not make a serious dent in illegal and legal immigration, whatever is left of the Old constitutional republic will give way to a banana republic.
We need legal realists who will not place libertarian principles above the survival of the country.
A Gorsuch nomination would not be a disaster, and he may very well be a solid Justice. If he’s picked, I don’t think immigration patriots could or should fight his nomination.
But it underlies the need for Trump and others to think outside the typical conservative/libertarian paradigm to find judges who will allow him to stop the crisis of mass immigration.
John Reid [email him] is an American citizen and a recent law school .