For many years now there has been a growing concern in this country about judicial activism, about the tendency of judges – particularly federal judges – to simply legislate from the bench. There can be nothing inherently less democratic than the notion that a single man or woman, elected by no one, can effectively create law by judicial fiat. Equally as dangerous, is the idea that a single judge, by virtue of the issuance of a national injunction, can simply substitute his or her judgment for that of the President of the United States and, in effect, declare himself to have the powers reserved to the Chief Executive.
Since President Trump took office federal judges have issued 54 such injunctions. That is 54 cases in which federal judges have ordered the federal government to ignore the orders of a duly elected President. These injunctions include an alarming number of cases involving foreign policy and national security, but none of them is perhaps nearly as egregious or alarming as the recent injunction issued by the 9th Circuit concerning the President’s “Wait in Mexico” policy.
In 2019, at the direction of the President, the Department of Homeland Security imposed a new rule on those arriving at our borders and demanding asylum. The rule required asylum seekers from nations other than Mexico to wait in Mexico for their asylum applications to be processed. There are in excess of 800,000 asylum cases backed up in U.S. courts waiting to be heard, and it can take years for such cases to work their way through the system.
Prior to the 2019 change asylum seekers were simply brought into the country and then turned loose until their hearing date. Only 10% of those released ever bothered to show up for their hearings.
There are currently 60,000 asylum seekers waiting in Mexico pursuant to Trump’s policy. Based on historical data, 80% of these will ultimately be judged inadmissible. Under the previous policy, this would not have made any difference. The individual would already have been released, would simply ignore the order to leave the country, and no effort would be made to locate or deport him.
In FY 2018, the last year for which we have complete statistics, Chinese citizens were the second-largest block of asylum seekers to the United States, behind only Venezuela. Already this year, another 328 Chinese have been detained illegally crossing our southern border. The idea that individuals appearing at our borders are all coming from Honduras or Guatemala is simply inaccurate. East Asians and Sub-Saharan Africans form a large portion of those with whom immigration authorities are contending.
The 9th Circuit’s injunction has been temporarily stayed while the Trump Administration makes a frantic attempt to get the matter before the Supreme Court and obtain a different ruling. If that does not happen we are only days away from the “Wait in Mexico” policy being vacated and tens of thousands of individuals, about whom we know next to nothing, being released into this country. We are only days away as well from them bringing with them into our country whatever microbes and contagion they may be carrying.
All of this is occurring as the Coronavirus explodes worldwide. New modeling by the Australian National University projects a best-case model in which the virus will kill 15 million people. In a high-severity model – one based on the Spanish Flu pandemic of 1918 – we could be looking at 68 million dead and $9 trillion dollars lost globally.
Italy has effectively locked down a quarter of its citizens. Opposition forces in Iran say the death toll there went over 2000 days ago. There are almost 8000 confirmed cases of the coronavirus in South Korea alone. The U.S. Army has stopped moving troops to and from both South Korea and Italy out of concern about spreading the virus. The New York Stock Exchange closed briefly earlier today because shares had fallen 1900 points in a single day over fears regarding the disease. Shortly thereafter the market reopened, and shares began to fall again.
If there is a definition of the kind of crisis for which the office of the Chief Executive was designed this is it. Fighting this contagion, making the kinds of rapid decisions required and coordinating the efforts of the mammoth federal government requires a single voice and command authority. Hesitation, delay, and indecision can only lead to chaos and unnecessary deaths.
And, yet, in the midst of this disaster, as the lives of millions hang in the balance the orders of our President are set aside on the basis of a ruling issued by judges with no Constitutional role in national defense whatsoever.
The judiciary has its role in our government, and it is a critical one. That role does not include running or micro-managing national security. We are days away from an action, which may have catastrophic effects and from which we may not be able to recover. We are face to face with the insanity of “national security by judge.“