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Judges vs. the people: Federal jurists are thwarting the will of voters

Judges vs. the people: Federal jurists are thwarting the will of voters

Judges vs. the people: Federal jurists are thwarting the will of voters
President Donald Trump and Homeland Security Secretary Kirstjen Nielsen address members of the media before signing an executive order to end family separations, during an event in the Oval Office of the White House in Washington June 20. (Pablo Martinez Monsivais / AP)

Presidents enjoy significant discretion in implementing federal policy. President George W. Bush, for example, was given broad latitude in waging the war on terror, as was President Barack Obama in implementing various features of the Affordable Care Act. To be sure, both presidents faced legal challenges to their agendas. But federal courts generally rejected these challenges and deferred to executive discretion.

This is the way it has always been. The other side may not like the President’s position. But, in President Obama’s words, “elections matter.”

It turns out that elections do matter, unless the nation’s elites decide that the wrong person was elected. In that case, an elite group of unelected, life-tenured, federal judges matter — not the people.

This is precisely what we are seeing with regard to the cardinal feature of Donald Trump’s historic campaign. On the issue that propelled Trump to the presidency — illegal immigration — our 45th President has been stifled and suppressed at every turn, with the federal courts making themselves the elite arbiters of “The Resistance.”

The latest federal judge to join the Judicial Resistance is Judge Jon Tigar, in a case over how asylum claims must be administered. Asylum claims have exploded in the last decade, increasing by almost 1,700% since 2007. Our asylum laws are designed for people truly facing persecution. But over the past decade, immigration lawyers have manipulated these well-intentioned laws. The Trump administration has sought to limit the more dubious persecution claims that immigration lawyers have used to game the asylum system.

This is where Tigar enters the picture. As the migrant caravans approached the southern border, Trump and Department of Homeland Security Secretary Kirstjen Nielsen tried to balance our need to ensure border security with our long-standing commitment to grant asylum to those fleeing persecution. Trump thus required asylum claims to be made at designated border crossings and American consulates in Mexico.

Tigar blocked that attempt, issuing a nationwide restraining order mandating that the Trump administration must permit any caravaners who make it across the border to stay in the U.S. for as long as it takes to process their asylum claims.

Tigar’s ruling is part of a larger problem of legal advocacy groups seeking national injunctions in notoriously liberal districts to thwart Trump’s immigration agenda. The very idea of a nationwide injunction didn’t even exist before the 1960s. And since then, they have been exceedingly rare. It was not until the election of Trump that they became common, as Democratic state attorneys general and legal advocacy groups seized on these injunctions as an indispensable legal weapon in their arsenal.

By carefully selecting where they file lawsuits, and insisting on nationwide injunctions as the proper remedy, these advocacy groups have managed to secure reversals of Trump administration policy, all against the will of the people. They have pulled off this stunt against Trump more than 20 times in just two years — more than any other President has dealt with in an entire term.

This happened with the so-called “travel ban,” where legal advocacy groups repeatedly prevailed on nationwide injunctions, forcing Trump to narrow the ban on multiple occasions. This happened with Trump’s proposed ban on transgender individuals serving in the military. And this happened with Trump’s efforts to induce sanctuary cities to enforce federal immigration law. In each of these instances, federal judges used ambiguous constitutional language, such as the guarantee of “due process” and “equal protection,” to trample the President’s agenda, effectively silencing the 63 million people who voted for him.

While some may applaud what Judge Tigar’s ruling means for President Trump’s immigration policy, we should all be concerned about what this ruling means for the future of our constitutional republic.

Merriam is an assistant professor of public law at Loyola University.

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