Forget new border laws; federal judges say we can’t even enforce current ones

Thomas Jefferson told us in the document we celebrated this week that we have a right to be governed by officials “deriving their just powers from the consent of the governed.” Yet 243 years later, our governing elites believe that an unelected and life-tenured Seattle-based judge can dictate to the entire country that we can no longer regulate who comes into our country and who is released into our communities.

This latest radical judicial ruling, in a series of stupefying rulings attacking the foundation of our sovereignty and immigration laws, demonstrates once again that we don’t have an immigration law problem; we have a judicial supremacy problem.

On Tuesday, with the flick of her pen, a random federal judge in Seattle expanded the judicially created catch-and-release loophole from family units to all single adults. U.S. District Judge Marsha Pechman, a Clinton appointee, nullified the 1996 immigration law mandating detention of those coming here seeking asylum and created a Fifth Amendment right for them to be released on bond. She went a step further and required that all those within custody receive bond hearings within seven days, that the proceedings of the immigration court trials must be recorded, and that the immigration judges must provide explanations for the basis of denying bond. Also, in contravention to 130 years of case law, she placed the burden of proof on the government, not on the alien, to show why these people shouldn’t be released.

There are no words in the English language to describe the radical nature of this ruling. Section 235(b)(1)(B)(ii) of the Immigration and Nationality Act, which passed the Senate unanimously in 1996, says that those seeking asylum “shall be detained for further consideration of the application of asylum.” Now, in a growing trend among judges in the district courts within the Ninth Circuit, a judge is saying that the law itself violates the Fifth Amendment. Pechman claimed that this administration’s implementation of the 1996 law violates “50 years of statutory and case law supporting the right of persons detained for non-criminal reasons to be released upon posting bond.”

In fact, her application of bond hearings to aliens within the context of immigration proceedings is a violation of settled case law. As the court established in U.S. v. Ju Toy (1905), “The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction, and kept there while his right to enter was under debate.” There is no Fifth Amendment right because one cannot unilaterally assert jurisdiction before being admitted to the country. Jurisdiction for constitutional rights is a legal distinction, not a physical one.

Judge Pechman wrote that denying bond hearings is a violation of due process, but due process for aliens in the context of immigration decisions is whatever Congress says it is. As the court said in Lem Moon Sing v. United States (1895), “The decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”

Read the rest from Daniel Horowitz HERE.