On Monday, Judge Richard Seeborg of the U.S. District Court for the Northern District of California ruled against President Donald Trump's "wait-in-Mexico" policy for prospective asylum-seekers arriving at our beleaguered southern border. The Washington Times reports:
A federal judge ordered the Trump administration to stop its new policy of sending asylum-seekers who jumped the border back to Mexico to wait while their cases proceed, ruling Monday that the plan was likely illegal.
Known informally as the "wait-in-Mexico policy," and officially as the Migrant Protection Protocols, the plan was a major part of the administration’s moves to try to stem the flow of immigrants crossing into the U.S. illegally.
Judge Richard Seeborg, an Obama appointee to the bench, said not only does the policy violate immigration law, but Mexico is so dangerous that making asylum-seekers wait there — even if they’re not from Mexico — is untenable.
Judge Seeborg said it may be possible to come up with a policy that would be legal, with sufficient safeguards, but the Trump administration’s version doesn’t cut it.
But this ruling is but the latest episode in the federal judiciary's immigration-centric revanchism against the Trump Administration. Last month, in a separate immigration matter, The Daily Wire reported how the Ninth Circuit, in finding that asylum seekers at the U.S.-Mexico border who fail their initial threshold of showing a "credible fear" of persecution in their home countries are entitled to a judicial appeal before they can be deported, seemed to contravene decades — if not centuries — of legal precedent:
As the great Justice Robert H. Jackson, hailed as a "champion of due process" by many and the author of the most famous dissent in 1944's Korematsu v. United States, said in 1953's Shaughnessy v. Mezei: "Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government."
Similarly, as Justice Antonin Scalia argued in his dissent in 2008's Boumediene v. Bush, "The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application." And it is well-established in U.S. Supreme Court case law that aliens stopped at the border are legally treated as if they are abroad — and are not treated as if they are lawfully in the interior of the country.
It seems like the president has perhaps finally had enough. On Monday, CNN reported that Trump seems to be telegraphing to — if not outright instructing — executive branch subordinates to willfully defy a rogue judicial diktat that contravenes the nation's protection of its security and sovereignty.
Last Friday, the President visited Calexico, California, where he said, "We're full, our system's full, our country's full — can't come in! Our country is full, what can you do? We can't handle any more, our country is full. Can't come in, I'm sorry. It's very simple."
Behind the scenes, two sources told CNN, the President told border agents to not let migrants in. Tell them we don't have the capacity, he said. If judges give you trouble, say, "Sorry, judge, I can't do it. We don't have the room."
It is not clear how serious Trump is, but to the extent he is, this could be the closest he has come thus far to defying the erroneous constitutional status quo of judicial supremacy. In an op-ed in January, I argued that Trump should find an incorrectly decided, deeply destructive, sovereignty-infringing lower court judicial order to openly defy (perhaps except for the named litigant to the lawsuit):
Trump should start with defying a district court judge. Notwithstanding [Cooper v. Aaron's] erroneousness and the fact that not even the Supreme Court can bind a president as to its own constitutional interpretations, there is no serious argument that a single district court judge can actually bring the entirety of the political branches of the federal government to a complete halt. The next time an Obama-nominated resistance-type district court judge reaches an absurd legal conclusion and attempts to issue a (completely lawless) nationwide injunction against a prized Trump administration priority, the president should effectively tell that judge to go take a hike. Trump can make like Lincoln and enforce the judge's order as it pertains to the named litigant(s) to the actual underlying lawsuit, but he should go no further. He should resolutely refuse to treat the diktat as a broader and binding legal ruling. And he should have his Department of Justice's Office of Legal Counsel write a formal memorandum explaining exactly why nationwide injunctions are lawless, why Cooper and judicial supremacism are wildly at odds with a rudimentary understanding of constitutional structure, and why Lincoln was correct to treat Dred Scott as non-binding for everyone except Mr. Scott himself.