“A republic, if you can keep it,” Benjamin Franklin famously warned in describing to a group of curious onlookers what form of government the men of the Constitutional Convention had devised. It is difficult, if not impossible, to ponder the possibility that Franklin could have envisioned such a systemic republic-undermining assault from what Alexander Hamilton famously described in The Federalist No. 78 as “the least dangerous” branch.
As I reported on Friday, the U.S. Court of Appeals for the Ninth Circuit last week found — for the very first time in the history of the American republic — an affirmative constitutional “right” for prospective asylees denied their initial “credible fear” threshold inquiry by asylum officers to appeal that denial not just to a Department of Justice immigration judge, but to a formal Article III tribunal.
As the case may be, 8 U.S.C. § 1252(e)(2) limits — and, indeed, all but eradicates — judicial review of habeas corpus claims for those would-be asylees eligible for expedited removal and initially denied their “credible fear” threshold inquiry by asylum officers. But the Ninth Circuit did not care for such legislative niceties, and the three-judge panel of unanimous Bill Clinton nominees decided to erroneously extend the already-erroneous 2008 constitutional travesty of Boumediene v. Bush to apply to border invaders.
The Ninth Circuit’s ruling creates a circuit split with the U.S. Court of Appeals for the Third Circuit, which reviewed the same question and concluded that “Congress has unambiguously limited the scope of judicial review” for the class of aliens in question, and that, “considering Congress’ and the Executive’s plenary power over decisions regarding the admission or exclusion of aliens…this limited scope of review is [not] unconstitutional.”
The plenary power doctrine to which the Third Circuit alluded holds that the two political branches — and not the judicial branch — have essentially exclusive power, as a fundamental derivative of overarching national sovereignty norms, to regulate all aspects of the ultimate composition of the body politic. The plenary power doctrine is also why, in the 2012 Supreme Court case of Arizona v. United States, Justice Antonin Scalia described “the power to exclude from the sovereign’s territory people who have no right to be there” as “the defining characteristic of sovereignty.” It is why 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 Japanese internment case, 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.”
The Ninth Circuit’s decision thus flouts centuries of largely uninterrupted case law, touching upon the most foundational norms of what it ultimately means for a nation to remain a sovereign entity. While aliens present in the United States are afforded constitutional due process rights for criminal proceedings, the Supreme Court unequivocally stated in 1954’s Galvan v. Press that the formulation and promulgation of “policies pertaining to the entry of aliens and their right to remain here…is entrusted exclusively to Congress [and this] has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government.” Deportation of an inadmissible alien, then, is a civil extension of the citizenry’s foundational and sovereign right to self-determination; deportation is not, much to the legal Left’s chagrin, constitutionally analogous to a criminal punishment.
The Ninth Circuit’s awful ruling — essentially granting constitutional habeas corpus rights to the other seven-plus billion non-Americans on Earth who would march upon our borders — is hardly peculiar. Indeed, the Trump era has seen an unprecedented deluge of “judicial resistance“-infused faux-legal folderol.
How far we have strayed from the classical Madisonian framework, as laid out in The Federalist No. 51: “In republican government, the legislative authority necessarily predominates.” How much closer we have gotten to that which against the Great Emancipator warned in his First Inaugural Address, wherein “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” Of course, for Lincoln, that “eminent tribunal” was at least the Supreme Court! But in the year 2019, it is the lower federal courts that disproportionately rule the roost and are declaring open warfare upon our sovereignty.
In an era in which lower courts run amok serve as a one-way ratchet for the progressive agenda, and in which “but judges!” and “but Gorsuch!” seem to be the preeminent rallying cries for large swaths of the “conservative” base, there is perhaps an even more profound problem. When legislators, bureaucratic mandarins, and citizen-activists alike of all political stripes are complicit in the delegation of power to unelected black-robed oracles behind the bench, the ultimate risk is civic in nature.
What We the People ultimately risk losing, besides our ability to govern ourselves and direct our own political destiny, is the citizen-driven associative industriousness and civic virtue that made Tocqueville so fond of the American experiment. How are we to remain a free, civic-minded people if we continue to debase ourselves by outsourcing our national sovereignty and the very composition of our body politic to unelected judges? How are we to remain duty-minded and constantly vigilant against tyranny if that tyranny comes not in the form of legislators and executives who can be held accountable at the ballot box, but in the form of judicial usurpers who accomplish with the stroke of a pen what the political and cultural Left could not otherwise accomplish over the span of decades?
The truest supremacist threat to the health of the American experiment is judicial supremacy. It simply must end.