The Rule Democrats Loved … Until Now

Joe Biden opened the border.

Donald Trump closed the border, and the Supreme Court just ruled that is okay.

The Left and the legacy media are going insanely crazy. They say the Supreme Court is now a Right-wing tool as an evil stand-in for vicious racism.

Yesterday, two Supreme Court decisions came down, both 6-3. It was the Republican appointees on the Court versus the Democratic appointees. The first decision concerned people seeking asylum at the US-Mexico border. The other had to do with the Trump administration labeling countries like Syria and Haiti as dangerous for the purposes of deporting people here on temporary protected status.

Before we get to the content of these decisions, we first need to understand what the Supreme Court does. Why is that important?

Because the Left wants the Supreme Court to be a thing it is not. They yell at the Supreme Court when it doesn’t do what they want.

What is the Court supposed to do? It does not make policy, good or bad. It does not decide what the policy is, good or bad. That’s why we elect a Congress and a president. It’s why the Supreme Court is an unelected branch of government: its job is to interpret what the law means and decide what the law says.

It doesn’t get to say, “We read the law. That was bad. Now we’re overturning the law and putting a new law in its place.”

Going back to the 1930s, the Left decided the Supreme Court ought to act as a super-legislature, a group of really smart people who can simply rewrite policy they don’t like into good Left-wing policy.

In fact, what they want is for the Supreme Court to say that when the president or Congress does Left-wing things, that’s legal. When the president or Congress does Right-wing things, that’s illegal.

But that’s not the job of the Supreme Court. And yesterday, the Supreme Court did its job.

It doesn’t matter whether you agree with what the Trump administration actually did at the US-Mexico border or with Haitian migrants. It is not the job of the Supreme Court to agree or disagree with such action. The question is, under our Constitution, who has the authority to do what?

The Supreme Court said that the Trump administration acted within its legally defined purview and that it could not simply overrule it based on whether it liked it or not. If you don’t like the policy, elect a different Congress or a different president.

These things became Supreme Court cases because of a long history of bad legislation. And then presidents take advantage of bad legislation, which is the story of congressional-presidential relations since Woodrow Wilson.

Congress would pass vague laws. Presidents would take advantage of that in order to maximize their own power.

Let’s start with the first decision. It was called Mullin v. Al Otro Lado. In 2016, the Obama administration set up a process called metering. There was heavy migration at the southern border, as you recall, and until 2016, if you were a non-citizen seeking asylum at a port of entry on the U.S.-Mexico border, you crossed into U.S. soil and then had to wait in line for inspection.

At that point, we had a legal duty to listen to you. And most people would come and claim asylum. They would claim they couldn’t return to their home country due to a specific threat.

That is a different thing from temporary protected status; asylum requires you to show that you face a specific threat. You can’t just say, “I want to come here because my home country sucks.” In order for that to be adjudicated, you would come, wait in line for inspection at a port of entry, and once you were on American soil, we had a duty to actually listen to your asylum claim.

Toward the end of the Obama administration, there were so many people arriving at the border trying to get in that the government approved something called a metering policy, under which border agents would basically stand at the border and say, “Don’t come in. You don’t have travel documents or a visa. The port of entry is full. Come back later. You stay there.”

Why did they do that? Because the law says you only have to process people who are in the country. If you don’t come in, we have no legal duty to process you. The first Trump administration expanded and formalized the metering policy, and then the Biden administration rescinded it.

And then they went even further. They said, “Welcome to the border. Claim asylum and say the magic words, ‘I fear for my life, and I can’t go back to my home country,’ and we’ll let you basically run around in the United States and stay forever.”

So the Trump administration, Part II came in and said, “No, no. No metering policy back in place. You’re going to wait over there, and we will not process you. The border is closed. It’s not a matter of whether the ports of entry are full. You’re not coming in. Period. And if you’re not on American soil, we have no duty to you. “

If you don’t like that policy, you can vote for Democrats to go back to the Biden way of passing laws. Or you could rewrite the law so that people who apply for citizenship have to remain in Mexico, the Trump “Remain in Mexico” policy. Or theoretically, you could rewrite the law so that everyone who applies for citizenship, no matter where they are, has to be given an asylum hearing, even if they don’t come into the United States, and we don’t have a duty to house them.

There are a bunch of ways you could do this. But that’s what Congress exists for.

The role of the various branches of government is important. You elect people to change the policy. The Supreme Court is here to interpret what the law currently says, not what it should say or who should be elected.

The plaintiffs in this case are a group of non-citizens.

They were trying to get into the United States, and they say that their rights were violated because their asylum cases were never heard, because they were in line, and that is as good as being in the country. They never entered the United States. They were turned away at the border.

In a decision written by Justice Samuel Alito, the Court said, “No. ‘In the United States’ means in the United States. You’re not in the United States if you’re waiting on the other side of the border.”

Justice Thomas wrote a concurrence, which said something further: that Congress has no power to force the president to bring aliens into the country. He said the Constitution allows Congress the power to regulate who doesn’t get to come in. But the Constitution does not specify a certain number of people who must be allowed into the country. Also, said Thomas, the people in this case are neither naturalized nor on the path to naturalization. You have no rights under the U.S. Constitution if you do not live in the country, if you are not on the path to naturalization, or if you’ve never entered the country.

In the more controversial case involving Haitian migrants, the only reason it reached the Supreme Court is that Congress passed an incredibly vague law that handed tremendous authority to the president. And then various presidents deliberately abused the law in various ways.

In 1990, Congress passed something called the Immigration Act. One of the provisions of the Immigration Act is something called Temporary Protected Status. The idea is, you come to the United States on a travel visa, you’re tooling around, and suddenly your home country goes nuts. There’s a coup, terrorists take over; you could be given temporary protected status by the executive branch.

At the time, Congress designated one country and one country only, El Salvador, as a country where things were so dangerous that you didn’t have to be deported back to your home country, even if you were, for example, overstaying your visa.

So what happened? Over the course of decades, the list of countries that became dangerous expanded, and the borders opened.

The Obama and Biden administrations used TPS to radically change immigration law. They would open the borders, bring in a bunch of people from crappy countries, label all those home countries dangerous, and now those people could stay forever.

The average temporary protected status holder in the United States has been here for 20 years.

So the Trump administration said, “It’s supposed to be temporary. It’s in the word temporary.”

Democrats are saying, “No, no, no, the focus should be on ‘protected.’’’

There are now 17 countries from which people are protected from going home. The Trump administration came in and they declared that a bunch of these countries are no longer dangerous for the purpose of deporting people. Those countries include places like Venezuela, Honduras, Nicaragua, Yemen, South Sudan, Haiti, Syria, Somalia, and Ethiopia.

I want to be clear about what’s factual and what’s not factual. Many of these countries are wildly dangerous; Haiti is one. It is the most dangerous country in the Western Hemisphere by a long shot. Five thousand and five hundred people were murdered in Haiti last year alone. Sex trafficking is rampant. Gangs basically run the place. It is now a hellhole.

But here’s what happened. Democrats are claiming that temporary protected status is a one-way ratchet; a president can legalize vast swaths of illegal immigration by labeling a country dangerous. But then a subsequent president cannot relabel that country unless there’s a showing that the country is not dangerous.

The question is what tools did the Trump administration have under the law?

According to stats from the U.S. Citizenship and Immigration Services (USCIS as well as the Congressional Research Service), in 2010, there were between 50,000 and 70,000 Haitian TPS holders. Sixteen years later, there were between 330,000 and 350,000 Haitian TPS holders. And remember, all these people have kids, and those kids are natural-born citizens of the United States.

So the Supreme Court had to decide whether or not the president can label Syria and Haiti non-dangerous for purposes of deportation. So Justice Alito wrote, “In these cases, we consider whether respondents who challenge the termination of temporary protected status for aliens from Syria and Haiti are entitled to orders postponing the terminations during litigation. We hold they are not. The TPS statute plainly bars consideration of respondents’ non-constitutional claims and allows ‘no judicial review’ of any determination with respect to the termination of a TPS designation.”

You might not like how the Trump administration is using the law, but the law says what the law says.

If Congress wishes to designate Haiti as a country covered by TPS in law, it can do so. They can define how long people can stay; they can define how people are deported.

But that’s not what they did. In this law, Justice Thomas said that Congress barred all judicial review of TPS termination decisions, including constitutional claims. Courts are obliged to simply give effect to the ordinary meaning of the law.

Democrats are going to call Republicans cruel. Republicans are going to say, “We should not be taking in hundreds of thousands of people illegally and then backfilling that with a TPS designation.”

The Court isn’t the problem here. If you don’t like the law, change the law.

Attacking the Court for simply interpreting the law as written is ugly stuff.