The Courts Rule Supreme Over Immigration Policy

REUTERS/Eric Thayer

Scott Greer Contributor
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President Trump’s Supreme Court appointee Neil Gorsuch sided with his liberal colleagues Tuesday in making it harder to deport non-citizen criminals.

Surprisingly, Gorsuch’s divergence from fellow conservative justices Clarence Thomas and Samuel Alito was enthusiastically received by conservatives.

“I’m actually reading Gorsuch’s concurrence and find myself nodding along with him,” talk radio host Erick Erickson tweeted. “His basic argument is that the law, as construed, gives judges way too much discretion to act on their whims because Congress was too vague in how it wrote the law.”

“No, the opinion is actually highly conservative – and it has nothing to do with immigration as such,” pro-Trump columnist Kurt Schlichter argued in response to criticism of Gorsuch’s decision.

National Review’s David French defended Gorsuch’s opinion as a strike “against arbitrary power” and would help curtail “executive overreach.”

Unlike the liberal justices who ruled with Gorsuch, the conservative jurist argued that the case shows why all “vague” laws should be subjected to extra scrutiny to curtail the power of the administrative state. The liberal justices, as expressed in the opinion authored by Justice Elena Kagan, just wanted to make deporting immigrants harder. (RELATED: Here’s Why Gorsuch Joined Liberals To Strike Down A Deportation Statute)

Gorsuch’s reasoning would certainly do damage to liberal priorities if applied to other cases, as ThinkProgress admitted when the progressive outlet said his opinion should “chill you to the bone.”

But when it comes to immigration, all Gorshuch’s ruling does is further reinforce the reality that the courts determine policy — not the president or Congress. The power of the administrative state will still remain entrenched after the ruling, just not when it comes to enforcing immigration law.

Several conservatives hoped that Gorsuch’s decision would give more power to Congress to handle immigration policy. President Trump himself appeared to agree with this sentiment when he called for lawmakers to make deportation statues less vague.

“Today’s Court decision means that Congress must close loopholes that block the removal of dangerous criminal aliens, including aggravated felons. This is a public safety crisis that can only be fixed by……..Congress – House and Senate must quickly pass a legislative fix to ensure violent criminal aliens can be removed from our society. Keep America Safe!” Trump tweeted Wednesday.

Unfortunately, hoping Congress will act on anything immigration-related in 2018 is delusional. They couldn’t pass a legislative fix to the Deferred Action for Childhood Arrivals (DACA) program and ceased all efforts to do so after the courts extended it, letting the country know who really makes immigration policy.

It’s highly unlikely Congress will take up Trump’s plan. Immigration is not a priority for Republican leaders and Democrats believe every immigration proposal from the president is white supremacy. (RELATED: Everything Is Racist — DACA Deal Edition)

So that leaves the courts with the ultimate power, and now they have magically woken up to the dangers of the administrative state — when it is used in a manner they oppose.

Nearly every immigration-related proposal put forth by the Trump administration has been struck down by the courts. The travel ban, anti-sanctuary city measures and scrapping DACA have all met dismal fates at the hands of judges. A day after the Supreme Court ruled against the White House on deportations, an appeals court handed Trump another defeat in ruling against his proposal to defund sanctuary cities.

Gorsuch’s fears about the administrative state are overblown when it comes to immigration. In this case, he should be more worried about what another set of unelected officials are doing.

In their rulings against Trump, judges have come awfully close to imposing an open borders clause in the Constitution, essentially arguing immigration enforcement goes against America’s character. The Supreme Court has punted on hearing lower court decisions on the travel ban and other concerns, allowing liberal judges to have the final word on immigration policy.

The people who elected Trump to reform immigration have no say in the matter.

With Congress deadlocked and the administrative state handcuffed by liberal judges, Americans can’t expect immigration law to be properly enforced. Rather than striking a blow at executive overreach, Gorsuch ensured this abysmal situation continues.

No wonder Trump is incensed his Supreme Court solidified the courts’ reign over immigration policy.

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