We need more immigration enforcement, not more lawyers
May 10, 2019
By Lew J. Olowski
Immigration reform is like quicksand: an issue so dense, so enveloping, that many proposed solutions actually deepen the problem. A prime example is the proposal to make brand new courts for immigration cases: so-called "Article I" courts created by Congress.
Both the American Bar Association and the Federal Bar Association — two special-interest groups for lawyers — embrace this idea. The court's proponents suggest taxpayers pay for lawyers to represent illegal aliens free of charge. They also claim that taxpayers should hire more immigration judges, while expecting each judge to work fewer cases.
Even apart from their potential cost, independent Article I immigration courts are a terrible idea. Such courts would strip law enforcement authority away from the U.S. Department of Justice, which presently handles immigration cases. The goal is to "level the playing field" for illegal aliens, undermining law enforcement officials' ability to police the border. Naturally, the proposal enjoys support among those opposed to the deportation and removal of illegal aliens.
Article I courts might also kill immigration reforms that would make the process fairer, faster, and simpler. For example, President Trump has suggested hiring more immigration judges and dispatching them to the border to process cases. An Article I court, existing separately from the Department of Justice and not under the president's authority, could simply reject the idea. Also, Attorney General William Barr recently closed a catch-and-release loophole by overruling an immigration judge. Under an Article I court, that judge's ruling would stand, and that loophole would have stayed in place. Likewise, former attorney general Jeff Sessions stopped a longstanding trick of immigration judges: granting "stealth amnesty" by indefinitely closing unresolved cases. Independent Article I courts could have gone on handing out stealth amnesty just as before.
Worst of all, Article I immigration courts would upend the Constitution's checks and balances and injure our democracy. That's because immigration policy and enforcement are reserved to the democratic process, not to politically unaccountable judges.
The Supreme Court has affirmed this principle for centuries. "For reasons long recognized as valid, the responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government" (Mathews v. Diaz [1976]). "To deny or qualify the Government's power of deportation ... should not be initiated by judicial decision. Reform in this field must be entrusted to the branches of the Government in control of our international relations and treaty-making powers" (Harisiades v. Shaughnessy [1952]).
In other words, immigration policy is a job for Congress and the president. "The power to exclude or to expel aliens ... is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority" (Fong Yue Ting v. United States [1893]). If Congress wants to change immigration policy or enforcement, then it must legislate — not pass the buck to unelected Article I judges.
Article I immigration courts would also obliterate the distinction between U.S. citizens and illegal aliens. Entry into the United States is not a right guaranteed to everyone in the world. It is a privilege extended by the U.S. government on a case-by-case basis. Under our current system, access to immigration judges at the U.S. Department of Justice extends generous consideration to immigration applicants — even those who have entered illegally — while still protecting Americans' sovereign right to determine, by voting in elections, who may enter their country.
The only readily available way to solve the immigration crisis is to enforce the immigration laws that have already been implemented through the democratic process — not to invent a brand-new court system. Repel unlawful border crossings and reduce the incentives for illegal entry in the first place. Build a wall. Mandate E-Verify. Make largely bogus asylum claimants wait in Mexico for their hearings.
In other words, instead of thrashing around for some new gimmick, pull out of the quicksand by grabbing the lifeline already within reach.
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