How the Judiciary Became ‘The Most Dangerous Branch’ on Immigration

By Ryan Foley | February 24, 2020 | 11:27am EST
Pictured is Justice with scales. (Photo credit: LOIC VENANCE/AFP via Getty Images)
Pictured is Justice with scales. (Photo credit: LOIC VENANCE/AFP via Getty Images)

Ringing in the New Year with a bang, nearly 200 swamp-dwellers on Capitol Hill wrote a letter to the Trump administration begging for more foreign workers. 

Both political parties deserve blame for perpetuating an immigration system that favors special interest groups over hardworking American taxpayers. However, no branch of government has done more to create and bolster a dysfunctional immigration system than the federal judiciary – which is ostensibly free of partisan politics.

Envisioned as the “least dangerous” branch of government by Alexander Hamilton, the federal courts have instead become the most dangerous branch of government thanks to activist judges legislating from the bench. These knights in black satin increasingly appear to favor the interests of illegal aliens and other immigration law breakers, in direct defiance of the Immigration and Nationality Act of 1965.


Judicial activism in the immigration arena is nothing new.  The courts began unilaterally altering U.S. immigration laws decades ago.  In its 1982 Plyler v. Doe decision, without any legal basis for doing so, the Supreme Court declared that every illegal alien child in the United States has the right to a taxpayer-funded public education. According to Justice William Brennan, the author of the decision, “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

That may have been the greatest piece of legal sophistry committed to writing in the 20th century. In essence, Justice Brennan erased all distinction between illegal aliens and those lawfully admitted to the U.S. with regard to equal protection claims. What is even more astounding is that he enticed four other justices to join him in such an overt repudiation of legal logic.

The practical result of Plyler v. Doe is that public K-12 education of illegal alien students costs states a whopping $43 billion annually. Taxpayers can thank Justice Brennan’s quixotic effort to impose his personal view of “social justice” on America’s schools, and taxpayers, for that massive price tag.

Between Plyler and the election of President Trump, additional court rulings demonstrated that federal judges still seem to care more about protecting illegal aliens than defending the Constitution. Just days after California passed Proposition 187, a ballot initiative designed to discourage illegal immigration by prohibiting illegal aliens from accessing public benefits, a federal district court struck it down, invalidating the will of millions of California voters.

Following President Trump’s election, the sovereignty-smashers in the judiciary took their advocacy on behalf of foreign nationals and illegal aliens to the next level. A week after taking office, President Trump signed an executive order restricting travel from terror-prone countries that were actually identified as national security threats by the Obama administration. Like clockwork, a federal judge in Washington State temporarily voided the travel ban, arguing that it could be unconstitutional and feeding into the false narrative that the executive order amounted to a “Muslim ban.”

Eventually, the litigation battle surrounding the Trump travel ban went all the way to the Supreme Court.  In Trump v. Hawaii, the Court explained that Section 1182(f) of the Immigration and Nationality Act “grants the President broad discretion to suspend the entry of aliens into the United States,” allowing the President to decide “whether and when to suspend entry…whose entry to suspend…for how long…and on what conditions….The Proclamation falls well within this comprehensive delegation.”

But while the law may have prevailed in the Supreme Court’s ruling on the Trump “travel ban,” which confirmed the broad discretion given to the executive branch with regard to immigration enforcement, it did not take long for the judiciary to forget what the Supreme Court had just told it. Last year, the Trump administration issued updated guidance for the application of “public charge” laws designed to ensure that those seeking a green card or temporary admission to the United States can support themselves without requiring assistance from public welfare programs. Despite the fact that Section 212(a)(4) of the Immigration and Nationality Act clearly defines “any alien” who is “likely at any time to become a public charge” as “inadmissible,” three separate judges prevented the Trump administration from implementing that guidance.

Thanks to liberal activists masquerading as neutral arbiters of the law, the federal courts have created multiple magnets attracting illegal aliens to the country and have attempted to declare most attempts to rein in illegal immigration unconstitutional.  Until the judiciary stops deliberately undermining immigration law, it will remain the most dangerous branch of government. As a result, American citizens continue to find themselves held hostage to the personal whims of the federal courts’ leftist judicial activists   – which does not bode well for those who want to live in a sovereign country with safe streets.

Ryan Foley is a researcher at Federation for American Immigration Reform (FAIR).


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