October 11, 2016/by Daniel Horowitz
If you thought executive amnesty was bad, wait until you get a taste of judicial amnesty. A new order from a federal judge issued a week from last Friday will prevent ICE from placing detainers on many illegal aliens held in local jails in six states. This radical violation of American sovereignty — judicial tyranny on steroids — will have the effect of creating a judicial sanctuary for sanctuary cities and prevent the Obama administration from detaining even the few illegal aliens they are pursuing. You heard that correctly, a federal judge wants to grant de facto amnesty to those even the Obama administration wants to deport!
For the past decade, ICE has issued detainers on those suspected of being in the country illegally who have been arrested by local officials, but are about to be released. ICE asks local police to hold the individual for 48 hours if they have probable cause an individual is an illegal immigrant so they can apprehend any criminal alien without them being released into the population. Remember, in almost every case where an illegal is arrested, they were never apprehended for simply being an illegal alien. They have usually committed an additional crime. These are not your lovely housekeepers Democrats nostalgically speak of when stereotyping illegal immigrants.
On September 30, Judge John Lee of the Northern District of Illinois issued an order voiding out thousands of such detainers in Illinois, Indiana, Kentucky, Kansas, Missouri, and Wisconsin, the states where plaintiffs filed a class action suit. In a pattern of interpreting statutes in the most stringent manner for American sovereignty and in the most lenient manner for illegal aliens (in other cases they downright overturn statutes), Judge Lee asserted that ICE is required to obtain a warrant for every individual before issuing a post-release detainer unless they can verify that each individual suspected alien is a flight risk. This ruling will essentially take the policy of Cook County and the City of Chicago of “we will not enforce the law” and expand it to six states, ensuring that the Feds can’t enforce the law, even when local officials want to cooperate.
To begin with, the Obama administration has reduced the number of monthly detainers from nearly 30,000 in 2011 to under 10,000 since announcing the DAPA amnesty. That part of DAPA has not been halted by the courts, and this latest court ruling will likely void out most of the remaining detainers. Keep in mind, for the Obama administration to issue a detainer, that individual has to be a pretty nefarious character, given the fact that he has declined to deport even most criminal aliens.
As has been the case throughout the Obama administration, there is a bit of kabuki theater between the DOJ attorneys and the liberal judges. While the DOJ has to defend the laws and practices of the federal government, the Obama administration has not put up a rigorous defense for immigration enforcement, and that was evident in this case. As Judge Lee noted, the DOJ essentially agreed with the Soros-funded immigration groups that there is no ubiquitous flight risk among illegals. That is scandalous. By definition, illegal aliens with no documentation are the consummate flight risk, which is exactly why the relevant statute, 8 U.S.C. § 1357(a)(2), calls upon ICE to apprehend illegal aliens without a warrant when the suspected alien “is likely to escape before a warrant can be obtained for his arrest.”
For example, we know that 84 percent of family units from Central America that received a notice to appear before an immigration judge absconded and disappeared into the population before the final decision in 2014-2015, yet this judge feels that none of them can be detained. Among young illegal aliens who have crossed over in recent years, 90% failed to show up for their hearings, according to data from the House Judiciary Committee. The notion that illegals who have been arrested for crimes but never apprehended by the feds in the first place are not a flight risk is insane.
The consequences of this decision are devastating because it will codify sanctuary city policies into law everywhere, even where local law enforcement actually follows federal law. As CIS’s Jessica Vaughn reported, during a nine-month period in 2014 alone, local sanctuaries released 9,295 alien offenders ICE was seeking to deport. Of these illegals, 62% had significant prior criminal histories and 2,320 of them were subsequently rearrested for new crimes. There is no telling how many have committed crimes and were never caught. This is just a nine-month snapshot of the devastation from sanctuary policies. As of last year, 69% of them were still at large. So much for not being a flight risk.
While the lead plaintiff in this case was a U.S. citizen and obviously had standing to bring the suit against ICE, it is astounding that illegal aliens could piggyback on this lawsuit and secure a carte blanche order from a judge to suspend detainers in six states. In all cases of law enforcement actions, even pertaining to U.S. citizens, police operate based on probable cause. There are times that they make mistakes. In this case, the U.S. citizen, Jose Jimenez Moreno, can file a civil suit against the government if he wants to get revenge. But how do illegals get standing for relief when they are not even allowed to be in the country and how can a judge legislate immigration policy from the bench?
This is part of the disturbing trend of granting citizen rights to illegal aliens I warn about in Stolen Sovereignty. It has long been settled law that non-citizens have no right to stay in this country, nor are they entitled to a judge reviewing their case for remaining in the country. That understanding has been changed as we allowed liberal lawyers to violate that precedent in recent years. As Justice Robert Jackson, the famous Nuremberg prosecutor who was a champion of due process rights (he wrote the dissent in Korematsu v. United States, the Japanese internment case) and regarded as one of the greatest writers of his time wrote, “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.”
While all human beings obviously have a right to due process before being punished or indefinitely detained, a country acting to protect its sovereignty can apprehend any alien with the purpose of deporting them. They are not entitled to judicial review beyond an appearance before some administrative official to ensure the individual is indeed not a U.S. citizen. “As to such persons, the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law, ” wrote the court in 1892. That was a decision that Justice Felix Frankfurter regarded as “about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.
Yet, over the past number of years, the courts have overturned this settled law and have now made their supremacy over sovereignty its own form of “settled law,” a premise adopted, at least in part, by much of the conservative legal profession. This will not change with a Republican president. It will only get worse with an administration that is serious about enforcing our sovereignty because the illegal alien legal profession has the ability to use the lower courts to litigate every last deportation to death, even in the few instances where we get narrow victories at the Supreme Court.
This is why Judge Roy Moore’s fight against the usurpation of the federal judiciary is about more than marriage. The federal judiciary is crushing states from exercising the powers they’ve held since our founding with regards to defining marriage, (gender?!), proscribing methods and procedures for elections, protecting civil and religious liberty, and enforcing immigration laws. Yet, at the same time, the courts are defending the blue states that thwart federal immigration law, the one area where the feds legitimately have plenary power in order to protect the sovereignty of the entire union.
That Congress can just sit idly and watch lower courts — which are a complete creation of the legislative branch — grant citizen rights to dangerous illegal immigrants reflects the ultimate breakdown of our system of governance and is a gross violation of the social contract. (For more from the author of “Immigration Insanity: This Federal Judge Just Turned Six States Into Sanctuary States” please click HERE)