Immigration Reform and Its Legal Battles

Nearly three decades ago, Congress made a critical decision regarding immigration, realizing that litigation alone would not resolve the ongoing crisis. As a result of the Illegal Immigration Reform and Immigrant Responsibility Act, a bipartisan coalition established a process for expedited deportation for individuals who can’t demonstrate continuous physical presence in the U.S. for two years. In a bid to prevent a surge of defense attorneys challenging the government over proof of stay, Congress also removed the federal courts’ power to review these expedited removal orders.

Fast forward thirty years, there’s been minimal enforcement of these laws. Recently, federal judges have started examining cases that traditionally fall outside their jurisdiction. This development has emerged as a way to counter President Trump’s push for nationwide expedited expulsions.

Legal Challenges

On November 22, the U.S. Court of Appeals for the D.C. Circuit denied a request from the Department of Justice to stay a case titled Make the Road New York v. Noem. This lawsuit questions Trump’s policy, which would allow expedited deportations for undocumented immigrants apprehended anywhere in the country unless they can prove they’ve continuously resided in the U.S. for the last two years. Historically, the application of expedited deportations has been limited, primarily to those caught at or near the borders.

Despite the clear legal boundaries, a district judge stepped in, issuing an injunction against many uses of expedited removal. This petition paved the way for the recent order from the D.C. Circuit, and it illustrates a worrying trend of judicial overreach that Congress had sought to restrict.

Supreme Court Rulings

The Supreme Court recently backed the government’s use of the Alien Enemy Act to hasten the removal of foreign gang members. While this ruling is significant, it doesn’t entirely address the broader immigration issue. The majority of undocumented immigrants don’t fall under the “enemy combatant” designation. If non-gang members flood into the country and exhaust various processes, it could truly overwhelm immigration enforcement.

At the core of this controversy is the absence of due process. The law explicitly permits expedited removal throughout the nation, yet it also clearly prohibits federal courts from providing any “declaratory, injunctive, or other equitable relief” for actions that challenge expedited removal orders.

The only loophole is for aliens who can prove a lawful right to remain, such as through asylum claims. Even in those cases, Congress imposed a strict 60-day limit for filing claims, which the plaintiffs in this case missed.

This rejection of due process doesn’t legitimize enforcement actions. It represents a significant violation of the law. Courts are overlooking measures that allow expedited removals while ignoring congressional laws that strip their jurisdiction. Congress foresaw this and enacted restrictions.

Congress’s Role

Congress holds ultimate authority over immigration and has full control over the jurisdiction and structure of federal courts, with specific case decisions being the sole exception. Justice Clarence Thomas articulated: Patchick vs. Zinke “When Congress deprives federal courts of their jurisdiction, it exercises valid legislative power, just as it does when it collects taxes or declares war.”

When judges take on all political questions and redefine their own powers, it fundamentally disrupts the separation of powers. It’s essential for the executive to defend both its authority and Congress’s ability to restrict judicial powers.

Proposed Changes

There have been calls for sweeping legislation to limit courts’ jurisdiction over deportations. However, these efforts would be futile if judges can simply deem such statutes unconstitutional. If the government feels compelled to overstep judicial authority, this cycle of judicial supremacy is likely to continue.

We recently saw this dynamic play out when a federal judge ruled that ICE cannot arrest undocumented immigrants solely for being in the country illegally unless they present a warrant or are deemed a specific flight risk. This ruling contradicts longstanding law. In another case, California Judge Sunshine Suzanne Sykes certified a class to offer relief to immigrants who have entered the U.S. without testing or were not initially detained upon crossing the border.

A situation where judicial orders persist even against congressional jurisdiction would effectively grant judges a permanent veto over immigration enforcement. It won’t cease until the executive branch stands firm and says no.