Nearly 30 years ago, Congress recognized that the country could not litigate its way out of an immigration crisis.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act, bipartisan majorities created expedited removal for anyone who failed to prove two years of physical presence in the United States. Anticipating a cottage industry of defense attorneys forcing the government to prove duration of unlawful stay, Congress also stripped federal courts of jurisdiction to review expedited removal orders.
At some point, the executive must defend not only its own authority but Congress’ authority to restrain the courts.
Three decades passed with little enforcement. Now, after that long dormancy, federal judges have begun reviewing cases they have no statutory authority to hear and are attempting to block President Trump from using expedited removal nationwide.
Over the line
On November 22, the U.S. Court of Appeals for the D.C. Circuit refused the Justice Department’s request for a stay in Make the Road New York v. Noem. The case challenges Trump’s policy expanding expedited removal to illegal aliens apprehended anywhere in the country, provided they cannot prove two years of continuous presence. Administrations since the 1990s ignored the statute and limited expedited removal to aliens caught at or near the border.
A district judge, despite clear statutory limits, reviewed the case and issued an injunction against most uses of expedited removal. That move set the stage for this week’s order from the D.C. Circuit — another step in a long pattern of courts seizing authority Congress explicitly withheld.
A watershed moment
The Supreme Court recently upheld the administration’s use of the Alien Enemies Act to quickly remove alien gang members. That ruling helped, but it cannot resolve the broader problem: Most illegal entrants do not fall into the “enemy combatant” category. If every non-gang-member can exhaust layer after layer of due process after invading our country, immigration enforcement collapses under its own weight.
But the central issue in this dispute is not due process at all. The decisive point is that IRAIRA explicitly authorizes expedited removal anywhere in the country and explicitly bars the federal courts from issuing “declaratory, injunctive, or other equitable relief” in any action challenging an expedited removal order.
The lone exception applies to aliens who can prove, by a preponderance of the evidence, that they possess a lawful right to remain — such as a granted asylum application. Even then, Congress set a firm 60-day window to bring such a claim. The plaintiffs in this case missed that deadline.
This challenge does not implicate the validity of an executive action. It represents a double violation of statute: courts ignoring the law that authorizes expedited removal and ignoring the law that strips them of jurisdiction to review it. Congress anticipated this exact scenario and barred it.
What Congress must do
Congress holds plenary authority over immigration and total authority over the structure and jurisdiction of federal courts. Only adjudication of a specific case lies beyond congressional reach. As Justice Clarence Thomas wrote in Patchak v. Zinke, “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”
If judges can decide every political question, define the scope of their own power, override Congress’ limits, and bind the executive even when Congress lawfully precludes them from hearing a case, the separation of powers collapses. At some point, the executive must defend not only its own authority but Congress’ authority to restrain the courts.
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Just say ‘no’
Many of us have called for broader statutes stripping courts of jurisdiction over deportation. But that effort means nothing if judges can simply declare those statutes unconstitutional. Judicial supremacism has no end when the executive enforces judicial usurpation against itself.
That dynamic played out again last week. A federal judge ruled that ICE may not arrest illegal aliens solely for being in the country unlawfully unless agents obtain a warrant or prove a specific flight risk — an order that contradicts decades of law. In another case, Judge Sunshine Suzanne Sykes in California certified a class granting relief to migrants who “have entered or will enter the United States without inspection” as well as those not initially detained after crossing the border.
A government that treats judicial decrees as binding even when Congress denies jurisdiction invites a permanent veto from judges over immigration enforcement. It won’t stop until the president simply says no.
