On the Importance of Judicial Self-Restraint

By Dan Cadman on November 21, 2018

President Trump's immigration emergency declaration (which also involved a modification in the rules for seeking asylum, to require applicants to do so at an official port of entry) has taken a hit via a restraining order from an activist judge sitting in San Francisco, more than 500 miles from the U.S. border with Mexico.

The judge won't be anywhere around to see the tumultuous rush to illegally cross the border in and around Tijuana, which is the inevitable effect of his injunction, since he is essentially giving his blessing to aliens who bust the border to go ahead and do it, and then ask for asylum anyway. (My colleague Andrew Arthur has written a couple of excellent blog posts that speak to the egregiousness of this issue, here and here.)

But it once again points out the fallacy of a judicial system that is tilted heavily in favor of aliens and their advocates where the matter of "standing" is concerned. It also shows how a single misinformed or philosophically inclined judge can frustrate the rule of law because, even if his decision is ultimately overturned after months of litigation through the higher courts, in the meantime he's knocked over the fragile edifice of immigration enforcement and compliance by judicially declaring an "olley olley in come free" and those who break the law are rewarded by having done so.

The decision by this judge is only one of many examples. Another example has to do with lower courts meddling in the Trump administration's decision to end the extra-statutory DACA program. That program was initiated as a so-called "act of prosecutorial discretion" by the Obama administration, even though it stood the notion of "discretion" on its head by making enforcement the exception rather than the rule for a class of hundreds of thousands of aliens illegally in the U.S., aliens who were "brought through no fault of their own" and "are Americans in all but name", as the advocacy sales pitch put it.

Using legal logic only a contortionist could love, a court found that the Trump administration could not use its discretion to end a program that the Obama administration initiated in its discretion. It also held that the Trump administration had not fully complied with the Administrative Procedure Act in the way that it decided to end the program, which is the ultimate hilarity since the Obama administration violated the Administrative Procedure Act when it commenced DACA.

What astounds me most is that these decisions issued by out-of-touch judges with lifetime appointments often have serious adverse consequences in the real world. Take, for instance, the case of Luis Cobos-Cenobio, a recipient of DACA. Cobos-Cenobio was pulled over in a routine traffic stop in Arkansas and promptly pulled out a pistol and shot at the sheriff's deputy at near point-blank range.

A dashcam video shows the shocking incident. The Washington Times published the video, along with an article that outlines everything wrong with DACA. Cobos-Cenobio should never have been allowed to stay in the U.S., and his repeated, prior brushes with the law should have been a warning of bad things to come. But thanks to the skewed priorities of the Obama administration, he was left alone, apparently leading to the belief that he was above the law.

Yes, I know that DACA advocates will say he is only one case. But heaven knows that he's just one of many misfits and criminals who managed to worm their way into a program that should never have existed to begin with – a program whose mythology never reflected the reality of its recipients (see, e.g., here and here).

This leads us back to the two central questions: 1) What right does a single judge have to substitute his views over those of the president of the United States where implementation of immigration policy is concerned? And 2) What good does it do if he (or she) is ultimately reversed if the reversal can't undo the harm that was wrought by the injunction in the first place?

These are questions that every district court judge, every circuit court, and the Supreme Court justices need to be asking themselves, because increasingly there is a belief among ordinary citizens that the judiciary is an out-of-control branch of government responsible to no one but itself. Considering that the only true power that the courts have is that of compliance based on trust in their impartiality, this could in the end be the undoing of our belief in the American judicial system. I can think of no better argument in favor of judicial self-restraint.

Topics: Asylum