The Joy of Dikastocracy

Immigration policy is now set by judges, not the elected representatives of the people.

By Dan Cadman on October 7, 2019

Once upon a time, I took the U.S. Constitution at its word, particularly as outlined in the first three articles; to wit, that there are three co-equal branches of government (legislative, executive, and judicial) that exist in a kind of dynamic that permits each to act as a check on the excesses of the others.

In the past few years I've come to recognize that whatever the truth of that structure may have been at the nation's founding, it's no longer true. We still see the legislature and executive fighting and squabbling with one another over supremacy, each in turn being more supine or aggressive depending on its make-up, but it's the last and least likely branch of government, the judiciary — one that, ironically, relies on at least one other (the executive) to enforce its rules — that has come by stealth to reign supreme. Such a system of rule is variously called a "kritarchy", "kritocracy", or "dikastocracy", all terms derived from Greek to mean "rule by judges". The first reference has allegedly been coopted by white nationalists; whether that's true or not I don't know, but is a distraction in any case. The name is less significant than the phenomenon.

While this has been the trend for several decades, it seems (at least to me) to have sped up with quantum speed in very recent years. I can perhaps even pin a date on it: January 20, 2017. Since Donald Trump was sworn into the presidency, the number and pace of lawsuits to block his every move on immigration has escalated so as to be staggering. And even though his administration's track record of wins at the Supreme Court has been extremely high, the fact remains that a single unelected individual sitting in robes on a dais in any of the 94 district and territorial courts can effectively block any action whatever throughout the entire country for months — sometimes years — as the case winds its tortuous way through the district and circuit courts to arrive at the Supreme Court. The cost in time and effort is exorbitant, and the damage to the nation during the hiatus in which actions are enjoined is incalculable.

Let me give an example. Thrice in a matter of days, indeed, almost of hours, single U.S. District Court judges have slapped down national executive branch immigration policies through imposition of nationwide injunctions: once in Los Angeles when Judge Dolly Gee rejected the Department of Homeland Security's promulgation of regulations governing detention of alien minors (regulations that were specifically provided for in the original consent decree that Judge Gee purports to have been following); once in Washington, D.C., when Judge Ketanji Brown Jackson opined that the government "likely" violated the Administrative Procedure Act (APA) when it promulgated regulations governing expansion of expedited removal and therefore enjoined their enforcement (even though such expansion was envisioned and is specifically provided for in the statute itself); and again in Los Angeles when, in a staggering miscomprehension of the science behind transmission and retention of digitized fingerprints, Judge Andre Birotte decided that use of databases was an inadequate basis for filing immigration detainers by Immigration and Customs Enforcement (ICE) when seeking to take custody of criminal aliens.

These are just three of the most recent of dozens of actions going on at any point in time, and it is appalling how frequently judges seek to expand their reach beyond the district court boundaries where they preside in order to direct the nation's entire executive branch to do, or not to do, something where immigration is concerned. It is as if many of these judges see themselves as fulfilling their manifest destiny or the will of the gods to ensure that the progressive arc of history prevails, and the Constitution be damned.

It has gotten so bad that in one singular instance, after working its way through the appellate level to the Supreme Court, where the injunction in question was dissolved, the district court judge who originally issued that injunction re-issued it on remand. It is as if he felt the need to thumb his nose in derision at the upper echelon of his own judicial structure. In that particular case, the presiding Oakland, Calif., judge, Jon Tigar, asserted that he was doing so because the Trump administration's new rules limiting the reach and scope of asylum claims were going to have an adverse fiscal impact on the plaintiff nongovernmental organizations (NGOs). Yep, you've got that right: organizations that claim to be in the business of doing good rather than making money — and are probably all registered as nonprofit organizations with the IRS, to boot — filed suit among other things because the administration was going to make it harder for them to make money if would-be illegal border crossers were required to wait in Mexico to seek asylum rather than continuing to violate the law en masse.

This brings me to another point having to do with the outsized power exercised by the federal judiciary today, because of the lopsided interpretation of judicial "standing" to sue that prevails in the courts. NGOs suing to make up for theoretical lost revenue streams seems to me to be quite a stretch, but Judge Tigar went with it, one can surmise readily enough, because the new asylum rules didn't set well with his philosophical leanings and, well, who's to stop him if he finds a basis for standing? The same thing happened when various universities sued the administration for its travel ban, claiming that the new restrictions would inhibit their ability to accept foreign students from the countries included in the ban. Where is it written that universities have the right to accept foreign students at all? They don't. Their ability to accept any nonimmigrant students at all is dependent on receiving approval from the self-same federal government they were suing.

Likewise, when aliens sue the government for denial of this or that benefit. They argue that failure to give them that benefit is a tangible harm for which they must be made right. But what if the entire program itself is questionable or premised on extra-statutory "authorities" that don't exist, such as the DACA program? And what about the damage such a program does to our society, and the well-being of the body politic? Who has standing to file suit to preclude it from happening? Not you or me, even though it has a significant impact on our own lives, and certainly those of our progeny; as the rules of standing are now understood, we don't have (or should I say, aren't allowed to have) any skin in the game. And so we arrive at the untenable situation in which we find ourselves: that, although as citizens we have the most to gain — or lose — from decisions of national impact upon the future scope and direction of immigration, we are the ones whose voices get lost in the cacophony.

Meanwhile, judges who are unaccountable to anyone — perhaps even their own judicial superiors these days — get to make the rules, set the policies, and ride herd over an entire federal bureaucracy for which, in the end, they really aren't responsible, and can walk away from when it becomes inconvenient. It's a regrettable form of judicial dilettantism at best and, at worst, has so twisted the constitutional notion of coequal branches of government acting as checks and balances toward one another that some would say we're living in a dikastocracy: a nation ruled by judges.

Topics: Politics