RUTHFULLY YOURS

‘I guess I’m just wondering why that’s our problem.”

Chief Justice John Roberts was asking why the catastrophe at the southern border, which is clearly the nation’s problem, should be the Supreme Court’s problem. The catastrophe results from the hash the political branches have made of things. Since they caused the problem, and they alone have the wherewithal — if not the will — to address it, Roberts was grousing about the problem’s arrival at the doorstep of the judiciary, the branch least equipped to solve it.

But isn’t that always the way it is with a catastrophe? There are many good questions about how we got into this fine mess. What eludes us is how we get out of it.

The occasion for the chief justice’s musings was oral argument this week in Biden v. Texas. In its mulish determination to cancel all Trump policies, for no better reason than that they were Trump policies and regardless of how beneficial they were, the Biden administration has endeavored to undo “Remain in Mexico.”

That is the popular name for what is formally known as the “Migrant Protection Protocols.” These comprise a procedure, worked out after tough negotiations with the Mexican government, whereby aliens seeking to enter the United States without authorization are permitted to remain in Mexico while awaiting their hearings.

The illegal aliens at issue, who are now arriving at our border at a breathtaking, sovereignty-destroying rate of over 200,000 per month (221,000 last month), are overwhelmingly excludable. That is, they should be instantly turned away because they have no legal right to enter and no realistic basis to claim asylum. Nonetheless, our law allows even obviously meritless asylum claims to be made by illegal aliens (whom we’re now supposed to call “migrants” based on the nonsensical progressive trope that “no human being is illegal”). Something, therefore, must be done with the “migrants” while they await hearings on their frivolous claims — and those hearings are taking ever longer to schedule because the numbers arriving are ever more daunting, overwhelming the government’s finite resources — which is why what Roberts euphemistically refers to as a “problem” looks more like an invasion (although it is not referred to as such because our betters abide such leaps of language only for insurrection).

Policy-wise, Remain in Mexico has been a home run. It keeps out people who are not entitled to be in the U.S., thus incentivizing use of legal immigration processes. It discourages people in South and Central America (among other places) from making the dangerous trek to our border, since the risk is not worth bearing if there is no realistic expectation of admission. Consequently, the procedure relieves our government of the prohibitively costly burden of detaining and expelling illegal immigrants, or, worse, of dealing with the significant downsides of discharging an ever more massive illegal-alien population into the United States.

This all makes too much sense for the What-Can-We-Wreck-Next? administration, so of course Remain in Mexico has to go. To be clear, the Center for Immigration Studies estimates that there were 11.35 million illegal aliens in our country at the start of this year, which marked an increase of 1.13 million in just the first eleven months of President Biden’s term in office. Since then, in less than half a year, a staggering 1.06 million additional illegal aliens have been “encountered” at the southern border — encounter is the Alice in Wonderland word that Department of Homeland “Security” officials use because they’d rather not tell you they don’t apprehend the aliens; after encountering them, they release the vast majority of them. For example, of these latest 1.06 million encountered, DHS has released . . . wait for it . . . 836,000 illegal aliens into our country. Just since January. To add to the good news, I must remind you that roughly 30 percent of “migrants” who cross into our country are not “encountered” by border agents at all. That is, as otherworldly as they are, these monthly statistics significantly understate the aforementioned “problem.”

To give President Biden and DHS secretary Alejandro Mayorkas their, um, due, this is not the fallout of mere incompetence. I can’t put it better than NR’s Michael Brendan Dougherty did earlier this week:

Democrats create a zone of lawlessness, predation, and danger for illegal immigrants by setting up policy and enforcement of immigration law to encourage illegal crossings. They do so because they think immigration itself is good, that it changes the nature and composition of American society in ways that they approve.

Consequently, when we are called on to address the unsustainable influx of illegal immigrants that has rendered our southern border illusory, we must constantly remind ourselves that one side of the discussion does not see this as a “problem” at all. Far from a bug, it is the defining feature in a quest for social transformation. The Biden administration is not trying to solve massive illegal immigration and the eradication of our border. It is willfully promoting massive illegal immigration and sees a porous border as the fastest means to that end — but it will continue to temporize and pretend to regard the situation as a “problem” because that enables its media allies to report that Biden officials are taking concrete remedial measures, which convinces the gullible that they are really trying their best.

The Supreme Court is not unaware of this charade. Yet the justices realize that the growing catastrophe was caused by the political branches, which have plenary authority over border security, the policing of illegal immigration, and the conduct of foreign relations. As a practical matter, the Court has no power over these aspects of governance, which are the only ones that matter here. As Roberts observed, the Court’s job is to say what the law is. It has no power to make the branches of government that enact the laws (the legislature) and are sworn to enforce the laws faithfully (the executive) do their jobs.

On the border catastrophe, Congress is AWOL, and the president is the catalyst of chaos.

Let’s say the Court does its job and says what the law is. How would that help? As Justice Clarence Thomas pointed out, Congress has been crystal clear about what the law is. On that score, I’ll repeat, yet again, what I’ve related before:

The governing congressional statute commands that aliens who do not have a legal right to be present in the United States “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed” (emphasis added).

The Biden administration has no authority to release illegal aliens into the United States. It is not an answer to say, as Justice Sonia Sotomayor and other progressives say, that Congress has failed to provide enough resources for detention space, or that Congress should be deemed to have recanted its detention directive because lawmakers know presidential administrations have claimed discretion to parole illegal immigrants into the country yet have done nothing to stop it. The Court does not deduce massive changes in the law by implication or congressional inaction; where the Constitution vests Congress with legislative authority, as it has on immigration, the law is what Congress says it is, not what willful executives fabricate on the fly.

If the number of unauthorized aliens trying to get into the country outstrips the detention space we have to accommodate them, the answer is to close the border to those who cannot be detained, not to violate federal law by releasing them into the country. On what planet is it logical to assert that the aggressive lawlessness of aliens who have no right to enter our country justifies the president — who, again, is sworn to uphold our laws and secure our border — to make a mockery of federal law by admitting them?

The Biden administration attempts to throw sand in our eyes by countering with two provisions that, in fact, do not contradict the clear detention mandate.

The provision emphasized by Solicitor General Elizabeth Prelogar says that if an alien tries to enter by land from a country contiguous to the U.S. (i.e., Canada or Mexico), DHS “may return” the alien to that contiguous country to await a hearing. To the administration, Congress’s invocation of may (as opposed to shall) was meant to endow the administration with discretion to — well, basically, to do whatever the hell it wants.

But that’s not what the provision says, and, in any event, the applicable provisions are easy to harmonize. If an alien tries to enter from Mexico, DHS may let the alien wait in Mexico for a hearing; but if DHS instead allows the alien to wait in the United States, then the alien shall be detained while the hearing is pending. Nothing in Congress’s use of the word may gives the president discretion to allow the alien into the country at liberty. Doing so is egregiously lawless under circumstances where the president well knows a high percentage of the aliens will never show up for their hearings.

Next is the narrow exception that Biden would have the Court interpret as swallowing the detention provision whole: DHS may temporarily parole illegal aliens into the country, on a case-by-case basis, if the admission of the alien would provide a “significant public benefit” to the United States.

It’s another red herring. To begin with, the administration is not discharging aliens into the country on a case-by-case basis; it has treated the narrow exception as license to admit well over a million aliens — those, it says, do not have “serious” criminal records (with serious in the eye of the beholder, and under circumstances where we often cannot trust the criminal-justice recordkeeping of the relevant countries). The president has no statutory or constitutional authority to immunize over a million aliens from Congress’s directive that they shall be detained.

But leave that aside because it doesn’t even scratch the Orwellian surface here. Wanna guess what Biden claims the “significant public benefit” is? Better sit down for this one: By being “not too dangerous” (as Justice Brett Kavanaugh put it in trying to grasp the administration’s argument), the public benefit these illegal aliens provide when we let them roam the country with impunity is that it frees up the detention space they’d otherwise take up for aliens who are more dangerous.

Got it? According to Biden officials, enforcing the law at the border is not an option — presumably because they would never be invited to Democratic Party confabs again. Ergo, it somehow benefits the public to admit millions of alien lawbreakers into the country — under circumstances where doing so powerfully incentivizes more illegal aliens to come, and where Democrats insist on providing illegal aliens with scarce public-health, welfare, and education resources, which must be paid for by Americans. Why? Because releasing people whose first act in our country is to violate our laws enables DHS to detain the really bad ones.

In reality, though, they’re not detaining the really bad ones — not more than a relative handful of them. At the current numbers, the administration couldn’t detain the really bad ones if it wanted to. In total, there is space to detain fewer than 34,000 aliens, and DHS is now “encountering” (as the administration gently puts it) more than five times that number every month. Despite that impossible math, the Biden administration has proposed cutting the detention-space capacity to 30,000.

At this week’s hearing, Justice Amy Coney Barrett observed that if the Court agrees with the Biden administration on the meaning of “significant public benefit,” then the states challenging Biden’s elimination of the Remain in Mexico policy must lose. I would counter that anyone who looked at Biden’s catastrophic policy and discerned a “significant public benefit” ought to be tested for LSD consumption — or, perhaps, for a Homeland Security position in the Biden administration. But the justices are plainly groping for an escape hatch. This isn’t their problem, and they don’t want their fingerprints on it.

And they have their out if they want it. Remain in Mexico only works if the government can maintain a diplomatic agreement with the Mexican government. That’s international politics, not American law. The Court has no authority to force the Biden administration to negotiate with Mexico, quite apart from its being impotent to make Mexico do anything whatsoever.

Let’s return, then, to an exasperated Chief Justice Roberts’s invocation of Chief Justice John Marshall’s timeless assertion that “it is emphatically the duty of the Judicial Department to say what the law is.” The best we can hope for is that the Court will shake off its apparent diffidence, and say what the law is: By statute, illegal aliens shall be detained when apprehended — um, I’m sorry, encountered — at the border. But I’d expect the justices to caveat that it’s hard for the president to enforce the laws if Congress fails to give executive agencies sufficient resources . . . and avert their eyes from the cold reality that the resources are insufficient because the president and his party have made the “problem” geometrically worse.

In the final analysis, what difference would it make for the Court to say what the law is? Congress couldn’t have been clearer that the law requires detention. How’s that workin’ out?