Written By: Anton Sawyer
I’ve said it before and I’ll say it again, the Judicial Branch of the United States government is the most powerful of the three. No matter what was written in the US Constitution, no matter what laws have been passed at both local and federal levels, a judge can completely mutate what the original intent of the law was. As I wrote in the piece “The Supreme Court Rulings Untethering Police From The Law,” this century we have seen the Supreme Court ruling of Heien vs. North Carolina create a statute that says the police are not required to know the laws that they enforce, so long as they admit in court that they did not know the law itself. I cannot imagine the founding fathers thinking that law enforcement and law knowledge should be separated without the former knowing anything about the latter. Yet, this is now the reality because of a court ruling. During the summer of 2021, there have been two judicial rulings (one from a federal judge, the other from the SCOTUS) that are going to directly, and negatively, impact positive changes to the current border policies. I have a feeling that by the end you’ll agree that nothing can stop an out-of-control judiciary.
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A lot of what Biden has tried to do with his immigration program mirrored what former President Obama had done by focusing on felons and others who may be far more dangerous to society as a whole. The Biden administration guidelines unveiled in February 2021, the month after he took office, instructed agents to focus on immigrants deemed national security and public safety threats and those who entered the United States after Nov 1, 2020. This contrasts with the Trump policy of allowing US Immigration and Customs Enforcement (ICE) agents to pursue low-level offenders and non-criminals, as well as people with long ties to the United States. After Biden’s plan was implemented, the GOP immediately went to the mats by challenging this in a court of law. In August 2021, U.S. District Judge Drew Tipton, in Corpus Christi, Texas, ruled that the February guidance from the US Immigration and Customs Enforcement agency violated a federal law requiring that the government "shall detain" people who commit certain crimes or are otherwise deemed eligible for deportation. "Put simply, the Government has instructed federal officials that 'shall detain' certain aliens means 'may detain' when it unambiguously means must detain," Tipton wrote. As we have seen many times before when it comes to numbers and reality, the certainty of the conservative viewpoint often doesn’t jive with the cold, hard analytics.
Contrary to what every single conservative has said about the border being completely open under the Biden administration, the numbers from the August 2021 report from US Customs and Border Protection tell a much different story.
The Border Patrol made about 200,000 arrests at the southern border in July, marking the busiest month at the border in 21 years and a 12% increase over the previous month. These numbers also mark the highest monthly total in two decades. An interesting statistic from the report shows that these 200,000 arrests far surpass the peak during the last major wave of migration at the US-Mexico border, which occurred in May 2019. That last sentence is key. Every conservative news pundit has railed about how the numbers of people trying to illegally cross the border under the Trump administration was incredibly low because he was so tough on immigration. If that’s true, why did a then-record of immigrants show up at the border under Trump—especially given that the GOP has stated on many occasions that Trump is the toughest president ever in terms of border security? Sean Hannity, Buck Sexton, Glenn Beck have all said the reason why so many people are showing up at the border in 2021 is that Biden will let ANYONE in. Wouldn’t that logic hold true for Trump? That the illegal immigrants trying to cross the border under his administration knew there was so much ineptitude by the President and his cabinet that they thought they could cross with minimal concern—especially given the failure of his wall completion?
Given that Biden is trying to model his immigration policies under former President Obama, were those policies effective at all? Obama was never one to talk about “cleaning up the country” by announcing mass deportations in the media. Trump was more than happy to talk about everyone he was going to arrest and deport. It appears the facts indicate there is some truth to the saying “speak softly and carry a big stick.”
Pew Research released a 2020 report illustrating some interesting facts about the Trump-era immigration policies. The number of interior arrests made by ICE (known as “administrative arrests”) rose 30% in fiscal 2017 after Trump signed an executive order giving the agency broader authority to detain unauthorized immigrants, including those without criminal records. They went up again in fiscal 2018 but decreased in fiscal 2019. It’s when you look at the specific data behind those numbers and compare them to those of the Obama administration that you get a full picture of how epically Trump’s immigration policy failed in removing those from within our borders. Per the Department of Homeland Security (DHS), since 2000 the peak of illegal immigrant removals from within the United States borders happened during the Obama administration in 2013 at 432,281. During Trump’s tenure, he peaked in 2018 with 337,287—a full 100,000 less than his predecessor. In 2020 those numbers further dropped for Trump to 185,884. These numbers are painting a pretty clear picture. So if there is continued success of the Obama/Biden program, why dismantle certain parts (if not the whole thing)? Did someone say “activist judges?”
It makes my blood boil whenever I hear a republican talk about activist judges. They carry this holier-than-thou attitude in which only a democrat could ever have someone in a judge’s chair with a political motivation. The GOP always uses their “law and order” shield as a form of deflection. That because they support all law enforcement, they support all the laws, along with the judicial process as a whole, there’s no way they would try to stack the deck out of respect for our institutions. Both sides try to stack the deck. Both sides are guilty. Keeping this in mind and adding the fact that the conservative party is so adamant about border security, there was another judicial decision in August that makes it hard to not shake your head in confusion.
Because the Supreme Court's 6-3 conservative majority includes three justices appointed by Trump, it shouldn’t be surprising that they decided to directly damage the Biden immigration policy heavily. This damage was accomplished when they issued an order that the “Remain In Mexico” policy, formally known as the Migrant Protection Protocols (MPP), be reinstated. During Trump’s presidency, the policy required tens of thousands of migrants seeking asylum in the US to turn back to Mexico. Biden, like Obama, wanted to focus on felons and dangerous criminals, so he killed the program and allowed immigrants to be in the US during the asylum process. Though this ruling was kind of expected due to the political nature of the Supreme Court, it was the response by DHS that did add an element of surprise to this situation. They said in a statement it regretted the Supreme Court's decision and would continue to "vigorously challenge" the district court ruling. As the appeals process continues, it said, the agency will comply with the order "in good faith" and has begun discussions with Mexico.
I know that the border crisis, and immigration in general, is an incredibly complex system. I don’t pretend to know every little nuance when it comes to how things may, or may not, be able to play out. With the absurd levels of bureaucracy in the American government, I don’t know what can realistically be done. The one thing that I do know is how to count and read numbers. I also know what it looks like when a judge (or judges) are more concerned with their political allegiances than looking at any actual statistical analysis.
There is one question I do want to leave you with: When an organization like DHS, which deals directly with the border situation, says that the judiciary has made a bad choice that will negatively impact the country as a whole … maybe they should be listened to instead of someone on the TV or radio?
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