Judges Are Thwarting Biden’s Agenda at the Border

August 26, 2021

By Brian Lonergan

In case you haven’t noticed already, this has not been America’s finest year. With the Afghanistan debacle, the Biden administration has now given us a 21^st century Saigon moment. Our southern border resembles the lawless no man’s land of The Road Warrior. Overall, America’s descent under Biden has made Jimmy Carter’s malaise days look like the Era of Good Feelings by comparison.

Even against this bleak landscape there is reason for hope, like tiny leaves of vegetation sprouting forth in a sun-scorched desert terrain. Hope has a funny way of emerging in the most unlikely of places, and so it is here. The biggest obstacle to Biden’s war on our borders has come not from the mostly feckless members of Congress, but from the judges in our federal courts.

This is irony on steroids, as far-left immigration legal groups used the courts to get injunctions against virtually every move by Donald Trump to secure our borders and control our runaway immigration system. It seemed that our judiciary had been co-opted, like so many of our other institutions, to do the bidding of permanent Washington rather than the American people.

Yet since January, the courts have served to block a number of Biden initiatives on immigration. Most recently the administration took the biggest uppercut to the jaw yet from the judiciary: the Supreme Court’s 6-3 ruling to decline the administration’s request to suspend resumption of the wait in Mexico policy implemented by Donald Trump. In the far-left, anti-borders world, being told by the High Court to revert back to a Trump-era immigration policy is a grievous insult that will no doubt re-ignite calls to pack the Court as retribution.   

The case came to the Supreme Court when a Texas federal district court this month ordered the resumption of the policy, part of the Migrant Protection Protocols (MPP), of returning asylum seekers to Mexico to wait for their asylum hearings in that country, rather than in the United States.

When the government appealed the decision, Biden suffered another ignominious defeat as the Fifth Circuit Court of Appeals refused to stay the Texas court’s decision while the government appealed the granting of the injunction.

Another awkward decision for Biden was a preliminary injunction against Biden’s 100-day moratorium on deporting aliens subject to final orders of removal; the Supreme Court ruling against certain aliens seeking to have their orders of removal cancelled; and the Supreme Court refusing to allow criminal aliens to stay in the United States following their unlawful reentry after their prior deportation for criminal conduct.

What is going on here? While Biden has thus far been able to rely on his water-carriers in the media to sell his immigration agenda to the public, the courts of law are a different playing field entirely. There, his emotion-based appeals do him little good when they are held up to scrutiny. In the Texas case, the administration lawyers did not even address why they wanted to rescind a policy that was undeniably effective. For that reason, among others, the judge ruled Biden’s actions to be arbitrary and capricious.

Despite the Left’s demonization of all things Trump, the reality is that MPP was good for this country. It prevented the release of tens of thousands of aliens into the country, the overwhelming majority of whom file completely meritless asylum claims and/or have no intention of showing up to a hearing down the road on the asylum claim. It spared states from the astronomical costs that this influx has on their finite resources. Only an ideology that cares little for the well-being of this country and its citizens could be against such a policy.  

The radical agenda-driven policies of this administration are also starting to impede on each other. In the MPP ruling, the judge stated that asylum seekers would have to remain in Mexico until the Biden administration has the ability to detain them here. Why wouldn’t the administration have the ability to detain them here? Maybe because they decided to wreck the stable border situation they inherited and fill our detention centers to overflow with foreign nationals that Biden encouraged to “surge the border” last fall.

Instead of moderating to policies that actually serve the interest of this country, the Biden administration and its hangers-on instead declare war on the judiciary with threats to pack the Supreme Court until it is a reliable, hyper-partisan rubber stamp for their agenda. If that happens, we will become a constitutional republic in name only. Our nation is on the verge of fracture. Our system of checks and balances is one of the few remaining things holding it together. It is a hill worth dying on that we must defend.

Brian Lonergan is director of communications at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at: Brian Lonergan, Judges Are Thwarting Biden’s Agenda at the Border, American Greatness, August 26, 2021.