If you were to guess the most critical problem faced by President Trump in dealing with the flood of illegal immigration at our southern border, what would it be? Foreign government-sponsored migration caravans? Funding for the border wall? A shortage of border patrol agents? Indeed, these all are aspects of the serious problems Trump is encountering in addressing the ongoing crisis at our southern border; but they fail to get to the heart of the problem the president faces in taking steps to solve the crisis.
In a word, judges are the main obstacle standing between the president and his ability to seriously address the border crisis. Federal judges.
Interestingly, our founding fathers warned of this very problem more than two centuries ago. “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government,” Thomas Jefferson wrote in 1823. “Experience however soon shewed in what way they were to become the most dangerous.”
Jefferson’s comments reflect what many of our founders feared; that while the the powers of the republic were vested in three co-ordinate (not “co-equal”) branches, each acting as a check on the others, the furtive creep of judicial power over the years would lead to an imbalance in power, inviting a tyranny of the judiciary. This is exactly where we find ourselves today, 230 years after the Constitution was ratified.
Article III of the Constitution outlines specific and limited responsibilities for the federal judiciary; but it was not until the 1803 Supreme Court case Marbury v. Madison, that the concept of judicial review of the nation’s laws took hold. Judicial review is an entirely appropriate and essential function of the Courts, but it was not intended — and in fact was feared — that such powers might eventually grow so that every decision or move by the president or Congress be reviewed and possibly vetoed by unelected judges.
This is exactly what is happening in the quagmire that has become illegal immigration flooding our southern border, wherein every policy decision by Trump to stem or slow the tide is subject to the whims of some liberal judge on a federal bench, armed and ready with national injunctions to thwart his every move. While the administration is able to appeal these decisions, such remedy consumes many weeks if not months; during which time appropriated funds lie fallow and federal workers are stymied in their ability to implement policy directives from the White House. Just this week, a judge from the 9th Circuit in California issued a preliminary injunction blocking the administration’s “Remain in Mexico” policy for asylum seekers.
By Former Rep. Bob Barr for THE DAILY CALLER
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