If Donald Trump put on a black robe tomorrow and issued an opinion in an intellectual property dispute between two tech companies, no one would treat it as binding law. So why are we expected to treat judicial policymaking on immigration and national security as untouchable — especially when lower courts now openly defy higher courts?
One of the most damaging misconceptions in American government holds that the Supreme Court is “supreme” over the political branches in all things. At most, its supremacy runs within the judicial hierarchy: It can overrule lower federal courts. The same goes for the courts of appeals, which are supposed to bind district courts within their circuits.
If lower courts refuse deference to their judicial bosses, why should the president keep extending deference to either level when the law is on his side?
That system, however, increasingly operates as a one-way ratchet for left-wing political outcomes.
On February 6, the Fifth Circuit Court of Appeals finally reaffirmed a basic legal principle: Illegal aliens seeking admission are not entitled to enter the country, demand release, and then litigate their way into residency while living freely inside the United States. The court upheld long-standing precedent and the plain text of U.S. immigration law, which requires detention of inadmissible aliens pending disposition of their cases.
Congress enacted that provision in 1996 for an obvious reason: to prevent people from entering illegally, receiving a notice to appear, and then disappearing into the interior.
Unlike American criminals who are entitled to bond hearings, illegal aliens are not being prosecuted for a crime. They can always voluntarily depart and live freely in their home countries. Being detained is a consequence of their initial invasion and their desire to litigate their way into our country.
Then came the district courts.
Just three days after the Fifth Circuit’s ruling, Judge Kathleen Cardone, an El Paso-based George W. Bush appointee, ordered the release of aliens in five cases on the theory that they had “established roots” in the United States. What, then, was the point of the Fifth Circuit ruling? Cardone claimed in one case that it “has no bearing on this Court’s determination of whether [the petitioner] is being detained in violation of his constitutional right to procedural due process.”
Likewise, on February 9, Judge David Briones, an El Paso-based Clinton appointee, reached a similar conclusion. “The Court reiterates its original holding that noncitizens who have ‘established connections’ in the United States by virtue of living in the country for a substantial period acquire a liberty interest in being free from government detention without due process of law,” Briones wrote — about an illegal alien who entered the country in 2024.
Pause there.
The Fifth Circuit had just ruled that detention is mandated by statute even in cases involving aliens who entered long ago (including plaintiffs from 2001 and 2009). Yet a district judge somehow concluded that ruling does not apply to someone who crossed illegally in 2024. Worse, how can a district judge claim the Fifth Circuit did not account for the “constitutional” question when the appeals court’s ruling necessarily presumes ICE’s conduct is constitutional?
RELATED: The Fifth Circuit cracks down on the asylum excuse factory
ozgurdonmaz via iStock/Getty Images
These judges are cherry-picking language from select Supreme Court opinions about aliens with “established ties” while ignoring the far stronger body of law recognizing that illegal entrants have no right to remain in the country against the national will. The idea that someone can break into the country, evade enforcement long enough to create “ties,” and then use that evasion as a legal shield makes a mockery of popular sovereignty and of the Declaration’s first principles.
This also demonstrates, again, why the Trump administration cannot comply its way out of judicial supremacism. Even when it wins in higher courts, lower-court judges can repackage the same result in a new case and keep obstructing enforcement. Why should Trump defer reflexively to congressionally created judges who refuse to defer even to their own superiors within the judiciary?
That point came into focus in Ninth Circuit Judge Lawrence VanDyke’s dissent from his court’s decision to halt the deportation of a Peruvian family while the appeal proceeds. Referring to the Ninth Circuit as a “wackadoo” court, VanDyke described what he said has become an automatic practice: granting stays of removal even when Supreme Court immigration precedent clearly points the other way.
In effect, he argued, the court uses procedural orders and an ever-expanding shadow docket to nullify precedent without formally issuing rulings that openly defy it.
Because of the circuit’s heavy caseload, VanDyke wrote, judges adopted a “convenient, but unwritten, practice” of granting preliminary relief in the form of administrative stays pending review. Those stays often remain in place until the merits are decided. The result, he said, is a system that “disregard[s] Supreme Court precedent and award[s] automatic, extended stays of removal in utterly meritless immigration appeals.”
Defenders of the Ninth Circuit might say the court is overloaded and must rely on lengthy interim stays. VanDyke’s point, however, is that this indulgence appears uniquely generous in deportation cases. As he put it, the Ninth Circuit’s internal dialogue sounds like “a judicial Oprah Winfrey, confused by her own popularity.”
His satirical version of the court’s approach was devastating:
We are… (“You get a stay!”)… sincerely shocked… (“You get a stay!”)… by the… (“You get a stay!”)… number of… (“You get a stay!”)… utterly… (“You get a stay!”)… meritless… (“You get a stay!”)… immigration petitions… (“You get a stay! And you get a stay! And you get a stay!”)… that are filed… (“You get a stay!”)… in our court. (“Everyone gets a stay!”).
That is the point. When it comes to many liberal judges — who still dominate too many panels — law is often just a vehicle for politics. They will reach the result they want by whatever procedural route is available. You cannot simply “out-appeal” a judiciary willing to ignore controlling law while pretending not to.
RELATED: We escaped King George. Why do we bow to King Judge?
Valerii Evlakhov via iStock/Getty Images
A Politico review of thousands of ICE detention cases found that at least 360 judges rejected ICE’s broader detention policies in more than 3,000 cases, while just 27 judges backed those policies in about 130 cases. The overwhelming pattern is plain: Judges are sidelining the text of the Immigration and Nationality Act and the Supreme Court’s plenary power doctrine, which affirms broad executive authority over the detention and removal of illegal aliens.
No Supreme Court ruling, by itself, will stop judges committed to creative procedural sabotage.
Lawlessness begets lawlessness. It is grimly fitting that in an era when invaders are encouraged to dictate terms to citizens, inferior courts now side with them while dictating terms to superior courts.
If lower courts refuse deference to their judicial bosses, why should the president keep extending deference to either level when the law is on his side?
Opinion & analysis, Immigration and customs enforcement, Immigration enforcement, The courts, Fifth circuit, Ninth circuit, Judicial supremacy, Judges, Lawlessness, Law and order, Supreme court, Constitution