When addressing the concerns of the Anti-Federalists that the proposed office of president would function like a monarch, Alexander Hamilton detailed a list of stark distinctions between the two powers in Federalist #69. He used the power over immigration as the quintessential example of what distinguishes the power of a president from that of a king. Whereas “the one [a president] can confer no privileges whatever,” wrote Hamilton, “the other [a king] can make denizens of aliens.”
Well, Hamilton never accounted for a post-constitutional era where the federal courts would also be able to make citizens of aliens.
It’s not even worth delving into the details of today’s 5-4 decision of the Supreme Court that President Trump cannot rescind an illegal executive amnesty of his predecessor in the same way it was initially promulgated. The same way it’s not worth trying to parse a decision redefining marriage or sexuality in law. These are powers a court simply does not possess.
The courts are defying the law, the Constitution, and 130 years of their own settled case law that illegal aliens have no standing to sue for a right to remain in the country against the will of the political branches of government. It is they who are defying the law. Moreover, as Hamilton noted in Federalist #78, the courts “must ultimately depend upon the aid of the executive arm for the efficacy of its judgments.” Thus, Trump declining to actively use his powers to violate immigration laws duly passed by Congress is not defying the courts; it’s following the law being defied by the judiciary.
You see, this case is different from almost every case that comes before the courts. Typically, the courts will invent a contrived right and demand that the other branches take an action they need not take. In this case, the court is jumping two steps by demanding Trump not only refrain from deporting illegal aliens, but affirmatively use the tools of government to grant resident documents to people whom our law explicitly prohibits from having them.
If separation of powers means anything at all and we are to preserve a country of checks and balances, Trump must not issue these visas.
The difference between judicial review and judicial supremacism
There’s a difference between a scenario where the executive branch is trying to imprison or execute a citizen and the court grants reprieve, vs. when the court is demanding that the executive branch take action to grant that individual a privilege not accorded to him by law. In the former case, even if the court got it wrong, being the final authority on a criminal conviction is emphatically the province of a court. In the latter case, the court has no power to demand the executive branch take action contrary to law and certainly no way to enforce it. The same way a court can set aside a policy or law it feels it is unconstitutional for its purposes of a ruling in a single case, the executive branch has the same obligation to set aside capricious court rulings when they violate the Constitution and intersect with its more robust powers.
As Jefferson said toward the end of his life, “Each of the three departments has equally the right to decide for itself what is its duty under the Constitution without regard to what the others may have decided for themselves under a similar question.”