Rogue courts are ignoring statutory text, inventing authority Congress denied them, and blocking the president from using the expedited removal powers Congress approved.
Nearly 30 years ago, Congress recognized that the country could not litigate its way out of an immigration crisis.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act, bipartisan majorities created expedited removal for anyone who failed to prove two years of physical presence in the United States. Anticipating a cottage industry of defense attorneys forcing the government to prove duration of unlawful stay, Congress also stripped federal courts of jurisdiction to review expedited removal orders.
Three decades passed with little enforcement. Now, after that long dormancy, federal judges have begun reviewing cases they have no statutory authority to hear and are attempting to block President Trump from using expedited removal nationwide.
Over the line
On November 22, the U.S. Court of Appeals for the D.C. Circuit refused the Justice Department’s request for a stay in Make the Road New York v. Noem. The case challenges Trump’s policy expanding expedited removal to illegal aliens apprehended anywhere in the country, provided they cannot prove two years of continuous presence. Administrations since the 1990s ignored the statute and limited expedited removal to aliens caught at or near the border.
Rogue courts are ignoring statutory text, inventing authority Congress denied them, and blocking the president from using the expedited removal powers Congress approved.
Nearly 30 years ago, Congress recognized that the country could not litigate its way out of an immigration crisis.
As part of the Illegal Immigration Reform and Immigrant Responsibility Act, bipartisan majorities created expedited removal for anyone who failed to prove two years of physical presence in the United States. Anticipating a cottage industry of defense attorneys forcing the government to prove duration of unlawful stay, Congress also stripped federal courts of jurisdiction to review expedited removal orders.
Three decades passed with little enforcement. Now, after that long dormancy, federal judges have begun reviewing cases they have no statutory authority to hear and are attempting to block President Trump from using expedited removal nationwide.
Over the line
On November 22, the U.S. Court of Appeals for the D.C. Circuit refused the Justice Department’s request for a stay in Make the Road New York v. Noem. The case challenges Trump’s policy expanding expedited removal to illegal aliens apprehended anywhere in the country, provided they cannot prove two years of continuous presence. Administrations since the 1990s ignored the statute and limited expedited removal to aliens caught at or near the border.