A Justice Barrett would keep Biden’s worst ideas in check

President Donald Trump has nominated Judge Amy Coney Barrett to fill the Supreme Court vacancy created by the passing of Justice Ruth Bader Ginsburg, and the Senate intends to begin confirmation proceedings as soon as possible.

The Democrats are objecting. Apparently, they expect Joe Biden to win the upcoming election, and they want him to be able to fill the vacancy with a liberal judge.

I want the conservative judge Trump nominated to fill it because a conservative court would be more likely to shut down the illegitimate, extremely lax immigration enforcement program that Biden intends to establish if he is elected.

If Barrett is confirmed, the court will have a solid majority of 6 conservative justices.

Congress is supposed to write the laws, not the president

The framers of the Constitution included separation of powers provisions in the Constitution to prevent presidents from creating their own laws instead of administering the laws passed by congress.

Article 1 of the Constitution established the Legislative Branch (Congress) to create the laws. Article 2 established the Executive Branch (the president) to approve and carry out the laws created by the Legislative Branch. And Article 3 established the Judicial Branch (the courts) to interpret the laws passed by the Legislative Branch.

This system of checks and balances provides each branch of government with individual powers to check the other branches and prevent any one branch from becoming too powerful.

Biden’s enforcement program

In his “Plan For Securing Our Values as a Nation of Immigrants,” Biden says he intends to follow the approach that the Obama-Biden administration took when he was the vice president. It prioritized enforcement resources on removing deportable aliens who were threats to national security and public safety.

This would have been a legitimate exercise of prosecutorial discretion if it had stopped with prioritizing resources, but it didn’t stop there.

The memorandum the administration used to implement this program established three priority categories that completely replaced the congressionally-written deportation grounds in section 1227 of the Immigration and Nationality Act (INA).

In addition to the possibility that this priority program violated the separation of powers provisions in the Constitution, the extremely lax enforcement provisions virtually eliminated the threat of deportation for undocumented aliens living in the interior of the country who weren’t convicted of a serious crime or subject to a deportation order.

It is much more difficult to stop illegal crossings when the aliens seeking to cross know that they will be home-free once they have reached the interior of the country.

But Biden intends to go even further.

At the March 15, 2020, Democratic primary debate, Biden said, “in the first 100 days of my administration, no one, no one will be deported at all. From that point on, the only deportations that will take place are for commissions of felonies in the United States of America.”

Threat to democracy

If Biden were to go far enough with his proclivity for writing his own laws, the nature of the government might shift from being a democracy to being a dictatorship — a benevolent one, perhaps, but a dictatorship nonetheless.

And I agree with Rachel Kleinfeld from the Carnegie Endowment for International Peace that benevolent dictatorship is never the answer.

Kleinfeld points out that permitting a benevolent dictatorship is like playing roulette where almost every spot on the wheel leads to a dictatorship that is anything but benevolent.

Moreover, it isn’t just a matter of not knowing what future presidents will want to do. It would not even be possible to know what Biden would do if he turned his attention to other laws.

If Biden were to become president and implement such an enforcement policy, he might be able to defend it in the lower federal courts, and it could take a long time to reach the Supreme Court; however, if Barrett is one of the justices, I would expect the outcome of the suit to be favorable when it reaches the Supreme Court.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.