With new Supreme Court Justice Brett Kavanaugh hanging over all of today’s proceedings, this moment should be instructive for liberals. America was created with a powerful legislature which has the ability to usurp plenty of the ground that we have ceded to the judicial system over the years. It’s time to take power back from the judicial branch, given that we are almost certain to be living under a reactionary conservative majority on the Supreme Court for the rest of millennials’ adult lives (unless we expand the Court, which liberals should do when/if they get power again).
Right now we need all the help we can get, and some arrived in the form of federal judge, Dolly M. Gee. The Trump Administration had filed an application that asserted they should not be bound by the 1997 Flores Agreement, which restricts how long they can detain immigrant children. Per Judge Gee’s ruling:
It is apparent that Defendants’ Application is a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate. The parties voluntarily agreed to the terms of the Flores Agreement more than two decades ago. The Court did not force the parties into the agreement nor did it draft the contractual language. Its role is merely to interpret and enforce the clear and unambiguous language to which the parties agreed, applying well-established principles of law. Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in the Defendants’ custody are blameless. They are subject to the decisions made by adults over whom they have no control. In implementing the Agreement, their best interests should be paramount.
This ruling is exactly what America needs right now. It makes it almost impossible for the Trump Administration to both comply with it and continue their “zero tolerance” policy at the border, as the Flores Agreement declares that the government cannot detain children for more than 20 days. Just before making her decision final, Judge Gee twisted the knife, taking a shot at the Trump administration’s basic competency:
Of course, the parties are always free to meet and confer regarding any contractual amendments on which they can mutually agree. This is basic contract law.
In light of the foregoing, the Court DENIES the Ex Parte Application because it is procedurally improper and wholly without merit.
IT IS SO ORDERED.
That ending is pretty satisfying isn’t it? Well, not when you’re on the other side of a ruling. It’s important to have the judiciary act as a check on the executive in cases like this, but the legislative branch is supposed to be a check on the judicial branch, and congress has largely retreated from policymaking in the 21st century. That is a focus of Judge Gee’s opinion, citing “over 20 years of Congressional inaction” as a central part of our current malaise. All our problems with immigration ultimately lead to the same intractable source: Congress (well, and the Department of Homeland Security, but that’s a column for another day).
President Obama created DACA as a stopgap legal(ish) policy to ensure that we didn’t deport de facto Americans who lack the de jure status because they were brought here as children. It’s far from a perfect solution, and it keeps people in a perpetual two-year limbo by having to reapply until a long-term solution is found. The 2012 GOP “autopsy” called for Republicans to moderate on immigration, and Obama bet (wrongly) again on the mythical Republican moderate. The GOP went in the opposite direction and landed on Trump, and now any kind of comprehensive immigration reform is a distant hope at best. We’re going to have to keep our fingers crossed that the cases surrounding America’s child concentration camps on our southern border land on the desk of judges like Dolly Gee. Given how Trump is reshaping the judiciary in his image, that likelihood decreases each and every day.
There is hope, though. That despair you feel over the Supreme Court is accurate, but only if we have nine justices, and there’s nothing in the constitution locking in a specific number of justices. Congress has the authority to create Supreme Court seats whenever they want, and in 1937, President Franklin Delano Roosevelt floated a bill that would give him the power to appoint an additional justice for every member of the court over the age of 70 years, 6 months. It never hit the floor because Associate Justice Owen Roberts reversed his position, and became supportive of FDR’s New Deal, but that’s the kind of thinking this new age of liberals must embrace, even if it violates “norms” (which I don’t understand how a constitutionally legal action can be in egregious violation of American “norms” last updated in 18freaking69, but I digress…). Congress must do its job.
The Legislative Branch is supposed to write the laws.
The Executive Branch is supposed to enforce the laws.
The Judicial Branch is supposed to interpret the laws.
When one abdicates its responsibility, the American project goes haywire, as our modern life proves. While the Supreme Court is hanging over everything like a storm cloud today, take some time out of your day to be happy about this important ruling by our federal court system, and then begin thinking about how we can elect people to Congress who are willing to do their job and serve as a check on America’s historically reactionary judiciary, so we don’t have to play the federal judge lottery with our future.
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.