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What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

William L. Kovacs

May 2022

What If Biden Defies Sup Ct Order Upholding Remain in Mexico?

President Biden has been evading several court orders to implement the nation’s “Remain in Mexico” policy without consequence other than Republicans complaining about it on cable talk programs. Biden’s policy decisions result in an open southern border that allows millions of immigrants to enter our country illegally, including drug smugglers, sex traffickers, and terrorists. The dispute is now before the U.S. Supreme Court. However, the potentially traumatic constitutional part of the controversy is – what if the Supreme Court upholds the “Remain in Mexico” policy and the Biden administration refuses to enforce it?

Since the court is without enforcement authority and Congress lacks the courage to follow the Constitution, the simple answer may be there will be no political consequence to Biden until the 2024 election. But what about the many Americans injured by the millions of illegal immigrants trespassing on farms causing damage to land and animals, and the assaults and even murders of Americans, not to mention the costs of migrant care imposed on hundreds of small towns?

A similar situation occurred in 1832 when President Andrew Jackson was outraged over a Supreme Court decision striking down a Georgia law regulating the entry of white people on Native American lands. Jackson stated – “John Marshall has made the decision; now let him enforce it.” Jackson viewed the Supreme Court’s decision as interfering with his power to remove Indians from their land. Jackson’s contempt for the rule of law eventually led to the horrifying Trail of Tears.

Today, another conflict over the regulation of people is before the Supreme Court. The case, Biden v. Texas, addresses whether the Biden administration must enforce the Trump era “Remain in Mexico” policy that requires non-Mexican migrants to wait in Mexico until the U.S. can adjudicate their asylum claims.

On April 26, 2022, Texas argued that under the clear language of the immigration statute, the Biden administration has only three options for dealing with illegal immigrants: (1) decide on a case-by-case basis to allow certain immigrants to stay since they offer benefits to the U.S.; (2) return the immigrant to Mexico, or (3) place the immigrant in U.S. detention centers.

The Biden administration argues it is impossible to detain the millions of illegal immigrants since Congress only provided funding to detain 34,000 immigrants. Yet, Biden’s 2023 budget seeks to reduce that number by 25%. Moreover, since the “Return to Mexico” policy involves foreign policy with another country, Biden asserts the court cannot interfere with the President’s power over foreign affairs. Operating within these restrictions, the administration opted to release most immigrants into the U.S. Unfortunately, Congress restricted its authority to case-by-case determinations. The administration has no statutory power to release immigrants en masse.

An open southern border seems to be as crucial to president Biden as acquiring Indian lands was to president Jackson. What happens if the Supreme Court orders the Biden administration to enforce the “Remain in Mexico” policy and Biden tells the court, “You made the decision; now you enforce it?”

There are very few workable options to make Biden enforce the law.

Congress could appropriate hundreds of billions of dollars to detain the millions of illegal immigrants until their asylum dates. Is it unlikely that Congress would appropriate such amounts since the Biden administration has refused to complete the most straightforward task, building the border wall.

A Republican House of Representatives in 2023 could impeach Biden; however, it is unlikely the Senate will have 67 votes to convict him. Besides being a footnote in history, the impeachment will not result in any serious border enforcement.

Congress could cut off funds to the Department of Homeland Security (“DHS”). Still, Biden would veto such an effort, and it is unlikely that Congress can override the President’s veto.

Conversely, one House of Congress could refuse to appropriate any funds for DHS operations. This situation is unlikely since it would eliminate all border protection.

A real politick option would be for one House of Congress to refuse to provide any funding for an agency desperately desired by Biden’s allies, such as the Department of Education. Withholding these funds might bring the Biden administration to the negotiating table to ensure his most significant contributor, the teachers union, continues its control over American education. It is unlikely, however; that the Republicans have the courage to enter such a high-stakes negotiation.

A more practical option might be for citizens injured by the administration’s actions to seek compensation under section1985 (c) of the Civil Rights Act of 1871. They would allege that the president and the Border Patrol conspired to act illegally and such conduct deprived them of their right to equal protection of the law.

Federal immigration law requires the President and the Border Patrol to prevent persons and goods from illegally entering the U.S. and harming the nation’s security. Since the start of the Biden administration, citizens have complained of the harm caused by its failure to secure the border, a violation of Biden’s constitutional duty to  “Take Care” that the laws be faithfully executed.

The federal government’s defenses of sovereign immunity, (the government can do no wrong), and that it operates as one entity so there cannot be a conspiracy, usually prevail. In the civil rights context, the situation is different when the government deprives citizens of their constitutional rights. Simply, the courts have recognized some limits on immunity from government corruption.

In a civil rights context, “… when execution of a government’s policy or custom, whether the policy is made by lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury,” the government as an entity is responsible for the actions. Suppose Biden refuses to obey the court’s order, and the Border Patrol follows Biden’s orders. In that case, the two entities are conspiring to violate U.S. policy.  The conspiracy deprives those harmed of their right to the equal protection of the law; e.g., intentionally allowing into the U.S. drug dealers, sex traffickers, and terrorists who harm Americans.

For far too long, citizens have lacked remedies when injured by the joint illegal conduct of the Executive and the agencies following its directive. Other examples help illustrate this point: the IRS  targeting the tax returns of conservative groups and the FBI filing false FISA applications to spy on citizens. The general remedy of injunctive relief is usually a day late and of no compensatory value. Federal apologies for violating the civil rights of citizens are cheap. Seeking monetary damages under the Civil Rights laws against the federal agencies that intentionally implement illegal government policy may be the best mechanism for citizens to uncover the scope of any unlawful activity and be compensated for their injury.

William L. Kovacs is the author of Reform the Kakistocracy, the winner of the 2021 Independent Press Award for Political/Social Change. Mr. Kovacs has served as senior vice-president for the US Chamber of Commerce, chief counsel to a congressional committee, and a partner in law DC law firms.

This article was first published in The Thinking Conservative, https://www.thethinkingconservative.com/what-if-biden-defies-supreme-court-order-upholding-remain-in-mexico/



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  • Federal Law: Virtue Signaling While Abusing Rule of Law

Federal Law: Virtue Signaling While Abusing Rule of Law

William L. Kovacs

June 2021

Federal Law:  Virtue Signaling While Abusing Rule of Law

There are probably more well-deserved jokes about the U.S. Congress than any institution in the world. Will Rogers quipped “When Congress makes a joke it’s a law, and when they make a law, it’s a joke.” Rogers perfectly captures how the actions of Congress are more often virtue signaling than efforts to ensure a rule of law society.

“Virtue Signaling” describes “…the act of showing support of doing something ‘virtuous’ because it makes you look good to your peers, rather than because you truly believe it.” While virtue signaling is part of the DNA in most organizations and cable news, it is front and center in Congress. Unfortunately, members of Congress find greater ego satisfaction virtue signaling to supporters than doing the hard work needed to enact carefully crafted laws that will be effectively implemented. While there are thousands of examples of the disconnect between what is enacted into law and the real-world policies of the U.S., the laws outlawing child labor, forced labor, and illegal immigration are excellent examples of the disconnect.

Chirpan Child Labor

Virtue Signaling – Congress signaled great virtue when it enacted Section 307 of the Tariff Act of 1930 to prohibit the importation of goods made, in whole or in part, by the forced labor of children. With more virtue signaling, Congress in 2005 assigned the Department of Labor the responsibility to reduce the likelihood of these goods being imported into the U.S.

Abuse of Rule of Law – Unfortunately, still today, many of our most in-demand products are made by the forced labor children and are being imported into the U.S. Wise step, a recruitment software company, in an article, identifies the 28 companies that still use child labor. Most of the companies are top brand names but more interesting is the breadth of industries still using child labor to produce products for American consumers. The industries include chocolate making, food production, fashion, apparel, sneakers, toys, and cell phones.

Misoprostol prescription cost Forced Labor

Virtue Signaling – Forced labor, commonly referred to as “slave labor,” is defined by section 307 as “All work…extracted from any person under the menace of any penalty for its non-performance which the worker does not offer himself voluntarily.” While the statute prohibits any product mined, produced, or manufactured, wholly or in part, by forced labor, it has little enforcement due to a clause that allows the U.S. to waive enforcement if it lacks the resources (i.e., money) to conduct inspections or the products are no longer made in the U.S. but wanted by consumers.

Abuse of Rule of Law – As to the lack of inspection resources, Congress merely fails to appropriate the money for inspections. As to products no longer made in this country, U.S. business decades ago exported its manufacturing base to acquire cheap labor.

Having two self-fulfilling reasons for not enforcing prohibitions on forced labor, the federal government rarely used its section 307 enforcement powers; only 60-75 times between 1930 and mid-1980 and 27 times between 1991-1995. There were no enforcement actions between 2000-2016. In 2016 Congress removed the exemption clause. Since then, there have been 16 enforcement actions.

buy cipla isotretinoin Immigration and Illegal Immigration

Virtue Signaling – Congress enacted a comprehensive Immigration and Nationality Act that is several hundred pages long. It addresses everything from application forms, different aspects of travel for the different status categories, to visas and foreign entry, to detention procedures. Literally, every step of the legal immigration process is established so that foreign citizens can apply to the United States for citizenship or permission to work. The law is supplemented by regulations, policy manuals, memoranda, and Handbooks, comprising tens of thousands of pages on how to become a U.S. citizen. It appears nothing is left unsaid by the bureaucrats.

Congress has been legislating on citizenship issues since 1790. While Congress has legislated many inconsistent policies over the years, e.g., exclusion at various times of Chinese, Communists, idiots, alcoholics, preferences for nurses at times, and countless other categories of exclusion or preference, it has always had detailed policies on legal entry into the country.

Abuse of Rule of Law – Notwithstanding the countless immigration policies and procedures for legally entering the U.S., President Biden, without any change in law, promised good treatment to undocumented immigrants crossing our Southern border, in violation of U.S. law. He also reinstituted catch and release policy in which these unauthorized citizens are caught and immediately released into the interior of the country, making it impossible to ever find them. For all intents and purposes, these undocumented people are now permanent residents of the U.S., they just lack paperwork.

In the month of March 2021, alone, there were 172,000 persons in this category. Estimates are that 6000 people, per day, are now entering, the U.S., the highest in our history, without complying with our immigration laws.

These unauthorized entrants include drug cartel members, and gang members with indentured servants, sex traffickers and drug dealers, and those sick with Covid-19.

The Rule of Law Is a Fiction in the U.S.

The United States continuously signals virtue claiming to be a Rule of Law society. We have comprehensive laws regulating or prohibiting child labor, indentured servitude, sex trafficking, drug smuggling, and have a process for legal entry into the country. Actually, the U.S. has tens of thousands of laws that regulate most aspects of society, from low-flush toilets to the ethical treatment of animals. We have more laws than any other country in the world. In short, we constantly signal our virtue to the world.

Unfortunately, we have a government that randomly and arbitrarily implements the laws of the nation. We have a big business community that regularly skits the law for extra profit. We openly allow illegal entry into our country of people who are the worst of the lawbreakers, i.e., drug dealers, cartel operators, sex traffickers, and those who enslave others.

The U.S. government should be honest with the laws it enacts. It could legalize certain drugs and prostitution. It could increase the number of work permits for foreign labor. Taking these steps would make our laws consistent with our actions. But the U.S. won’t do any of this. In the end, the federal government wants a massive number of laws so it can prosecute, regulate or eliminate those it finds objectionable.

Tacitus warned us that “The more corrupt the state, the more numerous the laws.” By that definition, we are the most corrupt nation on earth. Congress needs to eliminate all unnecessary laws and enforce the necessary laws. In more colloquial language, Congress needs to stop virtue signaling and start being responsible lawmakers. Having reasonable laws that are obeyed is the basis of the rule of law society and engendering respect for our institutions.