Does the Supreme Court’s emergency stop of deportations establish judicial excess or protections of liberty?

Despite being another procedural conflict in the always divisive field of immigration policy, the Supreme Court’s late-night ruling to stop deportations under the Trump administration initially appears to be a minor legal issue. But go further, and you will find a concerning trend of judicial intervention compromising not only the authority of the executive branch but also the whole basis of our Constitution. As Judge Andrew Napolitano noted on “Wake Up America,” the court’s emergency intervention—with no government response—is not only “dangerous” but also marks a disturbing change in Washington’s balance of power.

Under the Alien Enemy Act, a wartime clause spanning two centuries, the Supreme Court, in a 7-2 ruling, forbade the Trump government from executing deportations. The government applied this obscure but still existing law in response to the escalating crisis at the southern border. The government thought it provided a legal way to handle particular groups of noncitizens considered a threat to national security. Still, the highest court in the country decided to stop proceedings without appropriate hearings, government comments, or justification. Once thought of as an unthinkable act of judicial activism, this grim truth now exists.

Ignoring Due Process in Pursuit of Procedural Fairness?

The irony is too deep to see at the core of this constitutional catastrophe: the justices’ assertion of procedural justice while depriving the executive branch of response capability. A respected voice in legal and constitutional studies, Judge Napolitano denounced this ruling for what it is: a radical departure from court customs. The court did not even afford the government the courtesy of a briefing. Oral arguments do not exist here. There are no written thoughts available here. Its policy cannot be defended with any hope. On Saturday night activists filed an appeal, and the court answered fast.

Our Supreme Court turned into a rubber stamp for middle-of-the-night activist appeals when?

Historically, the Court has been reluctant to act in immigration matters without careful consideration. Historically, the executive government has been responsible for immigration enforcement. The president, not the court, has the power to guard the boundaries of the country. The court’s intervention without hearing all sides not only goes against custom but also creates a risky precedent that future administrations, Republican or Democrat, will have to negotiate.

Conservative justices are known for their risky alignment

Perhaps the most breathtaking feature of this decision is the composition of the majority, which included Justices Brett Kavanaugh, Amy Coney Barrett, and Chief Justice John Roberts. These are names usually connected with a stringent originalist or textualist perspective of the Constitution—justices who respect the limits of judicial authority. Their unexpected alignment with the liberal wing of the Court set off debate on the conservative legal scene.

Could concerns about procedural fairness have been their primary motivation? Alternatively, was this an instance of striving to enhance institutional image or yielding in response to public pressure?

Regardless of their motives, those tasked with defending conservative values have failed. The effects of this betrayal will go much beyond this one decision. Given political expediency, what hope exists for constitutional adherence if even conservative justices are ready to ignore due process?

Act of Alien Enemies: A Legal Tool in a Chaotic Age

Critics of the Trump government’s use of the Alien Enemy Act characterize it as an outdated and cruel relic from a bygone era. Despite its adoption in 1798 and subsequent changes during World War II, the law remains in effect for a valid reason. It provides the executive branch instant action capability should foreign actors endanger national security. Enforcing this regulation is not only legal but also logical given the remarkable rise in illegal border crossings and the growing penetration of criminal groups over America’s open borders.

Ignoring the reality of modern asymmetric warfare might help one to argue that the Alien Enemies Act is outdated today. Threats increasingly arise from clandestine networks and transnational criminal groups as well as from uniformed military or declared hostilities. The government used this act to defend American sovereignty with all available legal tools, not to punish individuals based on their nationality.

The court’s ruling sends a frightening message to the next administrations: even laws specifically meant to protect the homeland can be swiftly revoked should they contradict the ideological whims of the court.

A political court passes for an unbiased arbiter

Let us forsake the illusion of fairness. The Supreme Court’s decision reflected politics more than it did justice. This ruling at its worst seems to be judicial activism devoid of a written explanation, a constitutional justification, and minimal chance for a suitable response.

The increasing number of emergency-style orders avoiding the court system makes this quite alarming. These aren’t one-time events. Due to a lack of transparency, the Court has progressively rendered unsigned, incomprehensible opinions that profoundly influence national policy. Sometimes released late at night and without oral arguments, these “shadow docket” decisions erode public confidence in our institutions and the Court’s reputation.

The American people deserve an open, not behind closed doors, Supreme Court.

Executive Power Under Siege

This choice goes beyond a fleeting obstacle. It is an overt attack on the president’s right to implement the national laws. The Constitution makes clear that the executive branch enforces immigration rules. Congress passes them; the executive implements them; the court reads them as required. The Court goes far beyond its constitutional power when it starts the procedure without an invitation and without the facts.

The issue is a basic integrity matter rather than a partisan one. If the court has the power to revoke deportation orders, even in the middle of the night, what remains of the presidential authority?

This ruling creates a precedent whereby unelected justices answering activist appeals could bind presidents not by the law but rather by other factors. Who will guard our borders if the executive branch lacks quick reaction capability during a crisis? Who will enforce the legislation?

The actual expense of judicial activism

Ordinary Americans suffer as pundits and legal experts discuss the theoretical implications of this decision. Illegal immigrant-filled communities suffer more economically, have fewer resources, and see more crime. Transformed into refugee camps, border towns are bearing the consequences of misguided government policy and court involvement.

While the Court’s ruling delighted the ivory tower elites and the activist lawyers who brought the case, it misled the people caught in the middle of the immigration debate. These are the forgotten men and women who relied on their government for protection but were let down by judges who would never be held accountable.

What message does this convey to individuals who cross our boundaries without authorization? It is possible to game American laws. A timely appeal can effectively prevent deportation. Breaking the law results in only rewards; there are no fines. When those meant to uphold the rule of law choose to deviate, it is broken.

A Judiciary in Crisis: A Slippery Slope toward Tyranny

We should pay attention to Judge Napolitano’s alert. Though it seems like a technicality, this emergency-style measure opens the path for a considerably more severe degradation of our constitutional framework. The emphasis of today is immigration. National defense could be tomorrow. Alternatively, the focus could be on healthcare policy. Another alternative is religious freedom.

Unchecked court power is slow-motion tyranny.

The founders did not want the court to be an all-powerful body rendering decisions based only on elevation. Their dream was of a co-equal branch showing humility and restraint. Supported by its shadow docket and lifetime tenure, today’s Court is progressively behaving as an unaccountable super-legislature, writing orders without regard for repercussions or responsibility.

Should this inclination persist, our republic will suffer greatly.

Reclaiming the Constitution: The Conservative Response

What, therefore, is to be done?

The conservative movement has to understand this choice as a call to action rather than anything else. Simply selecting “conservative” justices is no longer adequate. Those justices have to make sure they pick the Constitution over institutional position, media approval, and public opinion patterns.

Congress also comes into play. It can authorize laws enhancing the authority of the executive branch in immigration matters and restricting the court’s ability to render emergency decisions devoid of due process. It can help to clarify the shadow docket and urge judicial openness.

Above all, the Americans have to be alert. Our freedoms do not shield us personally. They seek those who are conscious, engaged, and ready to challenge judicial excess anytime it arises.

The country is at a crossroads

One could argue that the Supreme Court’s decision to stop deportations without a thorough examination marks a procedural error. But it is indicative of a more general crisis: a government struggling to uphold the rule of law, an administration hamstrung by activist rulings, and a court lost in its function.

The remarks of Judge Andrew Napolitano on “Wake Up America” went beyond mere viewpoint. They served as a caution. They served as a plea for equilibrium. Remember that the Constitution is a legally enforceable compact between the government and its people, not a living document subject to constant rewriting.

We also have to maintain the structure that upholds liberty if we wish to defend it. And the task begins with appreciating judicial activism for what it is: an unambiguous present threat to American democracy.

It is now time to decide. The question is whether we should choose a constitutional order or a state of anarchy that presents itself as charitable. People occasionally refer to judicial fiat as executive leadership. The concept of the rule of law is sometimes referred to as the rule of the judges.

Let us wish our choices are sensible.