The following appeared in Frontpage Magazine on November 6th
by Joseph Klein
Pro-illegal immigration advocates and environmental extremists are abusing the judicial system to pursue their radical policy agendas. Constitutionalists sitting on the Supreme Court and the lower federal courts are needed more than ever to prevent progressive judges from using such cases to re-write the Constitution to their liking.
Last week, six Honduran migrants currently traveling towards the U.S. border with Mexico, as part of a mob force that they call a caravan, filed a class-action lawsuit in federal court on behalf of themselves and their children against President Donald Trump, Attorney General Jeff Sessions and the heads of various federal agencies dealing with immigration. Although still hundreds of miles away from the border, they are claiming that the Trump administration’s stated intention to bar them from entering the United States violates their due process rights under the Fifth Amendment of the U.S. Constitution.
“Trump’s professed and enacted policy towards thousands of caravanners seeking asylum in the United States is shockingly unconstitutional,” they allege. “The legal problem with Trump’s plan to stop caravan persons from entering this country is that Plaintiffs are seeking asylum, and Trump simply cannot stop them from legally doing so by using military, or anyone.” They claim that the “well-documented human rights crisis” unfolding in their home country entitles them automatically to enter the United States for the purpose of seeking asylum.
The plaintiffs summarily rejected President Trump’s expressed concern for the danger that so many unvetted migrants potentially pose to the security of the American people. “Trump has been unable to produce any evidence of criminals and gang members within the caravan, which has largely proceeded peacefully on its journey,” the plaintiffs asserted in their complaint. To the contrary, the Department of Homeland Security has reported that “over 270 individuals along the caravan route have criminal histories, including known gang membership. Those include a number of violent criminals – examples include aggravated assault with a deadly weapon, armed robbery, sexual assault on a child, and assault on a female.” Members of the so-called “caravans” have already used violence against Mexican police officers and military personnel trying to secure Mexico’s southern border.
This lawsuit should be dismissed on its face. First, the plaintiffs have no standing to invoke the protections of the United States Constitution. The Constitution is not a universal declaration of human rights that requires the country’s borders be opened to anyone in the world complaining of bad conditions in their home countries. Moreover, the plaintiffs failed to take advantage of other opportunities for seeking asylum. They neither applied for refugee status at the U.S. embassy in Honduras or in any other Central American country, nor sought asylum in Mexico where it has been offered.
Secondly, the plaintiffs’ case is not yet ripe for judicial review. They are nowhere near the border and, therefore, have not tested the U.S. asylum system by approaching the official ports of entry border crossings to make their claims for asylum hearings in an orderly fashion. Thus, none of the plaintiffs have been actually “deprived of life, liberty, or property, without due process of law” by reason of any action by federal or state government officials. Moreover, President Trump has not said that all asylum claims would be summarily dismissed. He has simply said that asylum seekers allowed to enter the country to make their claims must do so at the official ports of entry and would not be released into the country at large until their asylum claims can be heard, which could take months or even years. The asylum seekers are free to accept this condition, or to reject it and leave.
Finally, if the case were allowed to proceed on its merits, the recent Supreme Court decision upholding President Trump’s temporary ban on travel of foreigners to the United States from certain countries should be dispositive. The Supreme Court ruled that the president of the United States has broad discretionary authority under the Immigration and Nationality Act (INA) to issue a proclamation that would “suspend the entry of all aliens or any class of aliens” whenever he “finds” that their entry “would be detrimental to the interests of the United States.” 8 U. S. C. §1182(f). Such discretion should include the president’s authority to suspend entry of all aliens traveling together in large groups from Central America until an orderly process for handling asylum requests on a case by case basis can be established at the official ports of entry, which are already overwhelmed with applications for asylum.
Dismissal of the plaintiffs’ “caravan” case should be a no-brainer. Unfortunately, as seen already with the handling by lower court activist judges of President Trump’s temporary travel ban, there are judges on the federal courts willing to turn the Constitution inside out to suit their social justice progressive agendas.
Anti-fossil fuel activists have found just such an ally on the federal bench. They filed a constitutional climate lawsuit against the U.S. government in the U.S. District Court for the District of Oregon in 2015, which is still alive. The complaint alleges that through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property, as well as failed to protect essential public trust resources. The plaintiffs are a group of young people between the ages of eight and nineteen; Earth Guardians, an association of young environmental activists; and an individual acting as guardian for future generations. They claim that the government allowed carbon dioxide produced by burning fossil fuels to destabilize the climate system in a way that would “significantly endanger plaintiffs, with the damage persisting for millenia.” They seek a judicial declaration that their constitutional and public trust rights have been violated. They also want an order enjoining the government from violating those rights and directing it to develop a plan to reduce carbon dioxide emissions. The lawsuit challenges policy decisions various government agencies have made, including whether and to what extent to regulate carbon dioxide emissions from power plants and vehicles, whether to permit fossil fuel extraction and development to take place on federal lands, whether to permit the export and import of fossil fuels from and to the United States, and whether to authorize new marine coal terminal projects.
Instead of dismissing the case outright as involving policy matters that belong with the elected branches of the government to resolve, the federal district court judge assigned to the case, Judge Ann Aiken of the District Court in Oregon, has allowed it to proceed forward. Even the Supreme Court decided recently that it was too soon to dispose of the case on the grounds asserted by the government. A trial may proceed shortly.
Contrary to common sense, Judge Aiken concluded that courts are perfectly capable of setting a permissible emissions level to meet the plaintiff’s demands without having to balance competing economic concerns that policy makers would normally consider. The judge has implicitly accepted the plaintiffs’ crystal ball, which predicts a doomsday scenario affecting unborn generations unless the court steps in immediately. Never mind about technological and market solutions. Judge Aiken assumed that the plaintiffs can show the government’s actions to be primarily responsible for causing the harmful effects of climate change on the plaintiffs’ own health and well-being, which is necessary to give them standing to bring their case against the government in the first place. Climate change can be caused by carbon gas emissions emanating from anywhere in the world, including China, the largest source. Climate change can also be caused by other factors altogether. In accepting the plaintiffs’ premise that their alleged injuries can be tied directly to the U.S. government’s failure to adequately curtail fossil fuel production and usage, Judge Aiken has engaged in voodoo science. She pointed to the plaintiffs’ allegation that, over more than two centuries, the United States produced more than twenty-five percent of global carbon dioxide emissions. She did not bother to acknowledge the many lives that were saved or improved significantly during that time span because of the innovations made possible by fossil fuel energy and the growing economy it spurred. Nor did she consider the many lives that can be positively affected in the future by the continued availability of such relatively cheap sources of energy alongside renewable energy.
Judge Aiken’s most egregious demonstration of unrestrained judicial activism lies in her acceptance of the plaintiffs’ due process theory. She inserted into the Constitution a “fundamental right” that appears nowhere in the Constitution’s text. Instead, she embraced the notion that the Constitution is an ever-evolving instrument that judges can add new rights to as each generation discovers anew what liberty means. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society,” Judge Aiken wrote. “In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.”
With a stroke of the pen, Judge Aiken has declared a “stable climate system” to be a new constitutional right that the government has an affirmative duty to protect by effectively eliminating an entire industry on which the country’s economic growth has largely depended. She decided that peoples’ livelihoods today and in the foreseeable future in a major sector of the economy can be wiped out by government action to uphold her newly discovered “fundamental right” of the plaintiffs. She passed over the effect her ruling could have in rendering the property value of fossil fuel reserves worthless, likely without any fair compensation to their owners. She failed to explain how the actions she would require the government to take against the fossil fuel industry to uphold the plaintiffs’ new supposed “fundamental right” would not infringe the Fifth Amendment due process rights of the people whose livelihoods and property the government will have destroyed in the process. They too are entitled to be protected against government actions depriving them of their “life, liberty, or property” without “due process of law.”
The caravan and climate change cases show how important it is for the Senate to continue being able to confirm Supreme Court justices and lower court judges at the appellate and district court levels who interpret the Constitution and statutes as written.