OPINION:
A coalition of anti-border organizations in Chicago has just filed what may be the dumbest lawsuit in the history of jurisprudence. In essence, it claims that enforcement of the Immigration and Nationality Act — the statute that dictates how and when foreign nationals may lawfully enter the United States — interferes with the First Amendment rights of sanctuary city advocates.
Frankly, it’s hard to overstate just how moronic Organized Communities Against Deportation, Illinois Coalition for Immigrant and Refugee Rights, Brighton Park Neighborhood Council and Raise the Floor Alliance v. Trump are. The whole lawsuit is based on absurdly circular reasoning. The no-borders buffoons that filed it are, in essence, arguing that enforcing the immigration laws of the United States interferes with their First Amendment rights to help illegal aliens violate and continue to break those laws. According to one illegal alien advocate, “The impending raids are a brazen attempt to stomp out the sanctuary city movement and run roughshod over the First Amendment.”
If that strikes you as the wrong way around, that’s because it is. The First Amendment protects the “right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It doesn’t confer any right to ignore whatever laws one dislikes or to interfere with the legitimate and lawful operations of federal law enforcement.
While states, counties and cities can’t be compelled to carry out functions that the Constitution assigns to the federal government, the principles of “cooperative federalism” upon which the United States operates also make it improper for those jurisdictions to actively impede the federal government in lawfully performing its assigned duties.
Under the 10th Amendment, any powers not given to the federal government belong to the states or the people. The federal government has the power to secure America’s borders and regulate immigration. The Supreme Court most recently confirmed this in Arizona v. United States, where it opined, “The federal power to determine immigration policy is well settled.”
Far from being protected by the First Amendment, most of the activities undertaken by sanctuary jurisdictions are blatantly illegal. Under the terms of the Immigration and Nationality Act, it is a crime to bring an illegal alien into the United States and harbor him or her therein. Moreover, “any person who encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.”
It would be difficult to conceive of anything that encourages or induces illegal migration more than sanctuary policies. Despite its pretentious name, the “sanctuary movement” is just states, counties and cities telling immigration violators, “Come here and we’ll help you evade U.S. Immigration and Customs Enforcement. Heck, we’ll even interfere with ICE operations when we can.”
While the Supreme Court has not directly considered the legality of sanctuary city policies, it has repeatedly said that laws making it a criminal offense to encourage or induce illegal immigration pass constitutional muster. This issue has been addressed in two recent cases, United States v. Sinning-Smith and United States v. Hansen, and the court has been unequivocal in its view that the First Amendment does not protect speech that encourages violation of the law.
Therefore, based on Sineneng-Smith and Hansen alone, it is hard to believe that the U.S. District Court for the Northern District of Illinois will issue an injunction directing the president to cease enforcing the Immigration and Nationality Act in Chicago because sanctuary activities are protected under the First Amendment. Such an approach would, paraphrasing Justice Clarence Thomas’ concurring opinion in Hansen, “lack any basis in the text or history of the First Amendment” and “distort the judicial role.”
On the other hand, President Trump has a clear duty, under Article II, Section 3 of the Constitution, known as the “take care” clause, to faithfully execute the laws of the United States. Those laws include the Immigration and Nationality Act, which requires the federal government to remove aliens who have entered the United States without authorization and aliens who entered the U.S. lawfully but subsequently failed to abide by the terms of their admission. There doesn’t seem to be any legitimate basis for the court to conclude that ICE’s arrests of immigration violators in and around Chicago are inconsistent with the Constitution or any other federal laws, rules or regulations.
So, what’s going on here? Mr. Trump won a second term in office based on a promise he would enforce the Immigration and Nationality Act, as written by Congress, and he is delivering on that promise. The anti-borders contingent doesn’t like that, so it is engaging in the legal equivalent of a toddler throwing a temper tantrum.
In an ideal world, that kind of legal whining and foot stomping would be laughed out of court. However, attempts to legislate from the bench are real. It remains to be seen whether this case will be heard by a black-robed social engineer who thinks he or she knows better than the Founding Fathers and the American electorate or whether it will be decided by a judge who understands that, in the United States, the role of the judiciary is to apply the relevant law to the established facts and rule accordingly.
• Dale L. Wilcox is executive director and general counsel for the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration. Matt O’Brien is the director of investigations at the Immigration Reform Law Institute and the co-host of IRLI’s podcast “No Border, No Country.” He previously served as an immigration judge and has nearly 30 years of experience in immigration law and policy, having held numerous positions within the Department of Homeland Security.
Please read our comment policy before commenting.