Horowitz: Why is the Trump admin allowing judges to illegally release criminal aliens?

Attorney General Barr threatened to file lawsuits against governors overstepping their power to infringe upon civil liberties, yet the only lawsuits that are succeeding are the ones from illegal aliens. Suddenly, when it comes to those with no right to be in our communities, the courts are all-powerful and the executives are weak. In fact, the president really has the power to deport illegal aliens and prevent them from being released into our communities.

Late on Thursday, U.S. District Judge Marcia G. Cooke in Miami became the latest federal judge to illegally mandate that ICE release “vulnerable” populations in detention facilities. She charged that ICE acted with “deliberate indifference” and engaged in what amounts to “cruel and unusual punishment” against illegal aliens by not releasing them during the coronavirus epidemic.

Therefore, Cooke ordered ICE to submit twice-weekly reports on the status of the detainees and who is being released. She also ordered that ICE shall immediately provide masks to all detainees and replace them once a week.

Well, I don’t have masks – maybe I can get a judge to order them for me too?

There’s one ingredient missing here, and it sheds light both on the morality of detaining illegal aliens during this epidemic and the legality of a judge ordering them released into our communities rather than released to their home countries. These people are in detention of their own volition. They broke into our country and can always voluntarily depart. The only reason they are being held is because they are the ones resisting repatriation and are trying to litigate their way into the country. That is their choice. If they want to do so during an epidemic they must wait in detention. If they are truly concerned about dying of the virus – enough to file a lawsuit – then they should ask for voluntary departure.

This is an illegal ruling. 8 U.S.C. §1226(e) states plainly that these decisions are not subject to judicial review: “The [AG’s] discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the [AG] under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.”

Indeed, ICE lawyers as well as the magistrate judge originally hearing the case under Judge Marcia Cooke agreed there is no authority to adjudicate this case.

Now, an illegal ruling can potentially lead to the release of another 1,200 into our communities, but only if the administration lets it happen.

It’s truly disgusting how during a time of unprecedented executive power, when courts are so passive in the face of the onslaught against citizens’ rights, the federal government is so passive and submissive to an illegal court ruling purporting to govern people who have no right to be here.

If this is truly against statute, the executive branch has an obligation to uphold statute. Yes, all things equal, the law provides these illegal aliens with an immigration court process. But that requires detention, and if a judge is going to subvert detention, then Trump has every right to remove them from the country.

The Supreme Court has said for 130 years, in what is considered one of the most uninterrupted chains of case law, that illegal aliens who have not been affirmatively and consensually admitted to this country are as if they are standing physically outside our country. Clarence Thomas has suggested that perhaps the president has inherent authority to deport even a legal immigrant who is here under statute. But Trump certainly can apply that to an illegal alien who is considered as if he’s standing outside our country.

Already as far back as the 1950s, the Supreme Court had already said, “For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.” Leng May Ma v. Barber, 1958.

Even an alien under questionable status, and certainly someone who snuck into the country “was to be regarded as stopped at the boundary line and kept there unless and until her right to enter should be declared.” Kaplan v. Tod, 267 U.S. 228, 230 (1925). Even after she was no longer detained, “[s]he was still in theory of law at the boundary line and had gained no foothold in the United States.”

Once they are regarded as if they are outside the country, not only does the president have inherent constitutional authority (governing foreign affairs and foreign commerce) to repatriate them, but even delegated authority under his emergency health crisis powers.

In fact, what the courts are doing – mandating the release of illegal aliens rather than returning them – is not only harming our security and breaking our laws, but is going to spread the virus even more.

Here’s the reality: the ACLU is right – coronavirus spreads like wildfire in prisons and ICE facilities. But that ship has sailed a long time ago. The good news is it demonstrates that the fatality rate, especially for this predominantly young population, is remarkably low. Out of over 50,000 foreign nationals detained in ICE detention facilities, not a single one has died (although two guards have died). We don’t know how many have contracted COVID-19, but over 60% of the over 1,000 who were tested for it were confirmed positive. Which means it’s likely that thousands have been exposed. This is yet one more data point showing the virus has an even lower fatality rate than people think.

But on the other hand, by releasing them, you will be taking predominantly younger people who have already developed herd immunity in a confined setting and releasing them into a population that has not been exposed quite as much. Moreover, as I noted with regard to domestic criminals being released under COVID-19 jailbreak, they are being thrust suddenly into communities without much of a home and will get even less treatment than they would in the facilities. This is certainly true for illegal aliens who often have no connection to a community but receive better health care at ICE facilities than American inmates in prison. Why release them and not remove them?

What sense does that make? Who knows, but one thing is clear: Like every policy decision revolving around this virus, it is not determined by either science or law.