The administration now thinks Barr can invalidate a court decision. In a case just out, Barr believed the court ruling was wrong, and thus the administration relied on Barr’s decision to do what it wanted, ignoring the ruling. The action stunned the appellate court.
The case at issue is a complicated one, involving the interplay between the rules that apply to an immigrant fighting to stay in the United States, the ruling of an Immigration Judge (an administrative law judge, part of the immigration system) , the DHS lawyers which prosecute immigration cases, the Department of Homeland Security, William Barr – Attorney General, and the United States 7nd Circuit Court of Appeals, “real judges,” Article 3 judges, one step below the Supreme Court.
Though the case itself is complicated, the problem with the case is not. The Seventh Circuit ruled against DHS. Despite the court’s ruling, the DHS relied upon a letter by Bill Barr stating that the judges were wrong and DHS went ahead with what they wanted. The decision is here [1]: and the following is from the Seventh Circuit Court’s opinion upon learning of DHS’s decision:
What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility…. Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez Sanchez has filed a second petition for review. We have never before encountered defiance of a remand order, and we hope never to see it again.
This is what fascism looks like.
Once the executive branch – the presidency – decides it can say that a court is just “wrong,” and ignore the order, the constitution is irrelevant and so is the rule of law. The law is whatever the administration says it is at any time.
But in this case, the person hurt by the DHS Board decision took the matter right back to the same appellate court – which wrote the above. Additionally, the appellate court no longer trusted the Department to issue an order in accordance with the ruling. The court made the order itself:
The petition for review is granted, and the Board’s decision is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, which grants Baez-Sanchez a waiver of inadmissibility so that he may seek a U visa from the Department of Homeland Security.
As wonderful as it is to see the courts of the United States stand up to the Trump administration, Homeland Security and the Barr bangers, it is absolutely terrifying that Homeland Security and DOJ had the audacity to even try such a thing. The appellate court had “never seen it before,” and yet one fears that the courts may yet see it again.
Imagine what other judicial orders this president might be prepared to ignore, counting on the Senate to back him up. He will likely have already survived one impeachment. It is only going to get worse.
I swear, this administration is not giving up power at any point without a fight like no other.
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Peace, y’all
Jason
[email protected] and on Twitter @MiciakZoom