There is a guaranteed applause line in Lin-Manuel Miranda’s hit musical about the life of Alexander Hamilton. The Caribbean-born title character, still just a lieutenant colonel in the Continental Army, and the Marquis de Lafayette, a Frenchman fighting for American independence, rhapsodize about their influence and effectiveness at the Battle of Yorktown: “Immigrants, we get the job done!” The crowd at Broadway’s Richard Rodgers Theater typically goes wild. Most nights since November’s election, the applause takes the form of a standing ovation. However, Miranda and his audience may not have as firm a grasp as they think on Hamilton’s views of judicial power, especially as it applies to immigration law.
Whatever your opinion of President Trump’s recent executive order banning refugees from seven countries, the subsequent protests and judicial response raise important questions about how the law in general is designed to work and the role of the courts in ensuring that it does. Hamilton believed that crowds—those who cheer at Broadway musicals, demonstrate at airports, or salute poorly attended inaugural addresses—threatened the stability of the law. Judges were granted life tenure specifically so that they could resist the political pressure of the mob. In Federalist 78, Hamilton wrote that lifetime appointments would provide members of the judiciary with an “excellent barrier to the encroachments and oppressions of the representative body . . . . And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”
It must be painful for Democrats and immigration advocates to have the full power of executive authority suddenly turned against them and their interests. The National Immigration Law Center—one of many advocacy groups protesting Trump’s executive order—still has posted on its website an information fact sheet explaining that the president has “broad authority” when it comes to immigration law. Posted in 2014 to support President Obama’s use of unilateral action, the fact sheet reads like a permission slip for Trump’s order from this past week.
We have become a nation obsessed with outcomes. When it comes to the law and how it functions, however, the national discourse could do with more focus on process. The courts should be evaluating whether the president—any president—has the power to regulate immigration through executive order. Too often, court decisions hinge upon whether a particular judge likes a particular exercise of that power. Liberals and immigration advocates are applauding U.S. District Court judge Ann M. Donnelly’s Saturday night decision, staying President Trump’s executive order. Few, if any, seemed bothered by President Obama’s 2014 executive order halting deportations and legalizing the status of many undocumented immigrants.
“There is no liberty,” Baron de Montesquieu wrote in The Spirit of Laws in 1748, “if the power of judging be not separated from the legislative and executive powers.” The French political philosopher, influential to the revolutionary generation of 1776 and the framers of the U.S. Constitution that eventually followed in 1787, might be surprised by the situation in American jurisprudence today. In far too many cases, the judiciary has essentially become both legislature and executive.
It’s no knock on immigrants to say that a nation should have an immigration policy, and that the policy should not be the sole province of one elected official, acting alone. It would be grand if Congress could reestablish its legislative function in this area. But if the judiciary could reestablish its immunity to the pressures of popular political opinion, a playwright might one day say, “Judges, they get the job done!” That’s a line that would be worthy of applause.
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