Earlier: Affirmative-Action SCOTUS Nominee Ketanji Brown Jackson Is A Kritarch Of The Worst Order

While the Ketanji Brown Jackson Supreme Court nomination hearings focused a lot on her leniency with child porn cases, and whether she knew what a “woman” was, her immigration jurisprudence made a cameo appearance. Her record is not good.

The only mention of Judge Jackson in VDARE.com before she became Biden’s Affirmative Action SCOTUS nominee was in October of 2019, when she was one of three judges ruling against the Trump Administration’s efforts to enforce the immigration laws.

Washington Watcher II referred to her as “a black female federal judge (Ketanji Brown Jackson, right) in Washington, D.C., [who] blocked the government from fast-tracking deportations” [He’s The Only Trump We’ve Got—It’s Him (And Us) Against The Ruling Class, October 11, 2019].

She was one of five judges (four black and one Chinese) who were attacking immigration enforcement [Trump’s Immigration Agenda Hit With String Of Losses By Obama Judges, by Jason Hopkins, Daily Caller, September 30, 2019].

The story about KBJ was Judge bars Trump fast-track deportation policy, saying threat to legal migrants was not assessed, by Spencer S. Hsu, Washington Post,  September 28, 2019.

The “Trump Fast Track Deportation Policy” was actually Expedited Removal, a policy provided for under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)  and which we’ve been writing about here for 20 years. See Illegal Aliens? Guess What – A Solution Is Already On The Books, by Juan Mann, May 11, 2002.

KBJ’s weird theory, based on Treason Lobby filings, was that somehow Expedited Removal would be bad for legal immigrants, Green Card holders and so on. The Washington Post’s Spencer S. Hsu (cited above) wrote:

In a 126-page ruling, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia issued a nationwide preliminary injunction shortly before midnight Friday, halting enforcement of the administration’s July 23 policy widening application of the “expedited removal” program to undocumented immigrants anywhere in the country who entered over the past two years.

To repeat myself  somewhat, the fact that one judge with one injunction can block the entire Federal government from enforcing a law passed by Congress is wrong. And in fact it's a fairly recent legal development.  And it's not just me that thinks that. Notre Dame Law Professor Samuel Bray has written a lot about the "National Injunction" on the Volokh Conspiracy blog [SCOTUS reins in a national injunction: Are the days of the national injunction numbered?Reason.com/Volokh, November 9, 2019].

In 2017, Attorney General Jeff Sessions was attacked for saying he didn't think one judge "on an island in the Pacific," i. e., Hawaiian Judge Derrick Kahala Watson, should be able to endanger the whole country by blocking Trump's travel ban. Watson was eventually reversed, of course, and the Supreme Court did rein in national injunctions somewhat in 2020, but this was 2019, and Trump was still president, so Jackson was able to do this to him.

Hsu continued:

Jackson ruled [PDF] that the suing immigration advocacy groups, Make the Road New York, LUPE (La Unión del Pueblo Entero) and We Count, were likely to prevail in ongoing litigation and show irreparable harm being suffered by those they represent, including many legal immigrants and asylum seekers who could be swept up and expelled from the country without legal recourse.

“The court’s decision to stop the expansion of this process will protect hundreds of thousands of longtime U.S. residents from being deported without a court hearing and prevents the country from becoming a ‘show me your papers’ regime,” said Trina Realmuto, a directing attorney at the American Immigration Council, which argued the case alongside the American Civil Liberties Union.

The thing about “immigration courts” (they’re administrative hearings, not real courts) and “immigration judges” (they’re bureaucrats, not real judges) is that they operate like parole boards. Everyone who goes in front of a parole board is guilty. The question is: Should they be allowed out anyway?

In the same way, everyone who goes in front of  an “immigration court”  (legally the Executive Office Of Immigration Review, part of the Executive Branch, not the Judicial Branch) has already been shown to be an illegal alien. The question is: Is there some reason they should be allowed to stay anyway?

This is, by the way, also called “parole,” from the French word for “word” in the sense of “he gives his word” or “his word can be relied on” and many pro-immigration Administrations have abused it [The Pernicious Perversion of Parole: A 70-year battle between Congress and the president, by George Fishman, CIS.org, February 16, 2022].

One of KBJ’s ideas: the Trump administration should have asked for a rule making comments based on the Administrative Procedures act. This didn’t really apply, since Trump was proposing to enforce the law as already written in 1996. Her other idea: the fear of hardship for (a) legal immigrants who might accidentally get kidnapped in imaginary roundups, see above; and (b) on hardships to legally present spouses and children of illegals. This was covered at the time by the Center for Immigration Studies: D.C. District Judge Guts Expedited Removal Expansion—Based in part on DHS's failure to consider hardship Congress has already rejected, by Andrew R. Arthur, CIS.org, October 1, 2019.

Here’s an example of what KBJ was considering under hardships, from page 85 of her 126 page decision:

Amici also outline the impact that DHS’s expanded expedited removal designation could have on children and families, as “millions of people live in ‘mixed-status’ households, where one or both parents may be undocumented, while some or all of the children (and, sometimes, a spouse) are U.S. citizens.” … Amici maintain that “[e]xpanding expedited removal means that these ‘mixed-status’ families face separation with little or no time to prepare” (id.), and, indeed, according to the amicus brief, “[s]tudies show that children faced with the likelihood of a family member[’s] deportation can experience serious mental health problems, including depression, anxiety, self-harm, and regression.”²⁸ 

28 Citing Hirokazu Yoshikawa, Immigrants Raising Citizens: Undocumented Parents and Their Young Children 120-136 (2011); Capps, Implications of Immigration Enforcement Activities, at 8-9. “In one [such] study, children with deported parents refused to eat, pulled out their hair, had persistent stomachaches and headaches, engaged in substance abuse, lost interest in daily activities, and had trouble maintaining positive relationships with non-deported parents” [MAKE THE ROAD NEW YORK, et al., Plaintiffs, v. KEVIN McALEENAN, September 27, 2019].

Well, I’m all broken up about those kids with the stomachaches. Nevertheless, their problems aren’t caused by immigration enforcement, but by their parents’ law-breaking, just as in the case of the children of armed robbers, rapists, and murderers, who are separated from their convict parents.

Unlike those people, the American citizen wife of a Mexican illegal, and their American citizen children, have the option of joining their deported father in Mexico.

KBJ’s actions, and those of the other minority judges in October 2019, were an example of what we call “kritarchy”—rule by judges. Dan Cadman [Email him] of the Center for Immigration Studies made the same point in an October 7, 2019 column called The Joy of Dikastocracy at CIS.org. (Why “Dikastocracy”? Because he was literally afraid to say “kritarchy” when VDARE.com had been attacked—at length, by the New York Times and the head of the immigration “judges” union—for saying it):

Such a system of rule is variously called a "kritarchy", "kritocracy", or "dikastocracy", all terms derived from Greek to mean "rule by judges". The first reference has allegedly been coopted by white nationalists; whether that's true or not I don't know, but is a distraction in any case. The name is less significant than the phenomenon.

Like many of the judges who ruled against Trump, KBJ was reversed by higher authority. But she continued to defend her ruling when asked about it by Congress in the hearings on her Supreme Court nomination.

The Federation for American Immigration Reform reports:

…Senators Chuck Grassley (R-IA), Lindsey Graham (R-SC), Marsha Blackburn (R-TN), and John  Kennedy (R-LA) each questioned Judge Jackson about her decision in Make the Road New York v. McAleenan (2019). In that case, Judge Jackson issued an injunction to stop the Trump administration from expanding its use of Expedited Removal to the temporal and geographic bounds explicitly permitted by statute. Expedited Removal is a process, created by the Immigration and Nationality Act that allows the Department of Homeland Security (DHS) to more quickly remove recent illegal border crossers and certain criminal aliens from the United States than traditional removal proceedings.

The statute gives DHS the “sole and unreviewable” discretion to make this decision and goes further to add that the Secretary can modify this decision at “any time.” Nevertheless, Judge Jackson reviewed the action and ruled against DHS, holding that DHS likely violated the Administrative Procedures Act (APA) by skipping steps to justify the policy change, and that it failed to properly consider the policy’s impact, including failing to seek public input.

In short, Judge Jackson explained that she believed the statutory language had not exempted DHS from the APA’s procedural requirements, and her decision was an attempt to read the two statutes harmoniously. While Judge Jackson was right to consider Congressional intent and previous D.C. Circuit rulings when interpreting the statute, her expansive reading of the APA in light of the very clear language of the INA suggests a willingness to rule against agencies acting pursuant to explicit statutory authority.

Senator Graham characterized this decision as a blatant act of judicial activism. “This is an example to me, and you may not agree, where the plain language of the statute was completely wiped out by you. You reached a conclusion because you disagree with the Trump administration,” he said. “That to me is exhibit A of activism.”

Judge Jackson’s ruling was ultimately reversed. The Court of Appeals for the District of Columbia Circuit wrote, “There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgement.” Judge Jackson’s failure to properly interpret the plain language of the statute is concerning and may foreshadow judicial activism in other areas of immigration policy that lie within the sole discretion of the Executive Branch. [Emphases added, Links in original.]

[What did Judge Ketanji Brown Jackson say about Immigration in her Confirmation Hearing?, FAIRUS.org, March 29, 2022]

So what we have here is an Affirmative Action judge with no respect for the law as it’s written and a lot of respect for the “undocumented” and their problems.

And what Biden is proposing is to put her on the one court in the land where, while she may be outvoted by more sensible judges, she can’t be overruled because there is no higher authority.

You would expect Republican Senators to be fighting like demons to stop this—instead they are trying very hard not to be called racist [Ketanji Brown Jackson Hearing: GOP Senators Say They’re Not Racist By Opposing Supreme Court Confirmation, by Alison Durkee, Forbes, March 21, 2022].

James Fulford [Email him] is writer and editor for VDARE.com.