Trump has a secret weapon to defeat activist judges on immigration

Fox News

14-05-2025

The Harvard Business Review found that two-thirds of good strategies fail due to poor execution. The same is true in politics. The Trump administration has bold immigration policies, but they are being smothered under an avalanche of lawsuits. Denouncing activist judges only gets you so far. Ultimately, you just have to be smarter.
The administration should use what it can control as leverage over what it cannot. The president is at the apex of his power in deciding which foreigners to admit. This is true from both a legal and practical standpoint. He should issue a proclamation under 8 U.S.C. 1182(f) declaring that no new immigrants will get in until everyone who should be deported is gone.
It is a drastic solution. It is also the only thing that will work because liberal activists, rogue bureaucrats and complicit courts, refuse to honor Congress's sensible policy bargains.
For example, it is obviously irrational to import welfare cases. That is why, since 1882, the Immigration Act has prohibited anyone who is "likely at any time to become a public charge" from getting a green card. Yet, 54% of immigrant-headed households are on at least one form of public assistance. Today, over 11% of welfare benefits are claimed by immigrants who were admitted on the explicit premise that they would never claim welfare.
How is this possible? Bureaucrats subverted Congress's intent by interpreting the law narrowly. They insist it applies only if the alien is "primarily dependent" on the benefit and it is paid in cash, meaning taking Medicaid, public housing or food stamps does not count.
Merely enforcing the public charge ban would save at least $109 billion per year. But even modest attempts by the first Trump administration to restore the original meaning of the law were tied up in court for years and then abandoned by the Biden administration.
There is no legislative fix either, because activists will subvert the new law just as they did the old law. This is not speculation, it was tried.
In 1996, Congress passed an immigration reform package which requires family-based immigrants, 68% of the total, to obtain affidavits of support from a sponsor. The sponsor agrees to maintain the applicant at 125% of the poverty line and to reimburse the government if the immigrant winds up on welfare. Applicants without an affidavit are automatically disqualified.
This seemed like an excellent way to deter welfare cases from immigrating and to reimburse the government if any slip in. Again though, activists subverted the will of Congress with narrow interpretations and inaction.
The implementing regulations do not require welfare agencies to sue, and using an expensive benefit like Medicaid does not require reimbursement. So, in practice, there are "few documented cases" of the government ever suing sponsors to recover taxpayer funds and deter reckless sponsorships.
Another way the bureaucracy frustrates enforcement is by hiding data. A DHS study found that 70% of asylum applications were either fraud or suspected fraud. The Obama administration did not release it, until a whistleblower testified to Congress. Asylum is one of the major ways that illegal aliens fend off deportation. Over 1 million claims were filed in 2023. Voters pity asylum seekers, unaware it's mostly a scam.
Clearer laws? Useless. Activists will always invent some sophistry to defy even the tightest drafting.
Consider the Temporary Protected Status (TPS) program. Congress struck a clear deal: TPS could shield foreigners from deportation during crises, but in exchange, courts were barred from reviewing decisions to end it. The law explicitly states "no judicial review" for terminations. Yet, a judge blocked Trump from canceling TPS for 350,000 Venezuelans granted relief by Biden.
The only solution is to shut the border until the people we want out are gone. This will force activists to choose between helping criminals stay in the country and reopening the gates.
It's also easier legally. It's well-settled that foreigners living abroad cannot challenge a visa denial because admission is a privilege, not a right. Even when denying their entry would burden the rights of a U.S citizen, the government need only articulate a "facially legitimate" justification to prevail. A mere statutory citation suffices, and Trump holds an ace.
Eight U.S.C. 1182(f) authorizes the president to "suspend the entry of all aliens," or class of aliens, if he finds their entry would be "detrimental to the interests of the United States."
It is detrimental to America's interest to admit more immigrants when our mechanisms for filtering out welfare cases and asylum fraud are so broken. It might not be so bad if we could quickly fix mistakes, but it now takes forever to deport anyone.
The 1182(f) authority is crystal clear. Every president since Ronald Reagan has invoked it at least once. The Supreme Court rejected a challenge to it in 2019, noting that it "exudes deference to the President." Recently, a district court opined the law "would certainly seem to authorize the President to close the border to arriving aliens" if it became apparent that the influx would overwhelm government facilities.
Activists will still sue, but the government can demand a prohibitive injunction bond by pointing to the welfare costs and the mandatory language of Rule 65(c). Also, it is well worth litigating because once a blanket pause is upheld, President Trump has a policy nuke.
Another way the bureaucracy frustrates enforcement is by hiding data. A DHS study found that 70% of asylum applications were either fraud or suspected fraud.
In the meantime, all final decisions about whether to grant immigration benefits should be made by Homeland Security Secretary Kristi Noem herself. Currently, the secretary delegates that authority to immigration officers, but Congress gave the power to her. Simply rescinding those delegations will slow immigration to a trickle while following the law to the letter.
Strong medicine, yes. But after decades of activist sabotage, it's the only cure.