Trump-Appointed Judge Rules NOT To Allow Challenge To Biden’s 30K Per-Month Migrant 'Parole' Program

P. Gardner Goldsmith | March 11, 2024
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On March 8, an ebullient Department of Homeland Security (DHS) “Czar” Alejandro Mayorkas tweeted that the Biden Administration will add to the 30,000 migrants per month from four select nations it already has given two-year “paroles” to stay, despite them breaking federal immigration statutes.

You read that right. The man charged with running the unconstitutional DHS and handling the collectivist, unconstitutional federal immigration statutes just openly celebrated giving passes to the people who broke the statutes he is supposed to enforce.

And if you think that’s absurd, get this, he celebrated because a Trump-appointed judge refused to hear plaintiffs’ arguments to stop the process.

Jason Cohen offers key details over at Daily Caller:

“The parole program enables up to 30,000 migrants from Cuba, Haiti, Nicaragua and Venezuela (CHNV) to enter the United States every month and stay for up to two years, according to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (USCIS). Texas and 20 other Republican-led states sued the administration over the program, which U.S. District Judge Drew Tipton dismissed, ruling that the plaintiffs failed to demonstrate how they have been ‘injured’ under the policy.”

Tipton denied the complaints from those 21 state offices because he claimed they did not have standing. They have to show “injury” in order to challenge the policy.

Which is ironic, given that no political entity can, on any tortious level, really show “harm” because no political entity is a person. On the constitutional level, however, where state attorneys general are supposed to be able to turn to the Congressionally-created federal court system to protest an interstate or federal-vs-state dispute, one would think that a breach in federal statute, or a lack of Executive Branch enforcement of federal statute, would be cause enough for any state government to cry foul in court.

The policy in question, called the CNHV Humanitarian Parole Program, actually stems from an arbitrary April, 2022, Biden Administration “policy” move to grant non-citizens from Ukraine the ability to live in the US without being deported or arrested. As the Justice Action Center’s LitigationTracker notes:

“In October 2022, DHS created a similar process for Venezuelans; then on January 5, 2023, that process was expanded to include nationals of Cuba, Haiti, and Nicaragua.”

This activity, itself, was based on the Biden Administration’s interpretation of a 1952 statute called the “Immigration Nationality Act” which, though it doesn’t specifically do this, has been interpreted by the Bidenistas as giving him and the DHS Secretary (a position that obviously did not exist in 1952) wide leeway to open or close immigration doors to large numbers of people from any nation-state the administration in power chooses.

Meaning that, since the establishment of this policy, an aggregate of 30,000 people PER MONTH from those nations can be granted “parole” by the DHS.

Related: Biden Is Challenging Texas in the Supreme Court Over Illegal Immigration

The lead in the charge against the policy was the state of Texas, but Judge Tipton not only found that the state did not have standing as having been “injured,” according to LitigationTracker:

“In fact, the court emphasized that Texas did not and cannot dispute that following the implementation of the CHNV (Cuba, Haiti, Nicaragua, Venezeula) parole programs, there are fewer CHNV nationals entering the U.S. and that as a result, Texas is spending less money, not more.”  

Thus, the judge is allowing the feds to welcome 30,000 more migrants per month and also allowing the feds to prevent states from citing them as illegal immigrants for up to two years.

And it is at this point that any conservative or other person who calls himself a “constitutionalist” might want to bring up what I try to stress to students and to readers at MRCTV:

The US Constitution leaves the matter of immigration to the states and does not even contain the word “immigration” or the word “immigrant.”

As I wrote for MRCTV in January, the Constitution and the history are clear. Texas and the other states are supposed to be able to handle the immigration issue on their own, without federal interference or federal policies bringing people in.

Many Americans conflate the power in Article One, Section Eight, granting the Congress ability to create a rule of naturalization, with the power to create a rule over immigration. Naturalization is, of course, how visitors become American citizens, not whether visitors can be on the soil of any U.S. state.

The only passage of the Constitution from which one might infer a link to immigration is in Article One, Section Nine, which reads, in part,

“The Migration of Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one-thousand-eight-hundred-and-eight…”

This provision tells readers that, prior to 1808, Congress could not write laws regarding migration of "certain people" into any of the original 13 states from outside the U.S., or from other states in the union. The wording pertained to slave importation, and meant that, unless the Constitution were amended, Congress did not have jurisdiction over importation of slaves in the original states until after 1808, and that it had no power to control the importation of slaves into any new state. 

This was reflected in policy shortly thereafter, when the Missouri Compromise was achieved. The Compromise codified the process for admission of states from the territories of the Louisiana Purchase. The new northern “free states” and new southern “slave states” would alternate admission, keeping what many politicians believed would be a balance between “slave” and “free” states for representation. 

If the federal government could block importation of slaves into states beyond the original 13 (the horrible practice of slavery can be explored in a different piece), then there would be no need for the Missouri Compromise, because Congress could block the importation of slaves into those new “slave” states, making them de facto “free” states and shifting even more population-based “representative” power to the north.

The Founders understood that immigration was not a federal power. Thomas Jefferson said so himself in his 1798 Kentucky Resolution Number Four, which was a slap at the Alien Act pushed by then-President, John Adams:

“IV. Resolved, that alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that ‘the powers not delegated to the United States by the Constitution nor prohibited by it to the states are reserved to the states respectively or to the people,’ the act of the Congress of the United States passed on the 22d day of June, 1798, entitled ‘An act concerning aliens,’ which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.”

In fact, Texas’s state constitution, approved in 1869, included an article establishing a “Bureau of Immigration” in it.

If the people of Texas believed Congress had the power to control immigration, why would they bother creating their own Bureau of Immigration?

The answer is that Congress did not have such an enumerated power, and the only reason contemporary Americans fight over what the feds “should do” at the border is because of a 1875 Supreme Court ruling in the case of “Chy Lung v. Freeman” which was a challenge to a California statute imposing a charge on boat-owners who were facilitating ingress to Chinese women (seen as likely prostitutes by the politicians). With the ruling, the Justices simply made up federal immigration control, saying, in part, this errant nonsense, which easily can be refuted by actually reading the Constitution:

“The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.”

This led to federal passage of the Page Law that same year, a statute that restricted lower-price Chinese immigrant labor, and established from that point on that the states would suffer the loss of their constitutionally granted power over immigration. 

These are the facts, and they are essential rounds of intellectual ammunition for those who are interested in understanding this new legal loss for Texas and the other state AGs.

If they want to call themselves “constitutionalists,” people on any side of this migration debate ought to be honest about the so-called “rules” and how they have been corrupted by people like Biden and Mayorkas.

And a federal JUDGE ought to know better, as well.

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