When the law speaks plainly, let it speak

I have always held that the rule of law — not the rule of men, and certainly not the rule of preference — is the foundation upon which any republic must rest. A nation that bends its statutes to suit the politics of the season has not repealed those statutes; it has only taught its citizens that law is a performance, not a compact. The Supreme Court, as National Review reports, has now affirmed that when Congress explicitly strips the federal courts of immigration jurisdiction, that instruction binds all judges — progressive or otherwise.

This is not a partisan observation. I would say the same if the shoe were on the other foot, and I ask the reader to receive it in that spirit. No judge — however sincere in conscience, however persuaded of the justice of a particular outcome — is authorized to manufacture jurisdiction that Congress has deliberately withheld. That is not courage on the bench; it is the substitution of individual will for collective law. A government of laws tolerates that substitution in no officer, however elevated.

The underlying immigration question is, I am told, genuinely contested — touching on the rights of individuals, the interests of communities, and the obligations of a sovereign nation to regulate its own borders. I hold no settled view on where precisely those lines should fall; that is a matter for the legislature and, ultimately, for the citizenry to resolve. But the method by which such questions are resolved matters enormously. If judges reach the outcomes they prefer by claiming powers Congress denied them, we have not settled the immigration debate — we have merely relocated it to the least accountable branch.

Faction, in my judgment, is the great slow poison of free government. It corrupts not only elections and deliberation, but courts as well — when partisans on either side begin to evaluate a judicial ruling not by its legal reasoning but by whether it pleases their coalition, the judiciary loses the only currency it possesses: public confidence in its impartiality. The Court's ruling, if I understand the reporting rightly, does not resolve who may stay and who must go. It resolves who decides, and that is a prior and more important question.

I counsel the citizenry to resist the temptation to cheer or condemn this ruling based solely on its immediate policy consequences. Ask instead the structural question: do we want courts that read their jurisdiction as written, or courts that expand it whenever they find the cause sufficiently worthy? The latter principle, adopted fully, leaves no limit on judicial power at all. A republic that cannot enforce its own statutory boundaries is a republic that has quietly surrendered its self-governance — and that surrender, once habitual, is extraordinarily difficult to reverse.