A reporter asked Donald Trump this morning why, after all of his rhetoric, he didn't close the border like he said he would. The president replied:
"Because Mexico has been absolutely terrific for the last four days. They're apprehending everybody.... It's really good."Now, Congress has to act. They have to get rid of catch and release, chain migration, visa lottery. They have to get rid of the whole asylum system because it doesn't work. And, frankly, we should get rid of judges."
On the first point, the idea that Mexico is suddenly implementing policies that the White House likes is odd: according to Mexican officials, nothing's changed. By all appearances, Trump is playing make-believe in order to justify the latest example of him talking tough before caving.
But it's that second point that probably raised the most eyebrows. Any time an American president says we should "get rid of judges," it's going to cause a stir -- especially when that president is known for his authoritarian tendencies.
The trouble is, it's easy to misinterpret what Trump is trying to say. Indeed, the Republican made the same argument earlier this week -- "To be honest with you, you have to get rid of judges," he said -- and that was misunderstood, too.
As we discussed the other day, Trump hasn't gone into a lot of detail, but in context, he almost certainly wasn’t referring to sitting Article III jurists serving lifetime positions on the federal judiciary. Rather, I’m reasonably sure the president was referring to immigration judges -- whom he apparently wants to fire.
The trouble is, that's bad, too. As the Washington Post’s Greg Sargent noted, “This is akin to declaring that we must end due process for asylum seekers, and with it, our international humanitarian commitments on this front.”
That’s absolutely right, though I’d add one related thought: the Trump administration’s position had long been that we need more immigration judges, not fewer, which means the president keeps denouncing his own team’s agenda.
As regular readers may recall, the Trump White House called on Congress to approve funding for hundreds of additional immigration judges in order to expedite the legal process at the U.S./Mexico border.
The president, apparently unsure what immigration judges are, later reversed course and expressed bewilderment that “they” – he didn’t say who – want more immigration judges, which Trump said would invite “graft” and corruption.
Current immigration judges were reportedly “shocked” and “dismayed” by the president’s criticisms, which was understandable, since his rebukes were nonsensical.
Whether the president understands this or not, immigration judges are not part of the judiciary – they’re part of the Justice Department; they are appointed by the attorney general; and unlike Article III judges, they’re not confirmed by the Senate.
“Getting rid of” of them would both wreak havoc on the existing system and would undermine due process. If Trump wants to make the case that it’s a course worth pursuing anyway, I’m eager to hear the argument. So far, he hasn't made it.