\n\n“No one has ever elected Matthew Kacsmaryk to anything.<\/p>\n\n\n\n
Kacsmaryk, whom former President Donald Trump appointed to the federal bench in 2019, was previously a lawyer for a Christian right law firm. He once claimed being transgender is a \u201cmental disorder\u201d and that gay people are \u201cdisordered.\u201d<\/a> He\u2019s also one of the most powerful immigration officials in the country, having successfully wrested control of much of America\u2019s border policy<\/a> away from the man Americans elected president in 2020.<\/p>\n\n\n\n With the Supreme Court\u2019s blessing, Kacsmaryk ordered President Joe Biden\u2019s administration to reinstate Trump\u2019s \u201cRemain in Mexico\u201d policy, which requires many asylum seekers who arrive at the United States\u2019 southern border to stay in Mexico while they await a hearing.<\/p>\n\n\n\n Even if you ignore the moral implications of reinstating such a policy, there are good reasons to doubt<\/a> that the policy is a good use of America\u2019s limited border security resources. And Kacsmaryk\u2019s decision is also unlawful for numerous reasons.<\/p>\n\n\n\n One of the most important reasons is that it upends the balance of power between the president and unelected judges. Reinstating the Remain in Mexico program requires the Mexican government\u2019s cooperation \u2014 which means that Kacsmaryk ordered the United States to change its diplomatic stance toward Mexico. And that\u2019s despite decades of warnings from the Supreme Court that judges should be \u201cparticularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs<\/a>.\u201d<\/p>\n\n\n\n Kacsmaryk\u2019s decision, and the Supreme Court\u2019s decision to stand with Kacsmaryk against President Joe Biden<\/a>, is one of the most dramatic examples of the Republican-controlled federal judiciary’s many conflicts with America\u2019s Democratic president. But it\u2019s hardly an isolated incident.<\/p>\n\n\n\n In just four years as president, Trump remade the federal judiciary<\/a> \u2014 all with a big assist from a Senate Republican leader willing to break any norm<\/a> in order to ensure GOP control of the courts. Trump appointed a third of the Supreme Court and nearly a third of all active appeals court judges. He also peppered federal trial courts with conservative activists like Kacsmaryk, who are eager to overturn some of the most fundamental assumptions of US law.<\/p>\n\n\n\n Nearly one year into Biden\u2019s time in office, the result hasn\u2019t exactly been a bloodbath for his policies \u2014 in contrast to the seemingly never-ending array of lawsuits<\/a> seeking to repeal Obamacare, no federal judge has yet tried to repeal Biden\u2019s major legislative accomplishments such as the American Rescue Plan<\/a> or the Infrastructure Investment and Jobs Act<\/a>. But in two areas in particular, immigration and public health<\/a>, the courts have been unusually aggressive.”<\/p>\n\n\n\n …<\/p>\n\n\n\n “if the Supreme Court wanted lower-court judges to stop ignoring precedents that permit President Biden to govern, it could intervene to stop them from doing so. Instead, it has rewarded many of the most aggressive conservative innovators within the judiciary.”<\/p>\n\n\n\n