Judge Thurston's Injunction Nullifies the Rule of Law at the Border

The republic was not born yesterday, yet it retains a habit of rediscovering one of its earliest lessons, namely that ambition must be made to counteract ambition. Madison’s memorable maxim presumes that each branch will defend its own turf, but this week the executive branch was told in open court to surrender prized ground. On April 29th, Judge Jennifer L. Thurston of the Eastern District of California announced that immigration officers may no longer rely upon the very statute Congress drafted for them when pursuing unlawful entrants. Her injunction reads like a unilateral amendment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, stripping the president of tools Article II explicitly places in his hands and substituting a judicial veto where the legislature required none.

At first blush the dispute appears workaday. The American Civil Liberties Union sued Customs and Border Protection after Operation Return to Sender resulted in several dozen arrests inland from the border. Plaintiffs alleged racial profiling, coercive paperwork, and a shortage of Miranda style warnings. Judge Thurston responded with a command that CBP agents must secure a judicial warrant, or at minimum probable cause of imminent flight, before arresting any suspected illegal alien. Further, agents may not secure voluntary departures unless each migrant, duly advised by the government of every conceivable right, chooses to leave of his own enlightened accord. What seems conscientious at ninety pages turns, upon closer inspection, into a constitutional land grab.

One clause of IIRIRA is sufficient to reveal the seizure. Section 1357(a)(2) authorizes immigration officers to apprehend, without any warrant, any alien whom the officer has reason to believe is present illegally and likely to escape before a warrant can issue. Even if time allows, the statute demands nothing grander than an administrative warrant, a perfunctory sign‑off from another CBP supervisor that can be completed on a phone or clipboard before the dust of the desert settles. Notice what Congress insisted on and what it deliberately omitted. It required reason, not an affidavit sworn before a federal magistrate. It required likelihood of flight, not a clairvoyant certainty. It conferred this summary power because border enforcement often happens in places and moments where courthouse formalities are luxuries the nation cannot afford. With a single pen stroke Judge Thurston exchanged Congress’s calibrated balance for her own. She raised the evidentiary bar from reasonable belief to probable cause and, more damaging still, ordered agents to down tools, drive into town, and beg a judge or magistrate for a warrant that may be delayed or flatly refused. In doing so she transformed an on‑scene decision into a procedural labyrinth that would daunt even Hamilton’s ghost.

The constitutional theory deployed to justify this innovation is no secret. The Fourth Amendment, says the opinion, guards against unreasonable searches and seizures. Yet the Supreme Court has told us again and again that what is unreasonable one mile inland may be reasonable at the border, because sovereignty confers upon the political branches a plenary immigration power. In United States v. Ramsey, nineteen seventy seven, customs agents opened envelopes without prior warrants on the strength of that principle. The Court approved. In Department of Homeland Security v. Thuraissigiam, 2020, the Court reminded us that expedited removal, with its truncated hearings, does not violate due process precisely because Congress possesses comprehensive authority over admission and exclusion. Judge Thurston, unmoved by these precedents, insists that Fourth Amendment reasonableness requires her warrant rule. Her order therefore amounts to the following syllogism. Major premise, the Constitution bars unreasonable arrests. Minor premise, an arrest without a judicial warrant is unreasonable. Conclusion, the statute permitting such arrests is unenforceable in my district. The syllogism fails because its minor premise is historically and doctrinally false, yet its enforcement blocks the executive from executing the law until a higher court intercedes.

One need not be an originalist to see the trouble. From the first Congress forward, statutes have empowered the executive to seize vessels, smugglers, and deserters without judicial preclearance. Andrew Jackson’s famous Proclamation to the People of South Carolina denounced nullification, warning that a state cannot pick and choose among federal laws. Judge Thurston does not stand in a state legislature, but her order performs a subtler species of nullification. She dislikes the speed with which IIRIRA allows deportation, so she unilaterally slows it. She distrusts administrative warrants, so she deems them constitutionally infirm. She forgets that Congress reduced procedural protections for unlawful entrants precisely because the political branches, not the courts, must decide how porous the nation’s borders shall be.

Defenders of the ruling will protest that the Constitution is not suspended at the Rio Grande. Quite so. Due process remains, but it is process due under the circumstances. The Supreme Court’s immigration jurisprudence has long differentiated between citizens, lawful permanent residents, and aliens seeking initial admission. The last enjoy the least procedural protection, for the obvious reason that admitting or excluding foreigners is inseparable from national self government. IIRIRA codifies that hierarchy. It grants swift removal, limited review, and administrative arrest to preserve border integrity. Judge Thurston effectively elevates unlawful entrants to near citizen status by insisting that only a judge may authorize their detention. That reading contradicts the structure of the Act, the history of immigration enforcement, and the text of Article II, which vests the president with the duty to take care that the laws be faithfully executed.

Article II also vests the president with command of the executive departments. In practice this means that immigration officers are extensions of his constitutional authority, much as nineteenth century revenue cutters enforced the tariff under presidential orders. To forbid those officers from exercising powers Congress granted them is to hobble the president in a domain where his discretion is already at its zenith. James K. Polk did not consult a judge before ordering General Taylor across the Nueces. Dwight Eisenhower did not seek judicial warrants for Operation Wetback in 1954. They acted pursuant to statutes and under the mantle of national sovereignty. Judge Thurston’s rule would have rendered those operations impossible, which is precisely why the ACLU cheers it.

The order’s defenders invoke fairness. They say voluntary departure is coercive when presented by an armed agent in a green uniform. They say racial profiling demeans human dignity. They say no one should sign legal forms without a lawyer. These sentiments have surface appeal, but they are not legal arguments. They are policy preferences. A court may certainly enjoin specific misconduct if evidence shows that officers forged signatures or beat suspects, but it may not rewrite the statutory framework on the premise that its own procedural reforms are wiser than those Congress adopted. Mark Twain quipped that God created war so Americans would learn geography. Apparently He created judicial overreach so citizens would learn federalism.

The practical consequences of the injunction expose its folly. Administrative warrants can be issued in minutes by a supervising officer who knows the field conditions. Judicial warrants require sworn affidavits, docket time, and a magistrate who may sit hundreds of miles away. Every hour lost is an hour in which a fugitive can melt into the vast anonymity of the interior. Nor is the delay the only cost. The inevitable forum shopping will follow. Activists will rush to sympathetic district courts, collect injunctions piecemeal, and transform a uniform federal policy into a patchwork where enforcement is strong in Texas but impotent in California. Congress did not intend that Balkanization. It wrote IIRIRA precisely to replace the chaos of the early 90s with common national rules.

Consider also the incentives the order creates. If a migrant learns that surrendering to CBP in Bakersfield yields immediate legal counsel, robust hearings, and the low probability of swift removal, while surrendering in El Paso yields expedited deportation within 48 hours, the rational migrant heads to California. The state already groans under housing shortages and strained hospitals. Judge Thurston’s decree beckons additional arrivals and dares the federal government to keep up. Hamilton predicted as much in Federalist 73 when he warned that encroachments by one branch upon another tend to produce bad government. Here we have a judicial encroachment producing porous borders, crowded dockets, and an executive branch forced to litigate rather than legislate.

Some contend that Section 252 of the INA still allows the attorney general, now the secretary of homeland security, to detain aliens on a warrant issued by an executive official. They point to Thurston’s footnote claiming she has not invalidated administrative warrants in general, only those unsupported by probable cause. Yet the order’s operative language sweeps wider. It enjoins arrests absent a judicial warrant or a showing that the alien is likely to flee before such a warrant can be obtained. Given the inherent delays, that showing will rarely satisfy a judge predisposed against the enforcement initiative. The administrative warrant becomes a dead letter in all but name.

Nothing in the Constitution compels this outcome. The court relies chiefly on Boyd v. United States, an 1886 decision involving customs forfeiture, and on the general proposition that warrantless searches are presumptively unreasonable. It neglects Ross, Montoya de Hernandez, and the 60 mile checkpoint cases, each of which underlines the latitude accorded to the political branches in immigration matters. It ignores the explicit language of IIRIRA limiting judicial review of expedited removal to a narrow set of circumstances. It sidesteps Thuraissigiam, decided less than five years ago, where the Court upheld the very abridgment of due process that Thurston now restores. No wonder critics call the ruling result oriented.

One is tempted to ask whether the outcome would differ if Operation Return to Sender bore the imprimatur of a progressive president. Judge Thurston was nominated by Joseph R. Biden and confirmed in late 2021. Her jurisprudence, like many nominees of that vintage, reflects an academic skepticism toward executive enforcement discretion and a fashionable confidence in courts as engines of social justice. Yet the Constitution does not fluctuate with the occupant of the Oval Office. Powers that belonged to President Obama when he granted Deferred Action for Childhood Arrivals belong equally to President Trump when he instructs ICE to deport those same individuals. To approve the former while shackling the latter is to abandon law for partisan preference.

The framers supplied a mechanism for correcting statutory excess, namely new statutes. If Judge Thurston believes IIRIRA grants too much power, her remedy lies in persuasion, not injunction. She may lobby Congress to tighten standards, broaden judicial oversight, or repeal expedited removal altogether. Until then her duty, like that of all lower courts, is to apply the law as written and as interpreted by the Supreme Court. Chief Justice Marshall wrote that it is emphatically the province and duty of the judicial department to say what the law is, not what it ought to be. Thurston has ventured beyond that boundary and has trespassed upon the president’s prerogative.

What happens next is predictable. The Department of Justice will appeal to the Ninth Circuit, whose record on immigration is mixed. Should the appellate panel affirm, the solicitor general will petition for certiorari. The Supreme Court may seize the case as another skirmish in the ongoing war over immigration policy. If it does, history suggests Judge Thurston’s order will fare poorly. When the Court confronted similar attempts to micromanage executive discretion in Trump v. Hawaii and in Garland v. Aleman Gonzalez, it sided with the executive. It will likely do so again, though precious months of enforcement will have been lost.

Meanwhile the border remains in crisis. Cartels adapt faster than courts, and the migrant who slips past a distracted agent will not be mollified by the knowledge that the judiciary is safeguarding his theoretical rights. He seeks work, shelter, and anonymity. Judge Thurston’s injunction, by making apprehension less certain and removal less swift, supplies all three. The opinion therefore acts not merely upon paper but upon the ground, altering incentives and outcomes in real time. That is policy making, pure and simple. The judiciary has no constitutional warrant for it.

In his first inaugural address, Abraham Lincoln appealed to the better angels of our nature and warned that if judicial decisions irrevocably fix government policy on vital questions a single tribunal may fall prey to the people’s resentment. Our era is testing Lincoln’s caution. The public sees that a duly elected president, backed by express statutes, is thwarted by a single district judge who substitutes her program for Congress’s. Such spectacles erode respect for both law and bench. Courts gain prestige when they exercise restraint, not when they usurp the legislative compromises of a prior generation.

Ultimately the issue is not compassion versus cruelty, or rights versus xenophobia. It is authority versus usurpation. Congress wrote IIRIRA to streamline enforcement, and Article II assigns the president the duty to enforce it. Judge Thurston prefers a different allocation of power. She may not have the last word, but she has delayed lawful policy, encouraged forum shopping, and signalled to agents in the field that their statutory shield can be whisked away by judicial whim. That is overreach. It should be reversed quickly, for the sake of constitutional order, for the integrity of our borders, and for the elementary principle that judges interpret law, they do not rewrite it.

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