Biden Judge in New Orleans Latest Recipient of Dishonorable Judicial Conduct Award

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The third judge, Biden appointee Dana Douglas, ignored the law and did her own thing. We began the Dishonorable Judicial Conduct Award for judges who refuse to follow the law and instead twist it, or ignore it altogether, to achieve the policy outcome they want. Judge Douglas has earned the next one.

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The relevant statute, 8 U.S.C. § 1225, a reform passed in 1996, is crystal clear. An alien who “is not clearly and beyond a doubt entitled to be admitted … shall be detained” pending his removal proceeding. Not “may be” or “might be” or “possibly be,” but “shall be” detained. Not to put too fine a point on it, but “shall” means shall.

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Despite this change in the law, prior administrations of both parties failed to enforce it and continued to provide bond hearings to aliens who were not entitled to them. As the Fifth Circuit majority pointed out, “successive presidential administrations” ignored the “shall be detained” language.

But that changed with the Trump administration. In plain English, the fact that prior administrations failed to detain or deport an illegal alien doesn’t mean aliens should now be considered “admitted” to the U.S. with lawful status.

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How, you might ask, did Douglas justify ignoring the plain language of the statute? The fact that the statute “has never been applied in this way” by the government and that the “overwhelming majority of courts in this circuit and elsewhere” don’t support “the government’s position,” she wrote, means it should be ignored now.

No, she really wrote that. Her argument is that because the government previously declined to enforce a law as it is written, it is now somehow prohibited from doing so going forward. And she believes the government’s past enforcement negligence apparently gives her license to create a provision requiring a bond hearing that Congress not only did not put there but explicitly rejected.

In her final paragraph, Douglas objects that the government’s position “would mean that, for purposes of immigration detention, the border is now everywhere.” Welcome to reality, Judge Douglas.

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Still, the Fifth Circuit majority did their judicial due diligence, examining the “relevant provisions and structure of the” 1996 law, as well as its “statutory history, and Congressional intent.” Congress, they said, meant exactly what Congress clearly said in the statute; no bond hearing is required, and the government can detain illegal aliens without one.

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