In the National Review last week, Andrew C. McCarthy wrote on the Supreme Court’s non-intervention in Trump v. California, the election-law dispute arising from the President’s executive order directing the Department of Homeland Security to compile lists of citizens eligible to vote, directing the Department of Justice to prioritize prosecution of voting by “ineligible persons (mainly aliens),” and directing the United States Postal Service to initiate rulemaking on coded ballot envelopes. McCarthy defends the conservative majority’s refusal to enjoin. His argument turns on a doctrine as old as the Anglo-American bench: the presumption of regularity — the principle that courts owe deference to the political branches in a constitutional system built on separated powers. He reads the order as the President exercising Article II authority to superintend the executive branch he was elected to run. He observes that, by the long practice of administrative law, a proposed rule may never produce a final rule, and any final rule may bear no resemblance to the presidential directive that prompted it. He notes that the Court has, in the same term, voided presidential tariffs, ruled against the President on birthright citizenship, blocked an attempt to remove a Federal Reserve governor, and declined to disturb a civil verdict against the President for sexual abuse — a record that demonstrates the Justices do respond when the President acts unlawfully and causes actual harm. McCarthy concludes that fidelity to the judicial role forbids acting on suspicion — that “a hypothesis doesn’t establish jurisdiction. Only actual wrongdoing does.” He reads originalism as fidelity to branch-allocated power and process, not as cover for policy outcomes. The conservative justices, in his reading, are asking whether the question is being decided by the right branch, and whether the federal judiciary has legal power to act at all. That is the doctrine in its proper exercise. The President’s order directs the executive branch. The Court refuses to preempt. The restraint is the doctrine. The branch lines hold.
The directive the Court left intact names its targets plainly. It instructs the Department of Justice to “prioritize enforcement of laws against voting by ineligible persons (mainly aliens).” Aliens are the named class. The administrative consequence is the established federal voter-fraud enforcement regime — the prosecutions, the plea offers, the indictments, the removals — turned up against the named population.
The typical body is a non-citizen who arrived in this country at nineteen. She cleaned houses. She learned enough English to answer the phone at a dentist’s office. She had two children — both born in this country, both citizens. She rented a two-bedroom apartment in a working-class neighborhood. She paid her taxes through an ITIN. She reported her earnings honestly. She had lived here seven years when federal agents walked into the dentist’s office during her shift.
She had registered to vote at the DMV in her third year. The form asked whether she was a citizen. She checked “yes.” The clerk, a county employee, looked at her papers — a work permit, a state ID — and told her everything was in order. The form was a federal Motor Voter form. It required no documentary proof of citizenship. She did not know, when she checked the box, that her status as a lawful permanent resident did not entitle her to the franchise. She did not know that a single federal checkbox, unsigned and unverified, would in seven years be the predicate of a federal prosecution. She voted in two local elections — school board, county commissioner — believing she had done what citizens do. She voted for the dentist’s father-in-law, who needed a Spanish-speaker on his dental-hygiene pamphlets. She voted in November of the next year, on a bond measure for the local elementary school. She voted once more after that. She voted three times in three years. Then she voted no more.
On a Wednesday in March, two agents from the Department of Homeland Security entered the dentist’s office during the lunch hour. They asked her to step into the back. They asked her name. They asked whether she had ever registered to vote. She said she had. They showed her the registration record. They told her she was under arrest. They handcuffed her at the office, in front of the dentist, the receptionist, and a patient in the chair. Her children’s pediatrician saw her next door and asked her children later whether their mother had been arrested. The dentist did not call her back to work.
She spent eleven months in immigration detention. The facility was a county jail under contract to ICE, in a state she had never lived in. The fluorescent lights in her housing unit were never extinguished; her body’s melatonin production fell to fragments. The mattress was a thin plastic-covered pad over a concrete slab. The meals were commissary portions — bread, processed protein, rice — insufficient to maintain body weight during the chronic cortisol exposure of indefinite detention. She lost twenty-six pounds. Her hair came out in clumps in the shower. Her blood pressure climbed to numbers that required a clinic visit. She was seen by a nurse practitioner three times in eleven months; the clinic recorded her hypertension, gave her a low-sodium tray, and returned her to her cell. She slept four hours a night on average. The lights, the keys, the footsteps of officers, the coughs and weeping of the other women in the unit — these were the sounds of her confinement. She had no access to a yard for the first ninety days. After that, an hour a day in a twenty-by-forty-foot enclosure with a concrete floor and a strip of sky.
Her children were seven and four when she was arrested. The bond hearing was set three times; each time the government opposed release on the ground that she was a flight risk and a danger. Each time the Immigration Judge denied bond. Her sister, who lived three states away, took the children. The children were driven to her sister’s house by their father — a man she had left when the youngest was two, after he broke her jaw and her ribs in a single evening. The children’s father had visitation rights he had not exercised in three years. He exercised them now. He brought the children to his mother’s house, and his mother drove them to the sister. The children did not understand. The seven-year-old stopped speaking for six weeks. The four-year-old began wetting the bed. Her sister sent photographs. The seven-year-old had lost two teeth. The four-year-old had started kindergarten and cried every morning at drop-off. She saw her children once in eleven months, through a glass partition, on a Tuesday in October, when her sister drove them to the detention facility and the children sat on either side of a phone handset pressed to the glass and told her about school. The visit was thirty minutes. The visit ended with the four-year-old pressing both palms against the glass and screaming.
She was charged under 18 U.S.C. § 1015(f) and the parallel state statute. Her criminal case resolved in a conviction. Her immigration case resolved in a removal order. Her petition for withholding of removal was heard by an Immigration Judge in the seventh month of her detention. She testified in Spanish through an interpreter. She named her ex-partner by name. She described the evening he broke her jaw and her ribs; she described the prior year of escalating violence — the strangulation, the threats to kill her if she left, the threats to her family. She described how she had fled to this country after he told her, in front of their infant son, that he would find her in any country and bring her back in a box. She described the police reports she had filed in her home country and the response she had received — nothing, or worse than nothing, because her ex-partner’s family included a serving officer. She described the night she crossed the border. The Immigration Judge declined to credit her testimony. The judge cited minor inconsistencies in the sequence of events — the date of one incident, the time of another — and found her account not credible on demeanor grounds. The judge found that the country-conditions evidence in the record did not establish a particular social group or a pattern of persecution of similarly situated persons. Withholding of removal was denied. Her appeal was denied by the BIA in the ninth month of her detention. Her removal order became final.
She was removed in February. The plane was a removal flight operated by ICE Air Operations. Her wrists and ankles were shackled for the duration. The shackles were steel. They left marks on the skin of her wrists that did not heal for weeks. The flight made one refueling stop. She was escorted through the airport in a chain of detainees in identical restraints. When the plane landed, she was handed to the custody of the receiving country’s immigration authority. Her identification documents were returned to her. Her children’s photographs — she had carried three, in a plastic sleeve that the detention facility had allowed her to keep — were returned to her. The handcuffs were removed. She was released onto the apron of the airport, in a country she had fled at nineteen, in a city she had not seen in eleven years. She had forty dollars. She had the phone number of a cousin who had agreed to take her in for as long as needed. The cousin’s husband answered. The cousin was not home.
She went to the cousin’s house. The cousin’s husband let her sleep on a couch. The cousin came home the next morning from her shift at a maquiladora. She was twenty-eight years old. She had been gone eleven years. She had been gone long enough that the city had changed and she had not. She found work cleaning offices. The dentist had been willing to testify on her behalf in immigration court; he did not know she had been removed until her sister called him in March. The cousin’s husband told her in the second week that her ex-partner had been asking about her. The cousin’s husband had been approached at a gas station by a man he did not recognize, who said he was a friend of the family and only wanted to know whether she had come back. The cousin’s husband said nothing. He told her that night. She moved to a different cousin’s house the next morning. She moved twice more that month. She changed her phone number. She stopped taking the same route to work. In the fourth week of her return, she was followed home by a man on a motorcycle. She saw him the next day outside the maquiladora. She saw him again the next week, at the corner store, leaning against a blue sedan with a cracked windshield that she recognized because it had been parked outside her parents’ house the night she fled. She did not go to the police. She had been to the police before. She called her cousin. The cousin came and got her that night. She left the city in the back of a produce truck. She was taken to a coastal town where she did not know anyone. She was taken in by a woman who ran a small restaurant. The woman’s brother knew people in the next town over. The woman’s brother could get her across the northern border. The cost was seven thousand dollars, paid to a man she never saw. The woman’s brother said it would take two months. She waited two months. She waited two more. She heard nothing. In the seventh month of her return, she stopped waiting.
Her sister in this country received a single phone call in the eighth month after removal. The cousin, calling from the coastal town, said she had not come back from work one day. The cousin had gone to the restaurant. The cousin had been told by the woman’s brother that she had been taken across the border “the week before.” The cousin did not know where. The cousin had no further information. Her sister called the consulate. The consulate told her that without a current address, they could not register a welfare-and-whereabouts request. Her sister called the dentist. The dentist wrote to his congressman. Nothing came back. Her children — now eight and five — were told by the cousin on a video call that their mother was gone. The eight-year-old did not speak for three weeks. The five-year-old began sleeping in the sister’s bed. The removal order has been executed. The branch lines hold.
She is the representative case in the federal docket: a non-citizen who voted in good faith, prosecuted for the act, detained, separated from citizen children, removed to a country where her safety is not assured. The DOJ’s prioritization direction multiplies her case across the docket. Federal prosecutors in jurisdictions that had deprioritized voter-fraud prosecutions against non-citizens are instructed to bring them again. U.S. Attorneys’ Offices open dedicated units. The volume of indictments rises. The immigration-detention population rises with it. The removal orders follow.
The bodies that follow from this prioritization are non-citizens held in detention facilities operated by the same Department the President directs. They are children placed in kinship care because their parent has been removed. They are petitioners before Immigration Judges whose dockets are swelled by the prioritization. They are respondents whose credibility is assessed by judges who have read the directive and understand what the Executive wants. The enforcement regime is the consequence of the directive; the directive is what the Court declined to enjoin; the Court’s restraint is what permits the regime to continue. The harm is grave: criminal conviction, detention measured in months, permanent family separation that does not end at the bond hearing, removal into the country from which she had fled, and disappearance after the return. These are the material consequences the prioritization visits on the named class.
The directive names a class. The class is aliens. They stand outside the covenant of citizenship by definition — by birth, by naturalization’s absence, by the long Anglo-American tradition that suffrage is the privilege of membership. The Constitution does not promise the vote to those who have not been admitted to the polity; it does not promise them federal solicitude when they have, by their own act or by a clerk’s, attempted to claim it. The President’s directive is the Executive reading its own jurisdiction: enforce the laws Congress wrote; prioritize the enforcement Congress authorized; direct the officers who carry it out. That is what Article II vests. That is what the oath of office requires. “The magistrate,” Paul writes, “is God’s servant for your good” — but the magistrate’s good is the good of the citizenry he serves, not the good of those who stand outside it. The branch lines are the architecture of ordered liberty.
The non-citizen is sorted outside. Her papers were not in order. Her presence in the polity was probationary; her act of voting was a transgression of the boundary; the enforcement regime is the boundary’s vindication. The detention, the separation, the disappearance are the visible verdict on standing. The hard wall stands.
The Court’s restraint is fidelity to the branch allocation. The aliens are the Executive’s concern when the laws are applied. The branch lines hold; the sort holds; the standing holds.