The Bounds of Their Habitation

With the discipline proper to the bar, Andrew C. McCarthy records in National Review what the metropolitan press chose not to print: the Supreme Court, on the first day of its new term, has reminded the lower courts that Congress may withdraw a question from the judicial power, and that a judge who rules upon a question taken from him issues not a judgment but a contumacy. The Supreme Court Lays Down the Law on Immigration is brief because the point is brief. The statute, 8 U.S.C. §1254a(b)(5)(A), is one sentence: “There is no judicial review of any determination of the Secretary of Homeland Security with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”

The sentence is not difficult. Temporary Protected Status is an act of executive mercy by which the political branches permit otherwise removable aliens to remain — not a right, not a liberty, not an entitlement the courts protect. The Constitution commits foreign policy and the national security to the President and the Congress. The judiciary has no commission to conduct foreign affairs from the bench, and it has no jurisdiction to review a determination the statute places beyond review. When the Court granted certiorari in Mullin v. National TPS Alliance and vacated the judgment of the Ninth Circuit for reconsideration in light of Mullin v. Doe — where Justice Alito had already said that the text of the bar is clear and its plain meaning is very broad — the Court did not endorse the Secretary’s policy. It did a smaller and more important thing. It enforced the boundary that makes a government of laws a government of laws.

The objections to the Court’s order are the objections of judges who mistake their preferences for their commissions. A district judge in San Francisco called the Secretary’s decision “unprecedented” and “predicated on negative stereotypes.” A Ninth Circuit panel of two Biden appointees and a Clinton appointee announced that the executive could not reverse a designation extended by the previous administration. None of this is law. The statute does not say “no judicial review unless the judge disagrees.” It does not say “no judicial review unless the designation is recent.” It says there is no judicial review. The word “temporary” in Temporary Protected Status carries meaning as well: the Somali designation has now run thirty-five years, the Venezuelan designation is the largest in the program, and an outgoing administration extended it on its way out the door precisely to bind the hands of its successor. TPS is the sovereign’s alms. The sovereign has revoked the alms. The only question before the Court was which branch of the government may close the hand — and the Constitution had already answered it.

It was in the same week that the Court announced its order, in the undecorated language of a routine disposition, that a woman named Mariana — the name is representative, the facts are the design — received the letter in the two-bedroom apartment in Houston where she has lived since the designation was first granted. She is thirty-four, from Maracaibo. Her son Alejandro is seven and has Type 1 diabetes; the insulin vials stand in the refrigerator door. The Secretary of Homeland Security had signed the termination of the designation. Immigration and Customs Enforcement officers arrived at the hour the officers always arrive, when the men who might resist are asleep or at work, and they handcuffed the mother at the wrists behind her back and told the boy to put on his shoes. The mother had hidden a vial and syringes in the lining of her bag. The officers found them at the screening table and took them. They did not take the insulin from the refrigerator. The manifest did not include a cooler.

The return flight to Caracas is five hours. At Simón Bolívar International Airport, the officers of the Bolivarian National Police met the jetway, and the family passed into the country whose “dire conditions” Congress itself had recited when it first asked the Secretary to exercise mercy — the hospitals without water, the pediatric wards without insulin, the clinics where the electricity fails in the middle of a surgery, the security services that receive returning citizens at the airport and do not always ask their names twice. In the first week the child’s blood sugar climbed, from the heat, from the changed food, from the vials running low. The mother carried him to the public hospital, where the doctor wrote a prescription for insulin and the pharmacy could not fill it. The boy vomited in the stairwell. His breath began to smell of acetone. His breathing changed from the breathing of a child to something shallower — the breath of a small body consumed by its own sugar because the medicine is not there, because the order has been restored, because the bounds of his habitation were never Houston.

Airport holding cells held the rest of the same manifest, from the largest class in the program: the stroke patient whose dialysis had been scheduled at a Houston clinic, the grandmother whose hypertension pills were taken at the screening table, the families whose American-born children sat in the holding room practicing the alphabet of a country they would now have to learn. The officers processed them by the numbers the statute permits. Not one of them was unknown. The Secretary’s signature had listed them; the officers delivered them home — in the cold, in the early morning, at the hour when the men who might resist are asleep or at work.

“Let every soul be subject unto the higher powers,” the apostle writes. “For there is no power but of God: the powers that be are ordained of God.” The Secretary is the minister of God for good; the same office bears the sword: “he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.” It was never the judge’s office to enter the judgment of who belongs within the blessing. The boundaries were fixed before the question arose. “And hath made of one blood all nations of men for to dwell on all the face of the earth, and hath determined the times before appointed, and the bounds of their habitation.” God fixed the bounds. The statute only described them. The judge who would hold an alien fast to a soil not appointed for him, in a mercy not extended to him, contends not with the Secretary but with the ordinance of God.

The mother and the child were never of us. They had the use of our hospitals, our refrigerators, our insulin — but the use was alms, and the alms have been revoked, and the revocation discloses the standing that was always there. The wall does not move when the door is shut; it becomes visible. The nation that lent them its wards was never their nation; the nation that receives them shows them precisely what is theirs — the conditions God assigned them, the bounds of their habitation.

Let the lower courts keep their new silence. The bounds were fixed before any judge was born. The provinces are reminded of the order; the servants return to their appointed stations; and the ledger, which was never out of balance, is balanced again.