‘Federal Judge Appoints Himself President’

“Federal Judge Appoints Himself President” is the headline over the latest scoop in the Babylon Bee. The appointment, the Bee reports, was made by Judge Mortimer Dithers of the Northern District of California. The Trump administration’s agenda, the breathless Bee reports,“was stopped in its tracks” by the judge appointing himself president. “There’s nothing we can do about it,” the Bee quotes “legal experts” as saying. “He’s a federal judge.” Hah. Good for the Bee. The story is satire, which is the Bee’s business. There is no Mortimer Dithers on the bench in California. Nor is it true that a Judge Dithers granted himself “all the powers of the executive branch in an emergency move to stop Trump.” Nor did a Judge Dithers issue executive orders for Tesla to stop making cars. Yet the gag marks better than any jape we’ve yet seen the hubris of federal district courts in a race to stymie a duly elected president.It’s not our intention to belittle the claims that are being brought to court — or weigh the personal tragedies behind these cases. Yet most of the discussion in the news strikes us as missing one of the most basic points about visa and green card cases — the burden of proof. There is no right, per se, to a visa or green card in American law. Plus, the burden of proof is different than in a criminal case, where the burden of proof is always solely on the government. This is marked in the policy manual for the U.S. Citizenship and Immigration Services, under the heading “Burden of Proof and Standard of Proof.” It says: “In matters involving immigration benefits, the applicant always has the burden of proving that he or she is eligible to receive the immigration benefit sought.” That could mean uphill sledding for a lot of these cases. It marks how reckless some of these protesters were with their immigration status.The question of who bears the burden could prove decisive in the case of the Columbia encampment leader, Mahmoud Khalil, who sits in Louisiana awaiting word on his fate. The effort to deport him could reach the Supreme Court, where it could become a landmark in reckoning the president’s power to remove green card holders. The Nine could decide the case based on an analysis that spotlights Mr. Khalil’s burden rather than the government’s rationale.As for national injunctions, our A.R. Hoffman has reported on the rise of such injunctions as a stratagem. President Trump notes in a recent Supreme Court petition that more such injunctions were handed down last month alone than in all of President Biden’s first term. To wonder about this spate of judicial red lights is not to gloss over the question of whether Washington ignored such an order in deporting Venezuelans under the Alien Enemies Act of 1798.The administration denies defying such an order by keeping planes flying to El Salvador. The White House Press Secretary avers that the planes “had already been removed from U.S. territory” by the time Judge James Boasberg ruled, though His Honor contemplated “turning around the planes.” The issue, though, is an important one. No court system, however politicized, can let pass such contempt, a point that has been marked by Chief Justice Roberts. Which brings us back to the Babylon Bee. What its “scoop” tells us is that the courts have their own credibility issues. The moment reminds of the SNL spoof of a press conference at which the scribes ask the “secretary of defense” where our lines in Iraq would be most vulnerable to attack by the enemy. Jack Fuller, then editor of Chicago Tribune (and now gone, alas), shook his head and said the press had lost the public. It could happen to the courts.

‘Federal Judge Appoints Himself President’

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