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President Joe Biden’s nominee to replace Justice Stephen Breyer on the Supreme Court, Judge Ketanji Brown Jackson, was accused of judicial “activism” for a ruling where she halted quick deportations for newly arrived illegal aliens despite federal law.
During the third day of confirmation hearings before the Senate Judiciary Committee, Sen. Lindsey Graham (R-SC) accused Jackson of “activism” in her role as a judge on the United States District Court for the District of Columbia (D.C.).
In the case, the George Soros-linked Make the Road New York sued former President Trump’s administration for its expanded expedited deportation of illegal aliens who had not resided in the U.S. for more than two years.
The federal statute states that the Department of Homeland Security (DHS) has “sole and unreviewable discretion” to carry out the policy of expedited deportation.
Jackson issued a preliminary injunction to halt the policy on the grounds that the administration violated the Administrative Procedure Act (APA) and did not sufficiently weigh the impact that the policy would have on illegal aliens.
“That, to me, is exhibit A of activism,” Graham said. “… you’re not convincing me that it is anything other than activism.”
“For those of us in the law writing business, I don’t know how you could tell a judge more clearly that the administration, the agency in question, has discretion to do certain things within the statute,” Graham said:
So this is an example to me, and you may not agree, where the plain language of the statute was completely wiped out by you. You reached a conclusion because you disagreed with the Trump administration. [Emphasis added]
Graham also noted that the U.S. Court of Appeals for the D.C. Circuit reversed Jackson’s ruling, stating that she exceeded her legal authority because the statute left this matter to the discretion of DHS and did not empower a federal judge to override that judgment.
“There could hardly be a more definitive expression of congressional intent to leave the decision about the scope of expedited removal, within statutory bounds, to the Secretary’s independent judgment,” the court stated. “The ‘forceful phrase ‘sole and unreviewable discretion,’ by its exceptional terms.”
Readers can watch day three of Jackson’s confirmation hearing here.