Opening the borders was like setting “a match to the country”
“we’ve got a crisis in the immigration system that we are giving people rights who have no right to be here on such a volume that it’s essentially shutting down the system.”
I appeared yesterday, September 3, 2025, on I’m Right with Jesse Kelly on The First TV. I’ve been on the show many times, and it’s always fun and quotable.
We covered several hot legal topics, incuding the ruling on Trump’s tariffs by the Court of Appeals for the Federal Circuit and how it’s likely to fare in SCOTUS, the status of removals under the Alien Enemies Act, and the provision of 600 military lawyers to serve as immigration law judges.
Transcript
(Auto-generated, may contain transcription errors, lightly edited for transcript clarity)
[Intro news clip]
Kelly (00:42)
Okay. Tariffs, no tariffs; this or that… I don’t know. We’re not getting into that right now. What I want to know is why is this going to the Supreme Court? What are the laws? What’s the legality of all this? Joining me now is William Jacobson, Cornell University law professor, founder of Legal Insurrection. Okay, why is this a court issue? What’s happening? Why is it at the Supreme Court? Please make us smarter.
WAJ (01:09)
Sure. Well, the authority that President Trump invoked for his tariffs was an emergency authority that the president has to deal with various international emergencies. And what the court ruled was that even if the statute applied–even if he properly invoked an emergency, the statute doesn’t provide for tariffs. So he did something that is beyond his authority under the statute, assuming the statute even applies.
So that was really the ruling, and the Supreme Court’s probably going to have to decide, because this was a ruling by the Court of Appeals for the Federal Circuit. We don’t talk about the Federal Circuit very much. It’s the Circuit that has jurisdiction over international trade disputes, among other things. So this will go, I presume, to the Supreme Court. The Supreme Court’s going to have to rule. Assuming a president properly invoked these emergency powers, do the emergency powers include tariffs when tariffs are not mentioned in the statute? And that’s going to be the issue.
Kelly (02:12)
Okay. Bill, you’re on the Supreme Court. Do they?
WAJ (02:18)
I think it’s within the President’s power. There is enough language in the statute. The statute does not purport to be exclusive to the remedies listed in the statute, and the President has some flexibility. So, I think he’s going to win in the Supreme Court, but I don’t have a high degree of confidence in that I might on other issues that you and I sometimes talk about. I think it’s going to be a close call. I think ultimately the Supreme Court will rule that the statute gives the President enough authority to fashion remedies to deal with the emergency, and that tariffs can be part of it.
Kelly (02:56)
Another one heading to the Supreme Court is Trump’s use of the Alien Enemies Act to deport gang bangers and criminals. But I’m very, very confused, because I thought we already had a decision on this; why do we need a second decision? I thought all these decisions were final. What’s happening?
WAJ (03:14)
Well, the prior decision by the Supreme Court essentially sent it back down to the lower court, sent it back down to the Fifth Circuit Court of Appeals. And that was what happened. The Fifth Circuit Court of Appeals– a panel of the Fifth Circuit– has now addressed it and has said that the president did not properly invoke that Act, because what is happening with this Venezuelan gang does not constitute an invasion as required by the statute. But I think that may not hold up even in the Fifth Circuit, because within the last hour or two, I saw that one of the judges on the Fifth Circuit, which is a large bench; I don’t know how many judges they have, but more than a dozen, said, “hold off. We want to reconsider this. We want to withhold what they call the mandate. Don’t send this back down to the lower courts to implement yet.
So my guess is that this is goinf ro go to the full Fifth Circuit, and I think the full Fifth Circuit will find that the President is the one who gets to decide if there’s an invasion, not the federal court. And certainly what has been happening with Venezuela–sending gang members here for the purpose of subverting our country–is sufficient for the President to reach that judgment. So, I don’t think it’s going to go to the Supreme Court right away, because I don’t think it’s going to survive the full Fifth Circuit; but if it does, we’ll be back on the merits in the Supreme Court, whereas last time we were dealing with kind of emergency injunctions and things like that.
Kelly (04:45)
Pete Hegseth, Sefense Aecretary, announced that he’s grabbing 600 DOD–Department of Defense lawyers, and he is goinf ro have them be immigration judges. One, I’m a little dumbfounded. We have 600 freaking lawyers at all in the DOD. How does this work?
WAJ (05:04)
Well, I think it’s a really important move because one of the things that the Left has done–the Democratic Party has done– is they understood the weak point in the immigration system. Our immigration system and legal system is not equipped to deal with millions and millions of asylum cases and millions and millions of cases. It’s just not equipped. So if you flood the system, even if these claims are frivolous, you essentially bring the system to a halt. And that’s what’s happened.
So what he’s doing is he’s adding 600 judges to process cases. How long or how many they can handle? I don’t know. But it’s going to be tens of thousands more than they can handle before. And so that’s really important because that’s the game the Democrats played. Flood the system, open the borders, bring in so many people who are taught to claim asylum, which is at one point was a legitimate claim. It was meant for people being persecuted abroad, typically for religion or ethnicity. And they figured out, as soon as you get here claim asylum and it’s going to take years for you to work your way through the [immigration] system. Then you ramp that up with open borders. And the immigration systems are just completely overwhelmed.
I don’t think 600 is enough, probably need 6,000 or 10,000. But at least they were able to free up 600 DOD lawyers; people who are probably… I don’t know why they have 600 either, but apparently they have 600 they can spare. So they’ve probably got another 600 or 800. And, you know, people in the military have legal problems. There are issues with regard to bases and transportation and international things. So, it doesn’t surprise me.
There are a lot of lawyers in the army and in the military, but I’m glad they freed up 600 to start processing these cases and getting people who have no right to be here out of here.
Kelly (06:56):
Bill, do you have any base of knowledge on how long…I know it’s a dumb detail, [but] how long do these cases take– and I’m sure they vary of course– but in general, is this an hour that you have to spend having to hear, you know, why Lupe gets to stay? Is it a week? How long does it take for each person?
WAJ (07:13)
Yeah, well, that’s one of the big issues. The whole court process can take months or years, but the actual hearing itself can be truncated. And so I don’t think they need a 10 week trial for every asylum case. That’s of course, what the Democrats would like. They would like to completely bring the system to a halt. I think most of these people will probably get an hour worth of hearing and that’s it. But that’s a lot when you’re talking about millions of people. You’re talking millions of hours of an immigration judges, you know, time.
And that’s why the emergency orders and the attempts to expedite people out of the country are so critical and so important. And that’s why some of the court decisions are getting in the way of that.
Of course we want due process, but are we really going to give due process to 10 million people who cross the border under Biden, none of whom– virtually none of whom have a legitimate claim? We might as well just set a match to the country if that’s what we’re doing.
So this is really a–you know–people talk a lot about a “constitutional crisis.” Well, I think we’ve got a crisis in the immigration system that we are giving people rights who have no right to be here on such a volume that it’s essentially shutting down the system.
Kelly (08:32):
Will, as always, thank you, sir. Appreciate you.
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Comments
You’re right professor. The immigration courts need lots more lawyers to act as judges. I wonder how many we could get from the IRS?
We should advertise on Backpage.com for some, like our government did to hire “digital escorts.”
“Experience not required!”
The other parallel path we need to take is using the d/prog ‘flood’ of illegal aliens against them. Build detention facilities in Red States, many more than now. Require every non adjudicated alien to report to one of the facilities. Fail to report automatically invalidates asylum or other claim. Hold those who report in those facilities until their claim is adjudicated or they choose to allow DHS to facilitate their return home b/c they got tired of waiting.
This approach does several things;
1. Locates the aliens in the interior
2. Reverses the ‘momentum’ of the attempt to flood by use of detention and voiding any work permits
3. The sheer # of detainees should be more than 800K in each of the half dozen or so Red States hosting the facilities…. a number which just happens to be the approximate size of a Congressional District. So that’s another 6 CD gained by Red States.
4. Centralized facilities more/less preclude family formation while there so it limits children being born to aliens.
I love this for the gamesmanship.
1. Democrats invite in illegal immigrants to build an unbeatable electoral majority, then fly them to red states to turn them blue.
2. Red states collect and intern illegals, who still can’t vote, and use them as census fodder to turn the House redder.
We told them they wouldn’t like having to play by their own rules.
“We might as well just set a match to the country”
Excellent metaphor, Professor… also, an excellent description of the Democrat’s Cloward-Piven strategy without over-academicizing it.
Visual persuasion. You can see the country burning. Well done!
“Opening the borders was like setting a match to our country.”
Or like Pandora opening a big ole box and out jumps 10 million rats. Are we really going to give due process to 10 million rats who jumped across the border under Biden, none of whom – virtually none of whom – have a legitimate claim?
We might as well just set a match to the country.
Define “due process.” We should definitely investigate any claims that they are actually here legally, or that they are citizens. Don’t want to deport an American citizen with poor paperwork. Unless they came here DIRECTLY from the country where they claim to face persecution, we can send them back after that; refugees are required to stop at the first safe harbor and apply for asylum there.
I was paraphrasing Professor Jacobson who says:
“Of course we want due process, but are we really going to give due process to 10 million people who cross the border under Biden, none of whom– virtually none of whom have a legitimate claim? We might as well just set a match to the country if that’s what we’re doing.
I suggest you ask him what he means by “due process”
No Borders
Something one would hear out of a Communist
That’s why nationalism scares them so much
I’m a retired lawyer. I would be honored to serve as a part-time immigration judge. I will bet that there are thousands of retired lawyers who would join me. Where do I sign up?
If we had every state recruit 600 retired lawyers and judges willing volunteer to each handle 5 cases per week for one year, we would have over 7 million cases heard. If Pete can do it with 600 DOD lawyers, some not for profit should be able to put this program together
Message to illegals: No government handouts, no benefits, nothing until you have, in hand, a final court determination that you are legally entitled to be in the country.
The stampede back across the border would be measured on a seismograph.
“Mass immigration has nothing to do with freedom. It is social engineering. It’s a policy imposed by the globalist elites to forcibly change our culture and society, as opposed to how it would organically and gradually adapt and evolve with sustainable immigration. It destroys cohesion and lowers trust, which justifies more government intervention and makes it easier for globalist elites to control us.” Maxime Bernier.
The elite gain their security by constantly destroying ours.
Due process for >90% illegal aliens is:
– Do you claim to be an American citizen: if yes, look for any shred of evidence.
– Do you claim to be here legally: if yes, you should easily be able to produce proof.
– Do you claim. to be a refugee fearing personal / group persecution: if yes, did you stop at the first country not persecuting you?
That ought to handle everything but people claiming to be refugees from Mexico or Canada.
We aren’t obliged to take in the whole world’s refugees. Refugees, even when genuine, have to stop at the first safe refuge. They can apply for asylum elsewhere from there.
“Refugees, even when genuine, have to stop at the first safe refuge.”
Correct, but that provision doesn’t seem to work. Many claiming to be refugees come in through Mexico. Does Mexico qualify as a safe country? I think yes because Mexico is not suffering from war, famine, revolution etc. It’s the richest country in Latin America and the Mexican leaders want to off load their poor and problem people to the US. Mexico also loves the remittances. We need a drastic solution. Repeal the 1980 refugee act. Withdraw from all treaties that obligate us to admit refugees. Then nothing obligates the US to even consider a refugee case. Of course repealing the refugee act will not happen. The Democrats would filibuster. The same people who claim the filibuster is “racist.” More immigration judges would certainly help, but deporting millions would still take too long. Should the economy seriously falter, the Democrats will regain power and open the borders again.
Is there a solution? Yes if we are willing take drastic actions. Example: put a bounty on every illegal immigrant, and authorize citizen militias to round them up using lethal force if necessary. Would never happen. We lack the courage to survive. Look at Europe.