Parsing Immigration Policy Andy McCarthy on Executive Overreach, Courts, and the Constitution
Apr 10, 2025
50:58
In this week’s episode of Parsing Immigration Policy, National Review’s Andy McCarthy and guest host Andrew Arthur, the Center’s fellow in law and policy, examine the erosion of legal norms – from immigration enforcement to judicial power – and what this means for how our system of government is supposed to work under the Constitution.
Prosecutorial Discretion:
McCarthy traces how the Obama and Biden administrations transformed prosecutorial discretion from a tool used on a case-by-case basis into a broad and categorical policy of declining to enforce immigration laws. What was once a resource-based allocation judgment has become, in his view, an unconstitutional end-run around Congress.
The Courts as a Political Battleground:
With Congress “not doing its job,” McCarthy highlights how activist groups race to friendly judges for nationwide injunctions. He warns the resulting judicial overreach allows unelected judges, often handpicked by advocacy groups, to override elected officials and block policies nationally, replacing democratic accountability with judicial activism. SCOTUS’s large emergency docket caseload is a symptom of the resulting dysfunction.
The Rise of Progressive Lawyering:
McCarthy contrasts originalism, which examines and respects the Constitution’s original meaning, with progressive lawyering, which he sees as driven by social outcomes rather than legal process. This shift, he contends, threatens democratic governance.
Deportation and Due Process:
The two legal experts address Trump-era deportation efforts using both the foreign policy grounds for removal and the Alien Enemies Act. McCarthy, who supports broad executive authority, explains that even aliens have constitutional protections.
Host
Andrew Arthur is a Fellow in Law and Policy at the Center for Immigration Studies.
Guest
Andrew McCarthy is a Senior Fellow at the National Review Institute and Contributing Editor at National Review.
Related
Andrew McCarthy articles at National Review
Supremes Uphold Due Process While Handling Trump Win in Venezuelan Deportations Case
What is 'Shocking' to J.D. Vance Should Shock - and Anger - You, Too
Trump Admin Wins First Alien Enemies Act Skirmish before SCOTUS - or Did It
SCOTUS Chief Stays District Order for Alien Deported Due to 'Administrative Error'
Tren de Aragua, Alien Enemies Act, and 'State Secrets Privilege'
Intro Montage
Voices in the opening montage:
Prosecutorial Discretion:
McCarthy traces how the Obama and Biden administrations transformed prosecutorial discretion from a tool used on a case-by-case basis into a broad and categorical policy of declining to enforce immigration laws. What was once a resource-based allocation judgment has become, in his view, an unconstitutional end-run around Congress.
The Courts as a Political Battleground:
With Congress “not doing its job,” McCarthy highlights how activist groups race to friendly judges for nationwide injunctions. He warns the resulting judicial overreach allows unelected judges, often handpicked by advocacy groups, to override elected officials and block policies nationally, replacing democratic accountability with judicial activism. SCOTUS’s large emergency docket caseload is a symptom of the resulting dysfunction.
The Rise of Progressive Lawyering:
McCarthy contrasts originalism, which examines and respects the Constitution’s original meaning, with progressive lawyering, which he sees as driven by social outcomes rather than legal process. This shift, he contends, threatens democratic governance.
Deportation and Due Process:
The two legal experts address Trump-era deportation efforts using both the foreign policy grounds for removal and the Alien Enemies Act. McCarthy, who supports broad executive authority, explains that even aliens have constitutional protections.
Host
Andrew Arthur is a Fellow in Law and Policy at the Center for Immigration Studies.
Guest
Andrew McCarthy is a Senior Fellow at the National Review Institute and Contributing Editor at National Review.
Related
Andrew McCarthy articles at National Review
Supremes Uphold Due Process While Handling Trump Win in Venezuelan Deportations Case
What is 'Shocking' to J.D. Vance Should Shock - and Anger - You, Too
Trump Admin Wins First Alien Enemies Act Skirmish before SCOTUS - or Did It
SCOTUS Chief Stays District Order for Alien Deported Due to 'Administrative Error'
Tren de Aragua, Alien Enemies Act, and 'State Secrets Privilege'
Intro Montage
Voices in the opening montage:
- Sen. Barack Obama at a 2005 press conference.
- Sen. John McCain in a 2010 election ad.
- President Lyndon Johnson, upon signing the 1965 Immigration Act.
- Booker T. Washington, reading in 1908 from his 1895 Atlanta Exposition speech.
- Laraine Newman as a "Conehead" on SNL in 1977.
- Hillary Clinton in a 2003 radio interview.
- Cesar Chavez in a 1974 interview.
- House Speaker Nancy Pelosi speaking to reporters in 2019.
- Prof. George Borjas in a 2016 C-SPAN appearance.
- Sen. Jeff Sessions in 2008 comments on the Senate floor.
- Charlton Heston in "Planet of the Apes".