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Washington, D.C. (April 10, 2025) - 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.
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