Gillitrut
Reading from the golden book under bright red stars
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User ID: 863
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I don't really understand the middle paragraph here. IMLS was created by Congress and is codified in 20 USC Ch 72. It was created in 1996 and re-authorized in 2003, 2010, and 2018. Their funding is also appropriated annually by Congress. What does it mean for a bureaucracy to be expanded with "the consent of the public" if an expansion happening over the course of years by laws passed by the people's elected representatives does not qualify?
Gillitrut
Reading from the golden book under bright red stars
1mo ago
It is not only citizens that have SSNs, though. Legal Permanent Residents also get one.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
In terms of feasibility, it's asserted that the process for mass deportations is relatively easy. He uses the analogy of the 2.9 million Americans who fly every day, stating that if even 1% of them were illegal immigrants heading home, the U.S. could deport 10 million people annually.
Does he think the United States government has, by itself, the capacity to replicate 1% of all intra-country flight capacity? To multiple different countries around the world? To do this every day for a year? I am skeptical.
More importantly, the US already has a giant list of people set to be deported: the Department of Justice currently has 1.5 million final deportation orders, meaning there are over 1.5 million illegal immigrants who have already been through the necessary administrative process and could be immediately deported if apprehended.
I feel like "if apprehended" is doing a ton of work. Is this a case where ICE already knows where these people are and needs to pick them up? Or does it need to go find them too? That may not be a trivial step!
Further, the government is apparently releasing 90% of the illegal immigrants it arrests and many of those released fail to attend their hearings, and a large percentage do not comply with final deportation orders.
Is the author under the impression there are ICE facilities with the capacity to hold millions of people just standing around empty? What is the alternative to release in the case where you physically cannot hold someone?
This entire charade is absurd, of course. The executive branch is arguing with the executive branch about whether the executive branch can enforce the law!
This argument is what is absurd. I am under the impression it is common for executive agencies to consult with, say, the DoJ or in-house lawyers about whether some course of action is lawful. The way our system does not work is "I am the executive branch, therefore everything I do is legal." It is totally normal and understandable for particular executive agencies to be unsure about whether doing something is lawful and consult with a more expert agency or entity about whether it is.
He also thinks that immigration judges can make decisions a lot faster. There are approximately 700 immigration judges now, but if that were scaled down to about 100 super efficient judges who can process up to 80 cases a day, you'd meet a goal of 3,000 deportations per day, resulting in clearing about 6 million immigration cases after four years.
As @Lizzardspawn says the notion that a judge is making an individualized and informed decision about whether someone is a legitimate asylum seeker in 6 minutes (assuming an 8hr work day) is farcical. Just dispense with the hearings altogether.
If such plans were to be implemented, they would face serious legal challenges, but would Trump abide by whatever rulings the courts, including the Supreme Court, hand down? Thanks to Trump v. United States, the president now has broad immunity for powers granted under Article II, which include commanding the military, issuing pardons, vetoing legislation, overseeing foreign relations, and managing immigration. It is obvious from the first two months that the administration believes that the president has broad Article II powers; it is reasonable to think that expedited removal of millions of people from the country, even those with pending asylum claim, is a power that the administration believes it has and that such actions are immune from prosecution, which would mean they can proceed in the face of injunctions issued by federal courts.
Let's be clear, Trump v. United States stands for the proposition that the president is immune to certain kinds of criminal prosecution for certain kinds of actions. There is no implication that it extends to other executive branch officials nor that the president or those officials are immune from other kinds of sanction by the courts.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
The United States was occupying Germany through May 1949. Anyway it cannot be that no determinations under the act are reviewable. If it is un-reviewable whether someone the president purports to deport is an enemy alien then the law authorizes the president to deport United States citizens! A plainly unconstitutional outcome.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I don't understand what the "founders" have to do with anything. We are not interpreting some obscure or abstract constitutional provision. The Alien Enemies Act is a statute passed by the Fifth Congress of the United States in 1798. It uses the words "government" and "nation." If Congress wanted it to mean something else they have had over 200 years to change it.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I think that is easily distinguishable. The United States is definitely not in a state of "declared war" with Venezuela (or any other government or foreign nation) the way it was with Germany in 1948.
A potentially more interesting case is the recent deportation of alleged Venezuelan gang members. A US district court ordered that the deportations not proceed for 14 days while it hears arguments about the legality of the deportations under the Alien Enemies Act, but that order may have been issued after the gang members had already left US soil. I assume they will try to deport more people under the Act and that these cases will go up to the Supreme Court as well.
Courtlistener docket is here. Alien Enemies Act is codified as 50 USC Chapter 3. Trump's Executive order is here.
On the basis of the evidence so far (which I think is just what is in the EO itself) I am skeptical that the actions of Tren de Aragua satisfy the statutory requirement of being an "invasion or predatory incursion" that is "perpetrated" by a "foreign nation or government." There's a hearing scheduled for an hour or so from now and I will be pretty surprised if it does not end in the beginning of contempt proceedings for some officials. Just Security has an article with a pretty detailed timeline.
ETA:
Trump announced in a post last night that he was considering voiding the last minute preemptive Biden pardons of Fauci, members of January 6 House committee, and others, because an "autopen" was used to sign the pardons. Presidential authority to grant pardons is very broad, and apparently autopen has been used by prior presidents; looks like a losing case if it goes before the Supreme Court.
Trying to imagine the logistics of how this plays out. Trump's DOJ presumably charges one or more pardoned individuals with a crime within the scope of the pardon. They move to dismiss (or equivalent) on the basis they were pardoned. DOJ claims the pardons are not valid. Defendants produce whatever constitute the official pardon documents, various presidential announcements of the pardons etc. DOJ's rebuttal is ???. What could possibly go in the blank such that a court would permit the prosecution to move forward? I am confident that a court is not going to permit an investigation into a President's state of mind to try and determine a pardon's validity.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I mean, it's obviously (3) right? Trump is in the Epstein flight logs and address book. In 2002 in a New York Magazine profile of Epstein, Trump described him:
“I’ve known Jeff for fifteen years. Terrific guy,” Trump booms from a speakerphone. “He’s a lot of fun to be with. It is even said that he likes beautiful women as much as I do, and many of them are on the younger side. No doubt about it — Jeffrey enjoys his social life.”
There's also the Fox and Friends clip from last year, where Trump is gung ho about declassifying the JFK files but very cagey about releasing the Epstein files, insisting there's some "phony" stuff in there. Add to that Trump's own history with younger women. Of course, Epstein's "suicide" was also in federal custody in 2019. Who was President in 2019?
Gillitrut
Reading from the golden book under bright red stars
1mo ago
Gillitrut
Reading from the golden book under bright red stars
1mo ago
Gillitrut
Reading from the golden book under bright red stars
1mo ago
Nothing in the OP mentions taxes at all, including getting rid of them for tariffs. In any case it is very unclear to me why tariffs are a better source of revenue than corporate income taxes are. The net change in corporate expenditures also seems quite ambiguous. If you are a company that does not do much importing then yes, sure, removing corporate taxes for tariffs may be a subsidy. But if you are a company that does a lot of importing tariffs may be even worse than a corporate income tax, in terms of your costs.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I think this post conflates different policies and their impacts. Tariffs, for example, do not lower the price of domestically produced goods for international consumers. That is, if the United States imposes a tariff on steel that does not make US-produced steel cheaper for international steel buyers. It makes internationally-produced steel more expensive for US steel consumers. Government subsidy of US steel production may lower prices for international consumers but that's not what a tariff is. Both articles you link to (Noah Smith and Asia Times) are specifically about industry subsidization, not tariffs. The two policies operate differently and there is no reason to conflate them like this.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I'm aware this is common practice at the supreme court but I think that practice is quite bad. It's also totally contradictory with any theory of constitutional interpretation other than a "living constitution" one.
Gillitrut
Reading from the golden book under bright red stars
1mo ago
Personally I find the "we've always done it this way" pretty compelling.
Set aside for a moment the question of what the 14th amendment means, who it grants citizenship to. Whatever it means, that meaning is not open to change by executive order. If the 14th amendment granted (or not) citizenship to some group of people it did so whether or not Trump ever signed his executive order. Then either:
1. The understanding of the 14th amendment that's prevailed for the last century and change is correct. In which case Trump's executive order is unconstitutional. OR
2. The meaning of the 14th amendment implied by Trump's executive order is correct. In which case there is some unknown population (probably numbering at least millions) of people who the government has been treating like citizens (voting, passports) but aren't and never have been.
The Trump EO tries to sidestep the problems in (2) by purporting to be prospective only but that's not how the constitution works!
Gillitrut
Reading from the golden book under bright red stars
1mo ago
I think it is most likely about the southern border. The problem with trying to use control of the federal government to bootstrap one-party rule, and especially cancel elections, is that almost none of the infrastructure for carrying out federal elections is under the control of the federal government. In practice "cancel elections" looks something like "send the military/federal LEOs to arrest state officials." I am very skeptical there exist sufficient willing participants in those groups to be able to carry it out. I suspect any attempt to do so would make the George Floyd protests look extremely tame by comparison. To the extent there is a plan to fuck with the 2028 elections I expect it is to attempt Eastman's plan again and have Vance purport to unilaterally declare certain electors invalid.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
It is simply not true that the President can fire any government employee he wants in whatever manner he wants. There is a whole subchapter in the United States Code for statutes that prescribe procedures that need to be followed to fire people. Approximately none of which DOGE or Trump have followed.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
My understanding is the children of lower ranked diplomatic personnel are covered. Their children do get birthright citizenship. Here is a CIS article from 2024 complaining about the practice:
The differences between OFM’s blue list and white list are rooted in international practices and law, codified in the Vienna conventions on diplomatic and consular protections.
Under the Vienna conventions, “blue-list” diplomats, as direct representatives of their foreign governments, receive the highest privileges and immunities in the host country; in particular, they are shielded from arrest. “White-list” administrative staff and consular officials also enjoy considerable privileges and immunities, but have fewer arrest protections.
So, when it comes to matters of diplomat babies born in our country, State Department applies an expansive—and unjustified—interpretation of the 14th Amendment’s jus soli citizenship clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”
Thus, according to the State Department, blue-list babies, born in the U.S. to parents with greater privilege and immunities are not “subject to the jurisdiction,” of this country and therefore not automatically American citizens. But somehow white-list offspring, with comparatively less arrest protection, are “subject to the jurisdiction” and the babies are entitled to a U.S. passport.
Maybe it shouldn't work that way, the article I linked certainly argues in that direction, but it seems current practice is otherwise.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
So, what about the raid from extra-territorial natives?
What would it mean to be an "extra-territorial native" that was not covered under the exemption for Native Americans? What other group is being imagined here?
The way I think of it is that the US does have jurisdiction, but the criminal is the commanding goverment rather than him. In any case, if the existence of such a sphere were sufficient to deny jurisdiction, then officials with sovereign immunity would also be "not subject to jurisdiction".
I don't understand why they wouldn't both be criminals. I think pretty ordinarily if person X commits a crime on person Y's orders they are both criminals. I'm not sure what logic makes the foreign government a criminal and not the individual who committed the acts constituting the crime.
In any case, if the existence of such a sphere were sufficient to deny jurisdiction, then officials with sovereign immunity would also be "not subject to jurisdiction".
I think the people that literally constitute the sovereign whose jurisdiction we are discussing are under the jurisdiction of the sovereign they constitute.
Im not sure how often following families were net helpful vs something the command couldnt take away from soldiers, and dont think the outcome should depend on that. And what if some enemy civilians attempt to settle conquered land?
As you note above, invading armies likely has some meaning beyond the literal soldiers since children born to soldiers must be pretty uncommon. That comes directly out of Ark. I'm comfortable thinking of informal logistical support as being part of the "army" in that sense. I think enemy civilians would fall under the jurisdiction of the government being occupied.
In general, the tenor of this conversation is you attempting to draw a more complex and less obvious distinction, that will accommodate the invasion exception without excepting illegal immigrants. You havent found counterexamples to my relatively simple theory that accommodates it. This very much looks like you bending towards a desired conclusion.
I disagree. Invading armies, organized under the auspices of some government, seem to me quite different than a group of unrelated people not organized with each other or by any government. In relation to each other, to the country they are coming from, to the country they are going to. Treating them the same does not make any sense. In what sense are illegal immigrants an "army?"
Gillitrut
Reading from the golden book under bright red stars
2mo ago
The question is, are they a foreign power, themselves (and the natives as per above)? In diplomacy, its well defined who is a state; in war not necessarily.
I think there's an obvious contemporary analogy with the 14th amendment: The Confederate States of America. Were those children born to confederates during the Civil War considered to be American citizens? As best I can find the answer to that is "yes." Children born to confederates were considered US citizens the same as any children born in the Union. This is pre-14th amendment but I doubt the authors of the amendment would have understood it to exclude the children of confederates. It seems to me it would be hard to argue CHAZ or Mexican cartels constitute a sufficiently foreign jurisdiction when the CSA was not.
But the way jurisdiction is used in the 14th, it has to apply to the person as a whole. The sovereign immunity of government officials is not a general relationship they have with the state, its something that applies when they wear their office hat. This is true of the soldiers as well; you cant just say "Well now that I need a binary result, Ill pick which hat to count as the "general relationship".".
I think this bolsters rather than undermines my point. In the case of the soldier or invading army there is arguably a sphere of action in which US courts do not have jurisdiction to prosecute them for things which may otherwise be crimes. That being those actions undertaken as part of prosecuting the way pursuant to their governments directives. There is no similar sphere for illegal immigrants.
Also, there were no women soldiers at the time. They would not be acting in any kind of official capacity, but nonetheless fall under the invasion exception, because it is moot otherwise.
I do not think it is too much of a stretch to extend this aegis of foreign jurisdiction to foreign citizens providing logistical support ala camp followers.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
Answer in two parts.
First, there are some powers which Congress is probably not able to delegate to subordinate positions. I think if Congress tried to establish an agency to determine the budget for the federal government for the upcoming year without a vote in Congress that would be struck down. Similarly certain powers (like the power to pardon) are specific to the office of the President and he probably can't delegate those. If he wants to empower an agency to advise him on the use of the power that's probably fine but there are likely certain powers he can't just give to other entities.
Second current law suggests that many actions taken by DOGE would be unlawful even if those actions ultimately issued from the President himself. Decisions about firing certain employees or impounding funds are governed by Congressional statutes, not just the president's whims. So even if the President could delegate certain powers it's not clear he has the powers to do the things he would be delegating.
ETA:
I guess there's a third thing which is that Supreme Court interpretation of the appointments clause also limits the power the President can delegate without the safeguard of Senate confirmation, which is probably the one most relevant here.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
My impression from Wong Kim Ark is the Native American exemption is distinct from the invading army distinction, perhaps due to the weird way Native American tribes were considered sovereign while inside the territorial boundaries of the United States. As to Mexican cartels or CHAZ, I do not think there is plausibly any foreign power which they are acting as agents of so children of cartel members or CHAZ enforcers would be subject to the jurisdiction of the United States and have birthright citizenship thereby.
The US may also, even universal jurisdiction aside, prosecute soldiers for crimes unrelated to the war effort.
I think this is also consistent with US law and Supreme Court precedent, without negating the kind of relationship these individuals have. In Ex parte Young the Supreme Court ruled that sovereign immunity did not protect United States government officials from suits alleging they violated the constitution. The reasoning is that any unconstiutional action cannot be the action of the United States government (since the constitution would forbid that action) and so they cannot be acting as the government and enjoy the protection of that capacity, though they can in other capacities. By analogy when those foreign soldiers engage in actions unrelated to the orders of their sovereign they are acting in a capacity that does not enjoy concomitant protections from the laws of the United States, without negating the existence of that general relationship.
I understand that its a long post but I literally said so.
I did miss that sentence in your post. My apologies.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
I think a more straightforward distinction has to do with the relation between the non-citizen and the state. In the case of an invading army the soldiers effecting the invasion and occupation are acting in an official capacity as agents of a foreign government. I think that makes those soldiers more like ambassadors (in relation, though not purpose) than illegal immigrants more generally.
I'll also note that Trump's EO goes beyond illegal immigrants to include those lawfully present but without permanent resident status. So any theory of jurisdictional defect premised on illegal entry is still going to conclude a substantial part of Trump's order is unconstitutional, without more.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
According to some reporting DOGE employees are in control of all payments at USAID and denying disbursement of payments authorized by Secretary of State Marco Rubio. I am skeptical DOGE is going to be able to present any kind of communication from Trump authorizing any particular firing rather than purporting to give them discretion.
Gillitrut
Reading from the golden book under bright red stars
2mo ago
They did not require senate confirmation and did not violate the Appointments clause. Part of the distinction about whether an officer is "inferior" or "principal" (and thus whether they require senate confirmation) turns on the authority they wield. If you want to create a purely advisory committee to figure out software best practices and help other government agencies bring their stuff up to date, no problem. If you want to create an entity that has the power to hire and fire people of different departments, order around other senate confirmed officials, cancel contracts, etc then you need senate confirmation.
I believe her portfolio is here. It helped that a bunch of news articles described her both as "Becky" and "R.E." with the latter being what's on her site.
I think the reason for her deportation is much simpler: the administration's quotas for deportations and arrests are sufficiently high they cannot be filled with criminals alone. It turns out that finding criminal gang members who are here illegally and don't want to be found is hard. Finding otherwise law abiding folks who might have committed technical violations (or for whom pretexts can be manufactured) is much easier!
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