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PaperclipPerfector  3mo ago (text post)   30377 thread views

Culture War Roundup for the week of March 17, 2025

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The pardons Biden handed out at the end of his term were unquestionably an abuse of power.

That being said, it is a power that the Constitution says the president has, and there is no way in hell that the next president should be overriding the constitution.

The autopen thing sounds like a flimsy excuse, and I sure hope that nobody is taking it seriously.

How do you know the President actually did it, if he didn't sign his own name with his own hand?

I think the autopen is a smoking gun. That's not the President, that's a machine. There is no proof the President did anything, and if he wanted proof, he needed to use his own hand to physically sign his name, because that is the evidence of the President's will.

The argument isn’t that the auto pen per se invalidates the claims. Instead the claim is that Biden didn’t authorize the final batch of pardons and therefore was not an action of the executive.

Tomayto Tomahto. That way of putting it doesn't make me respect the argument any more.

Is your argument that it is obvious that Biden was the one who signed the order? If so, I would disagree.

Is your argument that it is obvious that regardless of who signed the order, Biden was mentally competent enough that he clearly understood and approved of the orders being issued in his name? If so, I would certainly disagree, given that we appear to have at least one observed case where Biden had no awareness of one of his own executive orders.

Is your argument that it doesn't matter? If so, I strongly disagree. I am not willing to accept "presidential power" being wielded by unknown staffers on behalf of a mentally-vacant president. That would seem to be straightforward fraud. It is true that I probably cannot prove that this is what happened in this case, but it is at the least a live possibility, and forcing the issue seems like a good way to actually address the extremely large and extremely damaging conspiracy to conceal Biden's incapacity.

Trump Derangement Syndrome Utterly Vindicated, Season 10, Episode 19.

Trump promised to act in a lawless, corrupt, and abusive manner. Lo and behold. I don't know if the cruelty is the point, but it certainly seems like a KPI.

The trouble is, of course, that admitting the TDSers were right either requires openly admitting that you're evil

that order may have been issued after the gang members had already left US soil.

Even assuming this is true, crime does not become legal because you do it really fast. The Alien Enemies Act doesn't apply, and the administration claiming they can nullify due process is textbook tyranny.

  • -11

become legal because you do it really fast.

Exactly this has been the modus operandi of immigration advocates and migrants themselves. I don't want to be rude, but man, your side (assumption mine) smashed the defect button so hard on that issue, I'm having a hard time not laughing out loud at your complaint.

Not just here but see also some of the covid measures (I’m thinking of the rent moratorium where the government was far more abusive compared to here)

TDS in real life. You are assuming a crime. There is a dispute over whether the Trump admin complied with a questionable order. They are arguing they did by dint of completing the removal prior to the judge issuing the order which therefore would not apply.

TDS in real life

Yes, that's my point. Trump sycophants constantly dismissed his critics as hysterical, but they keep being right.

They are arguing they did by dint of completing the removal prior to the judge issuing the order which therefore would not apply.

I am saying that that is comical bullshit, they know it's bullshit, and their actual argument is "who is going to stop us?"

  • -13

You're getting too inflammatory here. Accusations of bad faith require a more careful, substantive argument.

It really is funny to me. First there is a very real question about who is breaking what norm—namely there is a real core question as to whether the judge had any business doing anything here. He may be the one acting lawlessly.

Second, if the argument is “his policy is right and he is technically legally right but we think the spirit of legal process precludes him from acting in a way” then I don’t think you’ll find many takers.

If the judge was acting in good faith, I would accept the legal process argument. Thing is, I don't think he was; I think he's just using whatever power at his command to stymie the administration. And having seen the lower courts do this for 17 years (since Heller) AND COUNTING on the Second Amendment, I'm not particularly impressed with the idea that one should always obey and let the proces play out.

The relevant question is whether the decision is correct. There is an appeals process to decide that. Disobeying an order because you don’t like it has far more destructive downstream effects.

The relevant question is whether the decision is correct.

This question becomes not relevant if the case isn't finally decided until Trump has left office, and even less so if, once the case has already been decided (in the administration's favor), lawyers still file for injunctions based on an incompatible view of the law, and lower courts still grant them. That's just abusing process to gain an undeserved outcome.

We had laws that imposed significant restrictions on immigration. People who disagreed with those laws could have abided by them until such time as they could change them. Instead, they organized at a national level to simply ignore them. What you are seeing now is the destructive downstream effects of that decades-long policy.

I stopped believing in naive "rule of law" some time ago, and for what seem to me to be solid, objective reasons. I fundamentally do not believe that we have been operating in an environment of rigorous rule of law, which Trump is now violating; rather, it seems to me that Trump is simply playing the game the way it has been played for decades now.

What’s the limiting principle here? What principles could Trump violate that would give you pause? Or is your judgment based solely on whether he is, at any given moment, helping the people you like and hurting the people you hate?

More comments

They are arguing they did by dint of completing the removal prior to the judge issuing the order which therefore would not apply.

It's not about the removal, the order would have applied to anyone that was in the custody of the US government at the time it was made.

Well that is the argument. The judge said “don’t follow through with your the EO” and Trump said “well we already followed through with some.” That is, by its terms the order did not apply to those already removed even if still in custody.

The court order is a red herring. Trump using the Alien Enemies Act to deport Venezuelans is illegal because the predicate condition of the act, “whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government,” is not satisfied. Is the assertion that the Venezuelan government is behind the Aurora apartment takeovers?

It's the perogative of the executive to conduct foreign affairs, with explicit carveouts to Congress for the approval of treaties, appointment of ambassadors, and declarations of war.

For example, the normalization of diplomatic relations with China was executive action, both by Nixon and Carter.

So it is within the President's authority to say "I recognize Tren de Aragua as a competing government engaged in civil war against the internationally recognized government of Venezuala. And I further assert that they are sending agents to invade our territory."

I suppose this would also open up to all of the gang members to prosecution under FARA.

The classic definition is that government has a monopoly on the use of force. I think it is fair to describe these gangs as having that monopoly in areas they control and trying to extend that into areas of the US.

Is it obvious? No but it isn’t crazy and again not sure justiciable.

These are “or” statements, and the operative one is “predatory incursion” - which you call bad behavior. It is also backed by the actions of the Venezuelan state facilitating the movement of these gang members to the U.S.

I'm skeptical, but if it turns out that Tren de Aragua is taking instructions from the Venezuelan government, which is not in fact impossible, he's got a case.

Was it not an invasion when Belarus flew in millions of foreigners and dropped them off right at the EU border? Smells like an invasion to me.

What about the prisons and asylums that Maduro allegedly emptied for the express purpose of sending those people to the US? And the forign governments that paid (with receipts) millions of dollars for bus tickets, guides, free food, phones, and maps to transport millions of people directly to the US border?

That is not what most people would call "invasion", no. It's bad behavior, but just because someone acts like a jerk in ways which involve people arriving in a country does not make it invasion.

I mean, at some point, it is an invasion. We’re seeing them act to get millions of people across the borders, in some cases releasing them from prisons, and the resulting mess is causing material harm to us by draining our resources and creating chaos in our streets as many of them turn to gang activity to support themselves. At what point does the USA get to call it an invasion?

I get that there are technicalities in the law. Gang syndicates are not technically a country, even if they can take control over parts of their home country. It’s not technically an invasion because they’re not in the military and don’t have direct orders from the home country to do this. But it has the same kinds of effects. We’re spending ourselves broke feeding this horde, and they’re causing crime rates to go up and filling our streets with drugs. But all good, they don’t have official orders.

No, it doesn't become an invasion just because it has bad effects on us. Words mean things, and an invasion isn't "lots of people arrive here and it causes problems". There's more to it than that (intent is a big one, and imo unarmed civilians don't qualify as an invasion either).

Trying to redefine "invasion" in this way is no different than when leftists try to redefine "violence" to include things they don't like. It's not reasonable, in either direction, to redefine words just because you feel strongly that something is bad.

I mean the issue here is that Theres so much hanging on the verbiage that I think there are gaping holes in our ability to protect ourselves. There are lots of non-state actors who would love to be able to disrupt the United States. And the loophole as I understand it is that as long as tge entity sending people into the country is not a legal state and the people sent are not legal members of a military organization, that there’s basically nothing we can do. They can flood the streets with drugs, commit crimes, possibly even commit terrorist acts, and there’s no way to do anything.

Keep in mind that non-state actors can be pretty powerful. ISIL never officially had a state, but it had effective control of a good chunk of MENA and carried out pretty horrific executions. Al-qaida goes without saying. Sinhola syndicate, MS-13. These groups have effective leadership and often control territory.

I think to tie the government’s hands in dealing with gangs that have effective control over their countries of origin through corruption and outright violence just means that their problems are going to end up here. Problems like drug cartels being able to control government officials (Plata o Plumba — silver (a bribe) or lead (aka killing you or your family)) are common occurrences in South America. If the people who can do that in El Salvador do so American cities, that’s not a minor issue.

It was deliberate, specific, and intentional. When Belarus flew in planeloads of people from around the world, bussed them directly to the border, and ordered them to go forth, they were sending invaders into Europe. These people were recruited, paid for, and ordered to invade Europe at the command of Lukashenko and Putin.

How can you defend this despot's invasion just because these people aren't technically enlisted in the Belarusian armed forces?

Maybe "Infestation" would be closer to the intended meaning?

Words mean things and you have adopted a non-standard understanding of invasion that lacks common use meanings.

More comments

Who gets to make that determination? Is that determination judicable or is it a matter of appreciation by the President?

It's not clear that it would matter where an individual seeking habeas specifically is at the point of a court order. The order is directed against US government officials, at least insofar as they have custody of the individual (e.g. they haven't been turned over to someone else) at the point in time when the order was made.

I do expect that the courts will accommodate the deportations and set up some minimal due process at least for the individuals to make any claims of US citizenship or other status that would entitle them to stay. That seems like a very basic process that could happen fast enough to satisfy the administration's needs while also muting some of the more crazy claims (made without evidence) that even US citizens are being swept up and deported.

It all seems like a very shallow dispute. I'm sure the Supreme Court would not throw up any major hurdle while also abiding recent precedent that lets the DCs fashion appropriate review (ala Boumediene & Padilla) short of a full-scale (and slow) trial.

It all seems like a very shallow dispute.

The core dispute here - is a determination by the President that an "invasion" exists under the Enemy Aliens Act justiciable - is not shallow. It is as fundamental as constitutional disputes get. Either legal immigrants enjoy the rights that the Constitution grants to "persons" (as opposed to "citizens of the United States") or they do not. And if the administration's interpretation of the Enemy Aliens Act is correct, then they don't - because the President has the right to grab any non-citizen they want and ship them off to a foreign prison without meaningful judicial review.

Ignoring the merits for a moment (and you shouldn't - it is probably the most important constitutional case since the War on Terror), the procedural issues are not shallow. The problem of cases of national significance being heard by forum-shopped district court judges has been getting worse for a long time and has hurt both sides (nothing being done to Trump is fundamentally different from what Judge Kacsmaryk did to Biden), and probably requires Congressional action to fix - a process for enjoining facially illegal executive policies is necessary, and right now that process is to file suit in any district court with jurisdiction. If district courts just stop hearing this type of case then there are a whole load of illegal or unconstitutional policies that can't be litigated. (Including, among others, the Biden student loan scheme - these issues are profoundly bipartisan). And the procedural moves taken by the administration are utterly outrageous to the point where a private litigant who tried it would go to jail without passing Go - the administration moved the subject matter of litigation out of the jurisdiction while the hearing was going on in the courtroom and the government lawyer claimed not to know what was going on.

So the issues we have at stake are:

  • Do legal immigrants (including green card holders - if there is an legal "invasion" then they are exempted from the Tren de Aragua proclamation as a matter of grace and not obligation on the part of the administration) have rights, like at all?
  • What is the procedure for judicial review of an executive policy which may be facially illegal and cannot or should not be litigated piecemeal by individual litigants with standing?
  • Can the administration circumvent court processes (including habeas corpus) by flying detainees out of the country to a foreign prison before the judge has time to finalise an order?

Do legal immigrants (including green card holders - if there is an legal "invasion" then they are exempted from the Tren de Aragua proclamation as a matter of grace and not obligation on the part of the administration) have rights, like at all?

Also to be clear, the answer is in the affirmative. They have all the rights there in the Constitution.

But they don't have a right to stay in the US, except as delineated in 8USC (various, it's early I don't feel like collecting all the cites) explaining where the Executive (usually the AG) administers the legal immigration system.

If the government can round you up in the middle of the night and ship you off to a foreign prison before a court has a chance to hear your case, you do not, in fact, have any of those rights. The arrangement between the US and El Salvador isn't functionally a deportation - it is a prisoner transfer. The 4th and 5th amendments are fairly obviously implicated. Conditions in Salvadorean jails are bad enough that the 8th amendment is being violated if prisoners are held there on behalf of the US (as Bukele has claimed). Bukele has also said that he wants to cover most of the costs of running the prisons with forced labour, which is a 13th amendment violation as applied to people who haven't been convicted of a crime.

Munaf v Geren directly forecloses those constitutional claims as it pertains to the actions of other governments even with respect to US citizens.

It does not appear to go that far; the case is about US citizens who voluntarily traveled to Iraq and committed crimes there. This is easily distinguishable from those sent involuntarily by the US to El Salvador.

But the principle is that the US is not responsible for the treatment of detainees by forces outside our control.

In addition, the government of El Salvador appears to be acting as an agent of the US here - if Bukele's public statements are correct then the US is paying an annual fee per prisoner in the same way that they would contract with a domestic private prison operator. That is a very different situation to Munaf v Geren which involved the US handing people over to an Iraqi court for trial under Iraqi law for crimes committed in Iraq. El Salvador isn't exercising its own jurisdiction here - its interest in the detainees is the cash they are getting from the US.

It is as fundamental as constitutional disputes get. Either legal immigrants enjoy the rights that the Constitution grants to "persons" (as opposed to "citizens of the United States") or they do not.

They absolutely do. Even illegal immigrants get those rights -- you can't go around subjecting them to cruel punishments!

because the President has the right to grab any non-citizen they want and ship them off to a foreign prison without meaningful judicial review.

I think there is going to be a compromise where there is some judicial review, that's what I wrote!

But those on the left have to understand that the process due here is not going to be some unlimited thing. It's going to be in line with what the courts ended up with after the Supreme Court laid out Boumediene, Padilla and Rasul and so forth.

Can the administration circumvent court processes (including habeas corpus) by flying detainees out of the country to a foreign prison before the judge has time to finalise an order?

Ultimately I think this is going to go in your favor. Detainees are going to have a probable cause hearing in which they can assert citizenship or other lawful status.

What is the procedure for judicial review of an executive policy which may be facially illegal and cannot or should not be litigated piecemeal by individual litigants with standing?

That's a normative judgment for which there is voluminous discussion. I don't necessarily disagree, but it's hardly an obvious claim.

They absolutely do. Even illegal immigrants get those rights -- you can't go around subjecting them to cruel punishments!

Given that Trump and Bukele are publicly boasting about the tough conditions in Salvadorean prisons (which would be dubiously legal in the US under current 8th amendment jurisprudence), Trump is unaplogetically doing just that by proxy.

I agree he shouldn't be. That is why I say this case is important - because Trump thinks that he has found a legal blackhole that nullifies the rights of foreigners living in the US, and there is a reasonable chance that he either wins on the merits when the case gets to SCOTUS or successfully ignores an adverse court ruling.

Munaf controls though.

Do legal immigrants (including green card holders - if there is an legal "invasion" then they are exempted from the Tren de Aragua proclamation as a matter of grace and not obligation on the part of the administration) have rights, like at all?

This has been answered; they do indeed have rights "at all". The question is how far they extend.

What is the procedure for judicial review of an executive policy which may be facially illegal and cannot or should not be litigated piecemeal by individual litigants with standing?

This does not matter here. The courts can still review the deportations that have taken place; it is not as if there are no remedies available. A court could, for example, order the re-admission of illegally deported aliens. Thus there is no issue with litigating it by individual litigants with standing.

Can the administration circumvent court processes (including habeas corpus) by flying detainees out of the country to a foreign prison before the judge has time to finalise an order?

Of course they can; there is no law or rule providing for an automatic stay pending a court proceeding in these cases. I'm somewhat skeptical of this sort of thing. I'd be a lot more skeptical, however, if I wasn't fairly convinced the opposite was also occurring -- courts making bad-faith snap decisions just to stymie political enemies in the executive.

This does not matter here. The courts can still review the deportations that have taken place; it is not as if there are no remedies available. A court could, for example, order the re-admission of illegally deported aliens. Thus there is no issue with litigating it by individual litigants with standing.

Can the US courts order detainees released from a Salvadorean prison? Bukele doesn't think so, given his "too late" tweet.

This isn't a deportation case - this is a detention without trial case.

One is definitely sucking two's oxygen out of the room in public discourse- even the Spanish normie radio station in a public place earlier today interrupted the music to discuss it as breaking news but I haven't heard anyone talk about the deportations case.

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.

The version I heard was that the EOs and pardons are being voided on the basis that Biden wasn't aware of them. As in, someone else wrote the pardons and EOs and signed them with Biden's signature without any involvement from the President himself. If true, the autopen is not the source of the issue.

I've been seeing that style of argument pop up a few times lately, and it never fails to annoy me.

The general form is:

  • Alice: I believe X because [strong argument A], [strong argument B], [strong argument C], and [supporting/trivial argument D].

  • Bob: Why does Alice think argument D is sufficient on its own? It's clearly trivial.

See also: "Why doesn't Pierre Poilievre get his security clearance?" (because the government has tied a gag order to the briefing. If he accepted under the current terms, he couldn't be an effective leader of the opposition.)

Would you mind expanding on that? If Poilievre gets the security briefing and couldn't share what's in it, how does that make him less effective than not getting the security briefing in the first place? Either way, he can't talk about it. What am I missing?

Currently, he can talk about anything he knows or suspects. After the gag order, he wouldn't be able to talk about the entire topic. This is because lawyers are smart enough to not fall for this trick from SSC:

Your best bet is to call every psychiatric hospital that they could plausibly be in and ask “Is [PERSON’S NAME] there?” Sometimes, all except one of them will say “No”, and one of them will say “Due to medical privacy laws, we can’t tell you”. I know this sounds ridiculous, but it really works.

See this editorial for a more in-depth explanation:

But the reasoning was hardly nefarious. It was because receiving such briefings would have circumscribed what Poilievre could say about Chinese interference, a point on which everyone agrees. As the leader of the Opposition, Poilievre believed, reasonably I would say, that any briefing offered would be used as a way for the government to get him to stop criticizing it over its lax attitude to election security.

It's a very old rethorical trick to always respond to the weakest argument your opponent makes in a debate, and to not argue too broadly lest you open yourself to attack and tie yourself down into a position that can be beat down.

Slippery and annoying though it is, it is effective, which is why all good politicians do it.

It occurs to me that I still don't know any trustworthy media organizations which cover matters in-depth enough to satisfy someone who wants to understand a situation.

How would one actually investigate this in a factual sense? Biden can't be made to come back and testify (it's clearly under executive privilege) about how he did them.

It seems like a claim that can never be answered in any kind of satisfactory manner.

The issue as i understand it is that someone in the White House allegedly logged in to a work-station using the president's credentials at a time when Biden was demontrably not in DC, and started issuing orders as the president.

In a sane organization comprised of reasonable and competent people the resolution would be a simple matter of asking Mr Biden, who else had access to his username/passwords etc... and if he had specifically authorized any of them to issue this order on or about that date.

If Biden's response is anything other than "Oh yes that was so-and-so, we discussed the order over the phone and I approved it" the order is invalid and someone is clearly guilty of falsifying an official document.

I think the burden of proof is gonna go the other way around, if this came up in a prosecution, the department of justice would face the burden approving that the pardon was not authorized by the president.

My understanding, is if Biden just wouldn’t say anything at all

Biden doesn't have to say anything, but it could prevent a witch hunt that involves subjecting Biden's entire staff to hours of grueling interrogation. It's a criminal investigation and the staff don't have any privilege, so Trump can certainly make their lives a heck of a lot more difficult even if it's over nothing.

Executive staff have privilege with respect to any communication with the President about policy. This is what Trump himself claimed w.r.t McGahn!

We will see

Assuming that Biden truly was unaware of the pardons when they were signed - something that seems depressingly likely to be true - to what extent could the pardons still be valid if Biden was briefed on the pardons after-the-fact and gave a verbal or written OK as having his approval? I'm not a lawyer or constitutional scholar, and I wonder if there's anything even similar to a precedent for something like this.

This is the version i heard as well.

That is my understanding of the issue as well. As usual, Trump is using some highly "gotcha" wording that the media will pounce on (calling it now- "autopen" will word of the year 2025) and dissect the many reaspns why he's technically wrong, only to miss the larger point entirely- namely Biden was not the person issuing the orders/pardons, ergo none of them have any legal basis.

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.

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

Looks like it was postponed. As I wrote elsewhere, I think the whole thing ends up being a very minor tempest, although I could be wrong.

I’m not sure how justiciable this case is. See Ludecke v Watkins.

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.

It was in a state of war with Germany in 1948?

The whole point of that opinion was that state of war is non justiciable. That is, if the president determines there is a state of war then there is a state of war.

I agree factually this is different but if you take that precedent seriously then I’m not sure you get to a different answer.

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.

The formal peace treaty with Germany legally ending WW2 wasn't signed until German Reunification in 1990. The Allies withdrew from most of Germany voluntarily in 1949, but remained in belligerent occupation of Berlin. West Germany never claimed sovereignty over West Berlin. East Germany's claim to East Berlin was not recognised by the UK, France or the USA, and the Soviet Union agreed not to press the issue and that the four occupying powers' troops could behave as if Berlin was still under joint occupation.

So "The US was still legally at war with Germany in 1948" was uncomplicatedly correct. The SCOUTS verdict was that if a legal state of war exists, the question of whether or not it is a real war allowing the invocation of Presidential war powers is non-justiciable.

West Germany never claimed sovereignty over West Berlin

Interesting! If I understand the Wiki article right then West Berlin representatives in the W-Germany parliament only had advisory roles and all W-Germany laws were “shadowed” by W-Berlin senate, with a few exceptions like there was no draft in Berlin had no army. Theoretically they could have gone the independent way like Singapore.

They couldn't have gone the way of Singapore without the permission of the occupying powers (arguably including the Soviet Union). The West Berlin senate was an institution of non-sovereign self-government with similar status to a Territorial legislature in the US. There was even a US Court for Berlin with a superordinate jurisdiction to the local courts established by the senate, although it only ever heard one case - as an amusing trivia point it is the only US Court for a place beginning with "B", as no state name does.

The Allies handed sovereignty over Berlin to the reunified Germany by treaty - the occupied Berliners didn't get a say in it.

I think that is a very pale reading of the case.

V-E day already occurred! There was a cease fire and surrender! Men kissed nurses on the streets of NY! The war was over. Nobody but nobody in 1949 was talking about the on going war effort. If you look at the history books, they will tell you the war ended in 1945.

There was a real question of whether the president could years after hostilities ended deport someone under the AEA. After all, the obvious reason for the act was to protect the homeland against a fifth column of sorts and in 1949 no one was concerned about that.

Despite all of that, the court said “we will not review the president’s claim.” That is very deferential.

Indeed Trump’s actions are clearly more within the ambit of what the AEA was worried about (ie foreign actor exerting physical control / damage to the homeland) compared to the post WWII fact pattern of precedent.

Could you point to the technicalities and say Ludecke is not controlling? Sure. But if you take that case seriously, then it is hard to argue the president doesn’t have the power to declare an invasion in this case.

I do agree the class question is trickier.

That question (ie is the person in the class) seems to be justiciable but potentially waived.

Tbf this isn’t a common law and no one has a strong grounding on it

No the statute isn’t limited to whether congress declared war. Yes in Ludecke there was a war declared and the question was when the war ended. The court took a rather broad view as to who gets to answer that question (ie the executive and not the courts). The logic of Ludecke seemingly would apply for an invasion determined by the Executive.

I agree that the question of whether the aliens are in the particular class is justiciable but arguably ACLU waived that claim when saying the plaintiffs were all aliens from Venezuela.

The class is members of Tren de Aragua. Not all aliens from Venezuela - Trump isn't claiming that the US is at war with Venezuela. Under the WW2-era jurisprudence whether any given alien is a member of the class is justiciable, including via habeas corpus. That is why Trump had to ship the detainees out of the jurisdiction before a court could rule on what is going on - if he has to litigate each detainee's membership of Tren de Aragua individually then the policy goal of the whole scheme is not achieved.

I agree there is a real question on class (I noted it in my post).

I am sympathetic to the Buekle (sp?) approach: when the gang members literally print on themselves who they are the risk of a false positive is extremely low and individual adjudication should not be necessary since shock and awe is needed.

I’m not sure to what degree the founders would have contemplated an international crime ring that sells deadly drugs and enforces their terf with extreme violence. Sure they’re not a state in the sense of a flag, national anthem, and Olympic team, but on the other hand by such a measure neither are, Palestine, Islamic State, Tibet, or Transnitria. If members of a group affiliated with Hamas infiltrated the United States, then is the Alien Enemies Act out of the question? Palestine isn’t a state per the UN, so Hamas isn’t the head of a recognized government. So, could we do something here?

The same session of congress that passed the Alien Enemies Act also passed the Alien Friends Act (which expired and is no longer on the books) which authorized the President to deport any alien that “he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof”, so it seems like they contemplated a difference between insidious conduct that just happens to be committed by an alien, and an alien hailing from a hostile foreign nation.

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.

Given that they had direct experience with various forms of piracy, I think this claim is hilariously ahistorical.

Pirates had a defined status at the time- hosti humani generis, enemies of everyone, for whom jurisdiction didn’t apply.

Absolutely. And the AEA wasn't part of the response to them.

Sure they’re not a state in the sense of a flag, national anthem, and Olympic team, but on the other hand by such a measure neither is Palestine, Islamic State, Tibet, or Transnistria.

Definition of "state" under the Montevideo Convention:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.

Using that definition, Wikipedia includes Palestine and Transnistria in its list of sovereign states. The Islamic State and the cartels fail item b, while Tibet fails item d. (On the same page, Wikipedia does explicitly note that Palestine "has no agreed territorial borders", so one could argue that it fails item b as well.)

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.

The question is more basic than that- Presidential powers are only valid if they are excercised by the President. The claim at this point is straight up fraud and forgery- someone (the NY Post and a few other outlets claim to know exactly who this "senior staffer" is) in the Biden whitehouse is alleged to have issued Executive Orders, using Biden's autopen signature without any discussion of the matter with Biden exploiting his diminished capacity. So the claim has nothing to do with Biden's state of mind in signing the pardons, its that Biden did not in any legally relevant way actually sign the pardons. Given that a) it is indisputablely an autopen signature on the orders in question, and b) Biden's mental decline was such that he either didnt remember or was completely ignorant of his LNG export EO when discussing it weeks later with the Speaker of the House, there is perhaps more merit to the claim than appears on first glance.

Brilliant! This is just beyond the pale of stupidity.

I even think the described actions are probable and philosophically valid (but having many people assist with execution of the same office is a quite complicated and rather dehumanizes the office until the actual holder seems irrelevant.) There are plenty of historical analogues with idiot kings etc. Anyway, sliding all the way down the slope, unless Trump is flying the plane, deportations until the executive branch are illegal, yah enforcing murder's illegality is impossible because only the very, uh, lightning bolt which broke the stone on the 10 commandants, or the person who wrote e.g. §§ 1111 (calling murder unlawful) is eligible to detain or punish; but this person used a tool, a pen and we don't know whether someone else used this pen and was not... And can we just disregard all laws written by lobbyists?

Can someone steel man this?

  • -12

This is exactly the reason why the 25th amendment should have been invoked for Biden, in that any question that the President is not indisputably in command of the powers of his office causes a constitutional crisis. There's a reason why the Vice President is temporarily sworn in when the President is put under anesthesia: even though it is highly unlikely he will die it A) ensures continuity of power and B) prevents mysterious commands issued from the surgery table.

That a cabal of staffers could usurp the power of the presidency should not even be in the realm of contemplatable, let alone allegeable.

The Democrats are taking the consequences of... whatever they did in Biden's tenure. It's up to them to demonstrate that the former president was compos mentis during such and such a date as they claim. Surely, remembering the past three months is not a extraordinary ask, is it? Or perhaps, in lieu of an extraordinary claim, the ex-president can write his own name in court.

Or perhaps drawing a clock would be more illustrative.

How does accessing the current mental faculties of Biden, whether satisfactory or not, prove anything about what they were like three months ago?

If he's old enough that a progress of months is enough to make meaningful differences in his cognition then he was not of sound mind to be president. A motivated actor (and Trump definitely is one) can hammer that wedge to say that all of Biden's acts and orders were not, in fact, issued by him, and thus the pardons are not pardons at all. They are frauds created by staffers without his knowledge.

Such an allegation is essentially unprovable, as you say. But so as long as the DoJ holds this opinion, things will get... interesting.

If he's old enough that a progress of months is enough to make meaningful differences in his cognition then he was not of sound mind to be president.

I feel obliged to note that this isn't necessarily the way it works. If he had a stroke between then and now, for instance, that's a sudden loss of brain function regardless of what that function was before the stroke. Hell, if he had a stroke before the use of the autopen affecting his motor control, that would explain why he couldn't sign his name without necessarily implying anything about his cognition.

Cognitive decline is not always gradual, and loss of motor control without cognitive decline is a thing (see: Stephen Hawking, who certainly wasn't a vegetable).

Such an allegation is essentially unprovable, as you say. But so as long as the DoJ holds this opinion, things will get... interesting.

I think if it comes to a court considering a prosecution for which a defendant has held up a seemingly-valid pardon, they are going to require the DOJ to prove this claim. If that happens, they are gonna lose -- since this is, as we all seem (?) to say, unprovable.

It would be a highly costly victory for the other side, though: having to, in public, defend the veracity of very unpopular and uniquely broad pardons by refusing to cooperate and invoking privilege.

More comments

Anyway, sliding all the way down the slope, unless Trump is flying the plane, deportations until the executive branch are illegal

Under normal circumstances, I would expect this statute to cover it:

Title 3 USC §301. General authorization to delegate functions; publication of delegations. The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part.

However if the President isn't compos mentis, there's a question whether he's able to functionally delegate those powers unless he had something previously set up, either via another statutory scheme which explicitly authorizes the devolution of powers to another executive officer, or via regulation and/or EO. And obviously here there's the factual question of whether the "senior staffer" who allegedly hijacked Biden's autopen" fills the relevant criteria of 301.

And obviously here there's the factual question of whether the "senior staffer" who allegedly hijacked Biden's autopen" fills the relevant criteria of 301.

He clearly doesn't because EOP staffers are not Senate-confirmed. Either Biden ordered the pardon or it is illegal.

Trump doesn’t need to fly the plane, he needs to sign the order to fly the plane. The Constitution lays it out:

The President … shall have Power to grant Reprieves and Pardons for Offences against the United States …

The office of the President isn’t vested with the authority to pardon, but the President himself. Ascertaining whether the President personally authorized or delegated a pardon is meet, just, and right given reasonable doubt.

DOJ's rebuttal is ???.

Were I in the DOJ lawyer's unenviable position, I think my hail Mary throw would be to subpoena Joe Biden himself and get him to declare in court that he did, in fact, authorize the pardon. I'd also try to schedule the testimony for as late in the day as possible.

He's absolutely immune from having to testify about such topics. And rightly so.

That's precisely the reason I called it a hail Mary. At that point, I'd be more worried about Looking Like I Was Doing Something than winning the case.

In what way is he absolutely immune from having to testify on this topic? As IANAL, I'd be interested in any of the resident lawyers offering insight on this topic.

My understanding is that executive privilege is not in fact absolute, and it only comes in to play when revealing the information would impair governmental functions. It's difficult to see how it would apply in this instance, since this factor actually cuts the other way: not revealing the information would hinder governmental functions.

At the very least, Biden's refusal to simply testify that he did in fact issue the order to process the pardons would certainly allow the court to draw a negative inference on the matter. It's a pretty simple question to answer. Of course, doing so would open Biden up to further questioning around his mental capacity. C'est la vie.

IANAL either, but my take here is that if the questioning body could get around executive privilege by asserting that "not testifying hinders (whatever it is I'm doing)" then the privilege would be meaningless. It's certainly always true that refusal to testify hinders something.

Moreover, it's not supposed to be about how any specific instance of testimony impairs the functioning of the government. Rather, it's that, a priori, individuals within the executive need to be free to share their candid thoughts and that the threat of testifying would impair the President's right to receive that advice.

He's immune from having to testify, maybe, but it would be so trivial for him to show up, say "yep, I authorized this" that refusing to do so would raise questions. His refusal to testify on its own would not push towards a verdict that goes Trump's way in the courtroom, but it would certainly go Trump's way in the public opinion.

The pardons, esp Hunter's, were already extremely unpopular. It's hard to see how further public opinion against them would matter if the courts rejected the DOJ's argument.

The pardons themselves are not the only thing this would affect. The narrative is that Americans in 2020 voted for Biden to "restore normality", anything that shatters this idea that the Biden administration was "normal" is good for Trump. Shows that "normality" is not a product of an administration but of its media coverage. That if the media is uninterested in presenting an administration as "chaotic", then it will seem "normal".

Agreed.

I don’t recall offhand any historical precedent where executive branch officials have embarked on such an audacious action to anticipatorily stymie the proper functioning of a federal court—let alone to do so in the midst of a judicial hearing.

Various litigants do this do this literally all the time. Biden's DOJ mooted various COVID litigation by recsinding the order before the Supreme Court could rule on it (Payne v. Biden, Biden v. Feds for Medical Freedom, and Kendall v. Doster).

Maybe it's a bad thing, but "I can't recall offhand at all" when it happened multiple times in the last decade is completely retarded.

Mooting a case by voluntarily ceasing to do the thing litigated against is legally dubious, but it is very different from doing the thing before (or, in this case, during) the hearing and claiming the case is moot because it can't be undone.

The tactic is so common it has a latin phrase -- fait accompli. This doesn't mean it's good, but it is certainly not unprecedented in the slightest.

fait accompli

It's French, for all that I know. But I also don't speak Latin, so maybe it's the same there?

What about mooting a case where you mandated a bunch of people take a vaccine, after your mandate has caused most of them to do so. And now it's moot because you no longer mandate it but those that took it under compulsion can't un-take it?

[ FWIW, I'm extremely pro-vaccine, I was like first in line at our FEMA site to get it from the national guard. This isn't an object-level anti-vax take]

This seems pretty damning.

It seems damning if you accept the paragraph you laid out as true, which it is not. There is fairly on point historical precedent in the case of Schlesinger v. Holtzman. In that case, no less than a Supreme Court justice ordered the executive branch to stop bombing Cambodia. They proceeded to continue to bomb Cambodia through all of the court proceedings until his absurd order was vacated, as this order will eventually be if it continues to be pressed, because like the Holtzman order, it is comically illegal for the judge to attempt to do what he did.

Once again a familiar pattern is emerging in this Trump administration, just as in the first: Many norms are being broken, but almost never by Trump, it is almost always the response to what Trump is doing that is unprecedented. Attempting to exert control over international relations at 8 PM on a Saturday from a DC court is, again, another norm-breaking act by Trump's opposition.

Many norms are being broken, but almost never by Trump

Come off it. You can argue that invoking war powers in peacetime is technically legal, but it is definitely unprecedented.

Impounding spending, while not unprecedented, is a clear breach of norms about separation of powers (and the law, assuming that the Impoundment Control Act is constitutional).

Obfuscating the org chart of a powerful office within the EOP, for example by issuing a press release saying that Elon Musk is head of DOGE and then saying in a court filing that it is actually Amy Gleason, is a breach of norms about basic honesty (and possibly also perjury).

On the other hand, district court judges issuing nationwide injunctions against executive policies that appear to be facially illegal is now, unfortunately, entirely normal.

Come off it. You can argue that invoking war powers in peacetime is technically legal, but it is definitely unprecedented.

Are you familiar with the 2001 AUMF? There are 24 years of precedence, including the use of this authorisation to justify the NSA's warrantless surveillance.

Are you familiar with the 2001 AUMF? There are 24 years of precedence, including the use of this authorisation to justify the NSA's warrantless surveillance.

The AUMF was a declaration of war in all but name, and led to an actual shooting war in Afghanistan. I would prefer that the Congress use the words "Declaration of War" when it exercises its article I power to declare war, because I am a spergy believer in rectification of names, but all three branches of government treated the AUMF as a declaration of war.

The 2001 AUMF is actually still in effect and gives the President total authority over who qualifies as a target. If you want to claim that there's something unprecedented about the use of wartime powers in supposed peace you're just flat out wrong - Trump wasn't involved in politics at all when the 2001 AUMF was put in place, and previous governments have used it to justify the warrantless surveillance of the entire American population. There are over two decades of precedents for this kind of behavior! I actually agree with you that this is bad, but you just look uninformed if you think that this is some brand new abuse of power.

It’s also worth pausing on how difficult it was for J6 defendants to get lawyers yet gang bangers from Venezuela get the ACLU within minutes.

There is something rotten in Denmark

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.

It's not because of the autopen, it's because of the accusation that Biden was too incapacitated to even know it was happening. That the broad authority to grant pardons was not, in fact, being exercised by the president at all. And I for one would love to see Biden deposed about, well, anything having to do with these pardons and see what he remembers.

If Trump invalidates these pardons, what do you think is going to happen to his own pardons when the Dems return to power?

Nothing? Trump is not invalidating anything, because if the allegations are true, the pardons were never valid legal instruments to begin with. If the allegations are true, the President did not issue any such pardons, and since the President is the only person who can issue pardons per the Constitution then no such pardons exist (and also some staffer is guilty of fraud, forgery, and a large number of other crimes).

Trump has talked extensively about his pardons, and is on camera signing (and posing with!) the relevant documents.

I've already seen how this goes. President Trump signed an executive order banning men from women's sports. He made the signing into political theater by having girls crowd round his desk as he signed, giving away the pens that he used, and making a show of making the signature extra special.

He will do the same with his own pardons, giving a little speech about each pardon, condemning the corrupt legal system, and boasting of putting things right by exercising his power of pardon.

Then what? There may be a precedent of voiding pardons that were (a) auto-penned (b) President Biden doesn't step up to say "I commanded that, it is not a case of some-one else borrowing the auto-pen to create a fake pardon behind my back." Such a precedent cannot be used to void a pardon personally signed by President Trump as part of broadcast political theater.

The presumption in the West ever since Augustine is that acts of official power derive their efficacy ex opere operato. The official acts of the president derive their authority not from the president personally, but from the constitution.

If he goes through with it it's great politics.

Regardless of the outcome it puts the news cycle on track to have to defend Biden's antics in the future or at least remind everyone that they happened, and even if Biden survives until it becomes an issue it won't be in a state amenable to his own defense.

The risk is that beating on a defeated old man alienates people who would want to talk about something else than old men grudges, but given Trump's also been pretty energetic about doing stuff this time around, it comes off more as a victory lap.

Long term, I'm not sure it's a good move to start questioning the legitimacy of presidential acts after the fact though. Especially pardons.

What is also looks like is Trump trying to find a way to punish his enemies for investigating his attempted coup.

Unfortunately, this probably won't hurt him all that much politically (much like his actual attempted coup).

  • -10

this probably won't hurt him all that much politically

Then why is it relevant?

Or punish his enemies for making shit up.

The risk is that beating on a defeated old man alienates people

I don't know about the country at large, but after 2021's vaccine mandates and milk raids, there is a sizable chunk of rural PA/WV/KY/TN that loathes Biden with an unrelenting intensity that I cannot adequately describe in human words. That particular demographic isn't going to get sick of it anytime soon.

Why were the 2021 "milk raids" a big deal?

'This particular demographic' is the Amish.

It wasn't only the Amish directly, even if they were the primary targets. For a lot of people, seeing swat teams raiding their neighbors' barns was the first time they'd ever really been forced to actually look at government overreach in a way that they couldn't ignore or rationalize.

Long term, I'm not sure it's a good move to start questioning the legitimacy of presidential acts after the fact though. Especially pardons.

Certainly there should be some time limit on it; I don't think ~3 months is too long though. If "Presidential pardons" were being issued without the actual approval of the President, that's just plain illegitimate. I doubt Trump can prove this is the case, however.

If Biden's staff was idiotic enough to write down that they were taking actions without the assent or against the wishes of the President maybe the acts in question can be held to be fraudulent, but that's as far as this could ever go.

I very much doubt you could hold acts by an incapable president as void if they were taken before let alone without the invocation of 25a by the VP.

I very much doubt you could hold acts by an incapable president as void if they were taken before let alone without the invocation of 25a by the VP.

I would agree, I said just that elsewhere. But Trump is alleging Biden wasn't even involved, which is a very different matter:

In other words, Joe Biden did not sign them but, more importantly, he did not know anything about them! The necessary Pardoning Documents were not explained to, or approved by, Biden. He knew nothing about them, and the people that did may have committed a crime

Without some kind of paper trail, this is going nowhere because all that need to happen is the staffer says "Biden told me to do it" without Biden contradicting him.

I don't know who this mythical normie is that would be offput by doing a victory lap on Biden's demented half corpse. You are basically plugged into the MSM narrative and have forgotten all the gaslighting about Biden being "sharp as a tack" and the hilarious lies about him running circles around people at the White House, or you have a memory longer than a goldfish are are furious. There is not a lot of in between.

Well, I guess there are the liars who covered up his dementia for 3.5 years and are now writing books about the coverup, like they weren't a part of it.

A lot of people would rather the government focus on policy than on scandals. They don't care about Biden's dementia or the J6 Committee's conduct; they care about what Trump can do for them in the here and now.

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.

Whether it wins or lose, at the very least it'll force out in the open discussion of just how incapacitated Joe Biden was at the end of his term, which is likely to be very damaging to Democracts and to the Biden admin people involved, so good for Trump. As for whether it wins, there's rumors that an aide was just running the show with no input from Biden, not just using an autopen; if that's true, and Biden is not willing to lie to cover it up, who knows how that ends?

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