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Every time I read something hysterical on this forum I always flip what is being talked about in my head:
Less tongue-in-cheek, it seems like the firebrands on the topic of immigration on the US are pretty much cheering for the suspension of habeus corpus: deport by any means necessary, due process be damned. It's unfortunate that it's gotten to this point. But I also dread the unintended consequences / friendly-fire. I guess at least if you're on the conservative side of the political spectrum you don't have any fears of political persecution under this administration.
The most fundamental authority of a sovereign entity is determining who is permitted within its borders. The US government has, fundamentally, unconditional authority to expel a foreigner.
There's this argument I once came across in a book on Christian apologetics. The book isn't interesting enough to name, but I remember one argument it made. The book largely endorsed the standard view of cosmology while attempting to complement its position with various applications of the teleological argument. One was based on Earth's magnetic field. The argument goes, the field has a measurable rate of decay, so if we look back, at some point in natural history we would find a period when the field would be as strong as that of a neutron star.
I see this, the "neutron star fallacy" everywhere. Racism, sexism, religious bigotry. If we were so racist, so sexist, so bigoted, if we were so tyrannical for so many, then how were we ever liberated? And yet I know slopes are slippery. It's our world, when "indulgent" behaviors of any variety are made easier, we slide right into them, and we keep sliding. When the federal bureaucracy had its small departments with narrow scopes, soon enough they became massive departments with broad scopes. But there was a point when we could deport foreigners with minimal hurdle, and now we can't.
The power hasn't been reduced, it's been redistributed. The judge exercises greater authority than the President, and where the judge is seen as a check, who checks the judge? A structure by all impressions designed to eliminate such methods of account, for the requirements of censure and removal. It is the system turning a tyranny upon itself, because the judge involved here didn't order the deported's return because they care so much about the law, they ordered it because they hate so much the man behind the deportations.
"It's a slippery slope to mass deportations of undesirable citizens." That never happened here. "They're due habeus corpus" no, not for expulsion.
Slopes are slippery, yeah, but if you're like me (up until this moment) you might visualize the slope as starting at the left and falling to the right. I feel the last century can be neatly explained by visualizing it as starting at the right and falling to the left.
How do you know the judge's motivations? And isn't this begging the question of how the Executive being check-free would be better? Do you also dislike checks and balances, when you disagree with Executive policy?
The WH Press Secretary says they're looking into the legality of deporting undesirable citizens. Have a legal citation for expulsion being an exception to habeas corpus?
The nicer interpretation is they hate Trump. The thoroughly evidence interpretation is they hate the US and are actively working to destroy it.
I've had a problem with the operations of the judicial branch since well before Trump. I oppose any judge below SCOTUS issuing any federal injunction for any reason. The essential structure of the sovereign United States is Executive, Congress, SCOTUS. Executive appointments have no authority to check SCOTUS, it follows circuit courts have no authority to check POTUS.
Sovereigns owe foreigners no rights. A foreigner has no claim to habeas corpus, let alone any appeal for their deportation, as sovereigns may unconditionally expel foreigners. Citizens are owed due process, which is fulfilled in trial and verdict. I agree that a state should not be able to remove citizens who are otherwise-non-criminally-undesirable, but the conflation of deporting foreigners or banishing violent criminals with latter tyranny is historically baseless and at best maudlin idealism and at worst fearmongering weaponized in service of preserving the tremendous numbers of illegal aliens in this country.
The UK practiced transportation for centuries, now they won't deport serial rapists.
If a foreigner has no claim to habeas corpus, how should claims of citizenship by individuals/non-citizenship by the state be adjudicated?
Ideally:
Alternatively:
In practice, any individual who fails to produce such documentation is a foreigner and present illegally (note: foreigners are legally required to carry ID). As foreigners may be expelled unconditionally, the court has no jurisdiction over the sovereign exercise of the right of deportation, and so foreigners have no legitimate claim to habeas corpus specifically in the matter of their deportation. That "precedent" says they do, and that we do in practice afford them habeas corpus, does not make it legitimate. The sovereign right of deportation is a first principle authority, it cannot be legitimately reduced or abrogated. That is, a state may, without qualification, always and in all cases legitimately remove foreigners from its borders.
Do you have a citation for this? I want to be make sure I understand which of your statements are factual and which are policy preferences.
Can this crime be punished without trial?
In your "ideal" adjudication, what prevents ICE from deporting citizens in bad faith and/or due to its demonstrated incompetence? (Even if you think the risk is low, the hazard must be addressed.)
Which precedent and why should we question its legitimacy?
The citation is pure reason.
Definitions:
Premises:
Conclusion:
A sovereign's supreme control of territory grants a priori authority for the unconditional expulsion of foreigners:
(A) ∧ (B) ∧ (C) ∧ (D) ∧ (E) ∧ (G) ∧ (H)
I disagree. The leftist establishment uses such fringe cases to demand individual full trials for every deportation while they work ardently to increase the number of illegal aliens in this country. As with those states' issuance of IDs to illegals, the point is not the sanctity of the law or interest in a better-functioning state. The interest is in making it impossible to remove the tens of millions of illegal aliens in this country.
In practice those who cannot provide documentation are here illegally. The remaining edge cases of even several hundred homeless or otherwise profoundly socially detached citizens accidentally deported by ICE do not justify the requirement of millions of trials. But that's another excellent example, as if the homeless were institutionalized as they ought to be, there would be no concern, and then it would be well and truly an extreme minority of citizens who could not prove their citizenship. Regardless, it is not in the interest of a functional state to delay (and, given the above, ultimately fail) at the needed millions of deportations because once in a blue moon a homeless person or Kaczynski-ite is accidentally included. And of course, this would never have been a problem if politicians and billionaires didn't open the doors to millions of illegals in service of gaining future voters and cheap labor. They're causing the problem, they don't get a say in its solution.
See top. Border control is a priori to courts, habeas corpus requires court jurisdiction, courts have no jurisdiction in matters of border control. Again, they literally do, but from fundamental theory of sovereignty, they do not, and thus all actions taken by courts to limit the sovereign exercise of border control are inherently illegitimate.
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I don't necessarily disagree with this. I was literally just mocking ("tongue-in-cheek") the hyperbole of the OP that was brought forth without much forethought: reactionary doomposting.
The world has changed significantly. People used to show up on our shores with nothing more than a name on a ship manifest. Now passports with electronic components are ubiquitous and traveling without one is unimaginable. Bureaucracy must exist to manage this, no? Or do we simply turn away all foreigners based on a "vibe check" from the current executive? Bureaucracy shouldn't be judged by its size, but by its outcomes (I'll touch on that later in this comment).
This feels like a non-sequitur so I'm just going to ignore it after quoting it...
What days are you hearkening back to? I struggle to think of any notable mass deportations in the modern era. Japanese Internment Camps with FDR? Trail of Tears with Andrew Jackson? Or even further, when you were simply accepted into or rejected from based on skin tone and accent?
The legislature, which originally ceded its power for short-term political gains (thanks Newt Gingrich), but has now ceded its power for reactionary political revolution (thanks Mike Johnson).
I'm not defending the current asylum system, as the impression that it can be abused has brought us to a less-than-optimal political "middle-ground" where a few hundred judges are assigned to hundreds of thousands of cases to determine whether someone's asylum claim is authentic or not. Conservatives are on record opposing legislative immigration reform for more than a decade. Progressives do not have political power at the federal level, even if you can find soundbytes on YouTube of them getting "owned". The neoliberal Democrat centrists have never been opposed to immigration reform, and have brought forth multiple bills delivering exactly what their conservative counterparts have asked for (thanks again Newt Gingrich, who needs bipartisan legislation when we can just swing a massive pendulum between 2 shitty alternatives every couple of years).
To go even further: I do think there are going to be really difficult pills to swallow in the coming decades regarding mass migration, not even outside of borders, but within our borders as well. I don't think it's unreasonable to think that there is some potential future where we will be watching masses of people starve through binoculars across the Rio Grande. It'd be great to figure out how we can, as a nation, navigate those turbulent waters without regressing to animalistic authoritarianism, but over the past 10 years I have lost faith more and more that that's even possible.
All of this is just a play for more executive power. I don't trust that executive power won't be abused, especially given that the current executive seems to get off (sexually?) on flaunting abuses of power. But maybe there's where you and I differ in concerns about real dangers to our freedom in the coming years.
Good comment.
I invoke my "neutron star fallacy" at your reframing of the top-level comment. It's not a human rights abuse to send foreigners back to their home countries, even if they may face punishment or death. The argument goes that such "abuses" will inevitably snowball into greater tyranny but we know this never happened. It is directly analogous to the identitarian concerns I name.
Operation Wetback.
Voted removals aren't checks. A judge overrules the executive or congress, congress can vote to remove, while it takes another judge to overrule the first. The judicial checks itself. At a minimum it should be that if a judge is overruled by a superior court X instances in period of time Y, they are automatically and immediately removed from office. This maintains protection from a nearly-even congress politicizing removals (and the reciprocal gaming that would invite in a change of control) while making their accountability structural. But this also is not a check. We can remove judges ,stuff courts, the power remains, what do we do? Limit it as much as possible. The judicial effectually has authority that supersedes all others, so its authority must be the most strictly regulated, starting with all judges below SCOTUS losing the power to issue injunctions on government activity.
From 1900, every single bloodthirsty non-socialist non-communist nationalist movement emerged as a response to no less than equally bloodthirsty socialist and communist movements. No milquetoast conservative government sat by only to be taken over by reactionaries. So while I am also concerned about what horrors may lie in our future, I know they will only rise as the last reaction. My beliefs align with preventing that from happening by bringing about the people's current, eminently moderate requests. The district judge ordering the executive to bring back an illegal alien does not reduce the possibility of tyranny, it sharply raises it. Because again, the judicial branch checks itself, but these judges invite a check on power from a much different, far older structure.
Thanks for the link and jogging my memory, because I am loosely familiar with this and very familiar with Harlon Carter (amazing how history rhymes so much: parallels to be drawn between modern figures and historical figures).
My takeaway from (admittedly, briefly) reading about this operation is that the "success" wasn't strictly that the executive was able to act with impunity absent judicial oversight, but also that the Mexican government was equally enthusiastic about stemming the tide of migrants.
I still hold the position that the legislature is where the solutions to immigration should lie, and that any interaction between the executive and judicial is fundamentally suspect. I appreciate your comment, but I'm not certain that I can be convinced otherwise.
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This is an an exercise of US sovereignty and its authority, as manifest by the above.
The craziest thing is that not a single person upset about this has proposed that Congress just repeal or limit 241(b)(3) and say that everyone that got withholding of removal under it expires in 3 months.
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We're well on the well-trod path of democracies experiencing escalating norm violations that spiral into physical violence and the breakdown of traditional understanding of power divisions within the government. No country can operate solely according to a written constitution. Functional government always requires tacit understanding of proper rules and order of subordination. When a figure within the government tries to exercise merely textual or positional authority in violation of these tacit agreements, then (even if he's in the right by the rest of the law) the result is strife, unpredictability, and retaliation. Norms break down. The Overton window widens. Eventually, it widens to include physical violence, which starts with street thuggery and ends with proscriptions.
We are on Mr. Gracchus 's wild ride and there is no way off. The only thing that matters now is which faction wins. The norms are broken and can't be fixed. Sulla couldn't restore the norms and we can't either. There's no point getting nostalgic about them. The only goal now is to win.
What exactly did you mean by that? Banning political parties?
Why not? Obviously the norms keep arising in the first place.
I think he means proscription in the sense of “here is a list of people that all TRVE ROMANS have a civic duty to kill on sight”
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Yep. And each time power changes hands, even more norms will become irrelevant. The process will escalate until there's one final undeniable rupture of the old system and a new one emerges.
So why risk the other side winning? Why wait? The rupture is inevitable. We're inside the event horizon of political chaos. The only thing accomplished by adhering to the remaining rules is risking ultimate and permanent defeat. Better to act decisively, now, and win.
Even if the downward spiral from Democracy to Caesarism is unstoppable, if you act too soon or too rashly (e.g. if Caesar took the crown from Antony and declared himself Rex, the Gracchi brothers holding on to the tribunate at all costs, etc.) you run the risk of the masses and the old elite uniting to tear you down. As such, if you want to seize power you must still occasionally demonstrate obsequious adherence to the rules while working to keep the bulk of the population on your side as you slowly push the Overton window in your preferred direction (for the record, I think Caesarism is bad and this would not be a good outcome).
Also, if you are using the fall of the Roman Republic as an example, the impact of the so-called Marian reforms (I am not qualified to engage in the ancient history nerds' argument about how much Marius is actually to blame) is fundamental, and has no US equivalent. The Roman Republic became vulnerable to military coups (of which Marius' re-election as consul was the first de facto and Sulla's was the first de jure, and which continued even under the Emperors) because the citizens' army (with military service linked to voting rights in the centuriate assembly) was replaced with a long-service professional army drawn from the proles, with legions which were in practice personally loyal to their generals.
The US armed forces swear their oaths to the Constitution. While there is considerable debate about whether the Constitution is living or dead, we all agree that even if alive it lacks the necessary skills to command troops. So if the downward spiral continues much further the question becomes "Who do the troops actually take orders from?" To pick a topical example, Col Meyers thinking she could get away with her insubordinate display in Greenland suggests that there is a broad consensus among the officer corps that an order by President Trump to launch a surprise attack on an ally would not be obeyed.
The Texas border standoffs were another example on the other side of the aisle. Quite literally, the Texan troops who took control of the border were technically US soldiers and the border patrol was not supposed to let them just do that.
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This is a common problem in many countries. Sometimes I think people living in failed states and dictatorships and banana republics have a better idea of how political power works than citizens of stable first world countries. People in first world countries tend to the think of the law and the constitution like the laws of physics, or a magic spell. You just say it and if it’s constitutional and legal it magically happens. People living in the more rickety countries are painfully aware that laws and political orders are something that various people have to actually carry out, and they aren’t always going to.
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FWIW, it remains an unsolved question to what extent the President can bypass the Congressional power to declare war by simply ordering a surprise attack.
Congress has notionally stuck by the War Powers Act, no President of either party has conceded its constitutionality. The courts would punt this as a political question.
So I really don't know -- officers swear an oath that puts them in an impossible place. Certainly the practice of the country for 50-60 years has been that the President can launch some amount of limited military action without Congress, but not larger actions.
Should be may. Regardless of what the Constitution says or means, the President can do that if and only if the armed forces will reliably obey the order, which was what I was thinking about.
If the political feelings of the officer corps were such that the armed forces would reliably obey an order to launch a surprise invasion of Greenland, I suspect Meyers would not have done what she did.
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“Residents” you could have stopped at citizens but then I suppose your whole argument falls apart then doesn’t it?
I’m sorry but this asylum farce is just that. Almost none of the applicants for asylum face any real danger to themselves back home. All of them travelled to through safe countries to get here. What due process is owed to a liar seeking to exploit our goodwill?
The rights of "Residents" versus those of "Citizens" is kind of the whole debate.
Is it? Had the government accidentally deported a US citizen to an El Salvadorsn prison I don't see why they can't make the same exact argument: the courts cannot dictate to the executive how to retrieve them, it's completely up to the executive to do it or just kind of half heartedly try or just blow the whole thing off because they're too busy.
This is a pretty disturbing precedent to set if it stands.
I'd question the precedent the other way too, for the courts to dictate specific international relations outcomes seems a pretty slippery slope as well. If the court orders "return them by any means necessary" then I suppose we're all in for judicially-mandated ground invasions. If only Cheney had been aware of this One Weird Trick.
Agreed, that would also be a bad precedent.
So where do we stand? If the POTUS disappears even a US citizen to a foreign prison we just have to trust their best effort, which may be no actual effort, to bring them back? Any consequences for the POTUS here would be judicial overreach?
The US has accidentally deported citizens before. Apparently, they've been so embarrassed they tried hard to fix it on their own, with no court order needed. That's just because the executives have thought this an important norm to uphold?
To be a bit glib, we could establish a third branch of the federal government with a nebulously-defined capability to charge the other two branches (and their agents) and remove them from power as necessary when a sufficiently-large group of geographically-distributed representatives find their actions to be sufficiently out-of-line with the general consent of the governed.
As to how you'd get Congress to stop napping and actually become accountable for things again, that seems much harder. You'd think "do a bunch of questionable stuff to draw their ire" might work, but I've seen quite a bit of questionable stuff in my lifetime, and it hasn't yet.
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More like “illegal residents” and fake asylum claimants. Let’s use accurate language here, as it helps to shed light on what’s truly at stake
How does one define a "fake asylum claimant"? Looks to me like anyone claiming asylum is, by definition, a real asylum claimant. Whether the US chooses to grant them the asylum they claim, and what criteria it bases its decision on, is its own business.
Asylum is when someone fears they be killed if they return home.
It’s pretty simple to tell. Oh we have X number of people saying they will die from this country. How many people are actually dying in that country? How many safe countries did they walk through to get here?
Simple, but proceduralism is a weapon of the left, so in practice what happens is none of this basic common sense gets applied, as can be seen in the courts decision
Sure. I was just making the admittedly slightly pedantic point that the phrase "fake asylum claimant" is misleading and I hate it and it needs to die. Anyone claiming asylum is - by definition - a real asylum claimant, whether or not they actually deserve to have their claim recognized. They might very well be a spurious asylum claimant, but a spurious asylum claimant is still a real asylum claimant, in the same way that in a spurious lawsuit, a spurious plaintiff is still a plaintiff.
A "fake asylum claimant" properly defined would be someone who, say, faked paperwork about having recognized asylum-seeker status without actually submitting a request to the government. That kind of fraud might exist, for all I know. But it's not the same thing.
(Does this matter? I think so. A fake asylum claimant, in the proper sense of the phrase, would be willfully committing fraud. In contrast, many an asylum-seeker whose request should be turned down might, nonetheless, be acting in good faith; we can tell them no without lumping them in with the actual criminals. A toy example would be a guy suffering from pathological paranoia, who sincerely but irrationally thinks there are people after him. A serious example would be the scores of claimants who correctly believed their case met the criteria which have applied in recent years. It's not their fault our recent standards have been bullshit, and even if we start turning them away now, we shouldn't treat them like fraudsters.)
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I think there’s a separate question, which is a factual one about specific cases.
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Man, if only we had a third branch of government, not just the executive and judicial branches.
Are you under the impression that object level considerations matter? We're looking at a power struggle not a high school mock trial. It's zero sum. One side will win and the other will lose. One side has a lot more soldiers. How many divisions has Roberts?
At this stage in this country's political evolution, which rhymes with the end of the Roman Republic, the executive is absolutely justified in crossing the Rubicon, just as Caesar was.
Yes. Is this supposed to be a trick question?
I predict that neither the judicial nor the executive branches are going to be sufficiently defanged that the other no longer needs to compromise with them after this conflict.
I don't anticipate that soldiers will play a significant role in the conflict over the TDA deportations. Do you?
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He was not, and the executive will not be if they do.
Forget object level considerations. There are only narratives. There are no moral facts. No timeless principles except the laws of mathematics and natural selection. Whatever is, is right.
If the right seizes power, it will have factual raw material sufficient to build a "power narrative" sustaining its rule, just like every power structure has. It's impossible to say whether Trump "is" justified: there's no objective righteousness evaluation function. What matters is that if he tries something and wins, he's able to post hoc rationalize it in a way that allows the losing side (or enough of them) to internalize the change and operate within the new power structure.
Google after all did change Google Maps to read "Gulf of America".
Still says "Gulf of Mexico" from non-US IPs. Still called the "Gulf of Mexico" by everyone who isn't trying to pass a retarded loyalty test. I don't think the workers of the world were united in Havel's Czechoslovakia either, regardless of what the greengrocer said.
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You might be content to choose nihilistic "might makes right" philosophy, but I'm not. There is a moral order, and actions can be wrong even if they succeed. If Trump finds cojones, as you put it in another comment, and defies the supreme court, it will not be a righteous act of a brave man standing up to villains. It will be a naked power grab by a man who doesn't like that he can't just get his way. It will, in short, completely vindicate all the people who have claimed that Trump is an existential threat to democracy. I am not going to embrace such a path. But you do you.
Is there? I find myself unpersuaded by assertions of morality divorced from their effectiveness in achieving real world aims. Moral statements are nothing but polite fictions for aiding collective action. If this collective action amounts to escalating protection and promotion of falsehood, of what use is the polite fiction? Democracy is "good" because it's worked (better and for longer than it has had any right to work) for solving collective action problems. Now that it's stopped working, is it still good?
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Legislature to the white courtesy phone, Legislature to the white courtesy phone please.
What would be the point of legislation? To make unauthorized economic migration double-secret illegal?
There's a lot to be clarified!
To clarify the process and rights of those claiming asylum.
To clarify the appropriate standard and process for those claiming protection from removal under 241(b)(3) as Garcia did.
Heck, they could just repeal 241(b)(3) which restricts the authority of the government to remove aliens to certain countries. Or they could strengthen it.
What does the phrase "Manipulation of procedural outcomes" mean to you?
It implies that no one is exercising supervisory authority over the process and procedures to ensure they are aligned to a goal.
In the particular case of US immigration policy, that supervisory authority would be Congress .
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To "break the tie" by making whatever it was we were going to do anyway legal or illegal.
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