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One of the problems with judges is that there is no accountability for legislating from the bench unless extremists are in power. Under moderates or even principled radicals, judges can be impeached for personal misconduct, but not for bad rulings that run contrary to the basic desires of most people. This inevitably drives radicalization.
For several decades, in both North America and Europe, judges have ruled on immigration cases in ways that fundamentally violate the popular will, and have unjustifiably prevented the deportation of people that most citizens did not and do not want to share their countries with. Unlike politicians, the people cannot really even try to remove judges, because while some are technically political appointees, the ‘profession’ has largely wrangled the ability to regulate itself away from legislatures in both spirit and practice.
The historical Anglo-Saxon judicial tradition upon which the Common Law is based always afforded judges the right, and indeed in many cases implicitly obligated them, to respect the people’s will. If a crowd of people clamor outside the courthouse for a man’s innocence or guilt, judges were and should be swayed by it. For millennia, and to the great detriment of the Jewish people, Christians blamed the Jews (the civilians) and not Pilate, who ultimately sentenced Christ, for his execution. Less (although sometimes not much less) controversially, there are countless cases in the English legal tradition in which judges heeded the popular call for a specific kind of justice.
I don’t want to live in an unaccountable dictatorship, in the Chinese legal system in which lawyers are either set dressing, fixers or enemies of the state or powerful officials with a very short career and freedom expectancy. But that is inevitable in the West unless judges use their verbal ability to sense the way the wind is blowing on immigration and start giving the people what they have so often and so politely requested.
They are required to respect the people's will as enacted by the legislature, not the people's will as reported in a pew opinion poll or an online forum.
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Can you be more specific? In the USA, immigration courts handling individual cases are "administrative courts," within the Executive, so the judges can be changed with each administration. "Article III" Senate-confirmed, appointed-for-life judges rule on applicable statutory and constitutional questions.
The problem is not with these immigration “judges”, but with actual Article III judges like Boasberg or Xinis, who override the determinations of Article II examiners at will, making it effectively impossible to enforce law at scale. If every illegal gets Article III judiciary proceedings before finally getting removed, we will never be able to actually enforce the law. Imagine if military had to get a court decision before being able to kill an invading soldier.
What in the world are you talking about? In the Garcia case (that's in front of Xinis), it was the Article II examiner (in 2019, under Trump!) that signed the order withholding removal.
I really don't comprehend how you character this as overriding that determination. If anything, Boasberg is doing the polar opposite -- enforcing it.
The problem is not with the withholding order. The problem is that apparently everyone expects infinite process before you’re actually able to execute any removal.
In the Garcia case, the government made a mistake by not complying with that withholding offer (I’ll assume that it was indeed a mistake, and not deliberate flouting of the order, because otherwise the below argument doesn’t apply). Liberals, moderates, and centrists seem to believe that the outcome at hand means that the Garcia’s right to due process was not met, and district and some appellate judges seem to believe that too. There is an implication here that if Garcia’s due process rights were met, he would not have been deported to El Salvador. This is not so. There is no amount of due process that will prevent government from ever making mistakes of this sort, and excessive efforts of judiciary and activists using the judiciary to prevent mistakes meaningfully detract from the Executive’s ability to execute its core function.
The simple fact is that there is absolutely no existing process that could have prevented this mistake. Garcia had final, confirmed on appeal order to be removed. He had no further ability to appeal it. If the government removed him to a different country, that would have been it. This is how the process works, not just in immigration, but in every case.
For example, imagine you’re a tenant who stopped paying rent. Landlord goes through legal process to get you evicted, you appeal, but since you’re clearly in the wrong, ultimately you get a final eviction order. Accordingly, you get a notice from sheriff’s office that you’ll get evicted on May 1st, approved by court. However, on April 30th, the sheriff looks at the calendar wrong, and thinks that your eviction date is today, and evicts you. A clear mistake, in violation of court order to remove you on May 1st. However, is it a violation of your due process? No, there was absolutely no judicial process that you were not given access to, that would have prevented your too early eviction. What is the legal remedy that you should be accorded after the fact? I actually don’t know. I would actually be fine with no remedy or damages at all: the government does extremely detrimental things to people all the time that have no remedy whatsoever, the sovereign/qualified immunity and all that, but if you insisted on some damages, I’d accept the sheriff reimbursing you for any actual cost caused by too early eviction, like eg. one night hotel stay.
Now, imagine a judge ordering the sheriff to kick the landlord out of the freshly vacated home, and effectuate your return to the home that you were about to get evicted from anyway. It just so happens that you were also a wanted fugitive on federal charges, and as you were getting evicted by state officers, federal officers use the opportunity to arrest you and throw you in federal prison. The judge then require the state sheriff to somehow “facilitate” your release from federal prison, without specifying in any way whatsoever as to how exactly you are supposed to do it, or what that even means. Lastly, it issues a statewide injunction on any evictions unless you get one more hearing after final (already appealed) eviction order, with another ability to appeal the outcome of that hearing, to prevent additional future eviction mistakes.
Most people would see this as a mockery of justice, an excessive concern for the rights of someone who is clearly in the wrong, and meaningful making it even more difficult for people who are in the right to have their rights enforced. And yet, here we are.
What bearing does being "in the wrong" have on a persons rights? How does what's happening in the Garcia case make it more difficult for people who are in the right to have their rights enforced?
Americans are in the right to want to deport tens of millions of illegals, and excessive concern for the rights of illegals make it meaningfully more difficult to enforce the right to remove them.
I'm one of them!
Who are you to say my concern is excessive?
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That's not true, there was certainly a way to meet his rights and still deport him to ES. At the very least, the executive ought to dissolve its own order.
Seriously? There is no amount of due process that will prevent the government from not following its own orders?
I feel like "there is a reliable central database run by a group half as competent as the dude responsible for delivering burritos" isn't even an amount of due process, it's a basic measure of government competence.
I'm not sure a case about the judiciary restraining a dysfunctional government is really meaningfully detracting the government from getting its shit together. If anything, a kick in the ass might actually help them realize that in order to execute their core function, they first need to achieve operational competence.
No, because they were not aware of that order. They should have, but they weren’t. That’s why it was a mistake. If they were aware of this this order, they would have either followed it and deported him elsewhere, or seeked dissolution before deporting him to El Salvador. Your retort only makes sense under assumption that they knew about the order but chose to ignore it nevertheless. In my previous post I explicitly assumed this to not be the case, and said that if it was the case, then the situation and the analysis is completely different.
Yes, exactly, because after following all the due legal process, someone can still make a mistake. Think about my example of sheriff looking at the calendar wrong. I’m not saying that what they did was right. It was wrong. However, it was not a wrong that could have been prevented by scheduled due process.
I actually think that the US government does not have nearly enough databases of its citizens and present non-citizens, but yes, I fully agree that what happened here was incompetence. The point is, incompetence will occasionally happen, due process cannot and will not prevent all incompetence-induced errors, and it is not possible to prevent every case of incompetence before the fact with some pre-defined process without significantly compromising effectiveness in executing basic functions.
Maybe, but I suspect that what happened here is that they wanted to actually execute their core function before activist judges tarpit them, and rushed things so much that they missed an order that someone failed to input properly into database back in 2019, or something like that. This is not meant to imply that they didn’t do anything wrong, it’s just operating in hostile legal environment will cause mistake rate to be higher.
I think we agree on a number of things: this was incompetence and that due legal process will not prevent all incompetence-based errors.
I think where we disagree is that this particular error was incompetence of such degree as to be a violation of due process (all but conceded by the government anyway) and that violations of this kind (ignorance of a duly entered legal order that they had a legal duty to know about) are the kind of things that can be prevented. One doesn't need to think that every error can be prevented to believe that such a glaringly obvious one can be.
I think they are quickly going to learn that this strategy. And the sooner they internalize that if they don't do so, they are going to be restrained from doing anything, the sooner that lesson gets passed up the chain that if their leadership wants anything done, they better do it properly.
No: this was a violation of Garcia’s right, but it was not a due process violation. Whether error is egregious or not is orthogonal to whether it’s a due process violation.
Most of them, certainly. My point is that there is a trade off here between error rate and your effectiveness. The more efforts you take to prevent any and all errors, the harder it will be to actually get the job done. Democrats understand this very well: that’s how they effectively banished almost all of death penalty in US. That’s why I oppose excessive concern for due process, because I know that it’s not principled stance, but rather instrumental, only to achieve a specific nefarious political purpose.
Yes, but even so, the glaringly obvious mistakes will nevertheless occasionally happen, and sometimes there will be little legal remedy available too. I’m willing to consider proposals to make errors less likely, but only if they are paired with proposals to make the whole process faster and more effective. Of course, Democrats won’t entertain deals like that.
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Boasberg doesn’t have anything to do with Garcia
Ya mixed them up. Fixed.
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Oh, we tried the will of the people thing in Germany. The legal phrase was gesundes Volksempfinden (the healthy moral sentiment of the people).
It closed all the loopholes with minimal legislative effort. Of course, it also really lowered our ranking with regard to rule of law, so we were persuaded to give it up.
A judge should apply the laws, not bent them to what he perceives as the will of the people. If the outcome of a trial depends on whether there are demonstrators outside rooting for a conviction or an acquittal, then we can safe a ton of court costs and just let the mobs with their nooses run the show instead. (The popular sentiment will certainly influence the jury, but even there -- with the contested exception of jury nullification -- the task of the jury is to reach a verdict based on the evidence, not popularity. Arguing that someone is a terrible person and should be punished no matter if he did the act he is accused of is not how things should be done.)
If the framers of the constitution had wanted the judges to just follow the way the wind is blowing from the Trump administration with regard to immigration, they could just have given the president the right to replace any and all federal judges whenever he felt like it. They did not, and I do not think that was an oversight on their part.
Do you mean that the court of public opinion could de jure influence outcomes in the court of law?
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Because the New Testament correctly attributes the cause of Jesus’ death to the Jews who instigated His crucifixion. The Romans were the useful golem who achieved the Pharisees’ ends; the Roman provincial leadership were never much interested in what they perceived as internal Jewish squabbling over another potential Messiah. To wit, from 1 Thessalonians 2:14-15.
“For you, brothers, became imitators of the churches of God in Christ Jesus that are in Judea. For you suffered the same things from your own countrymen as they did from the Jews, who killed both the Lord Jesus and the prophets, and drove us out, and displease God and oppose all mankind…”
I think it's fair to blame some Jews (not even all Jews) of the first century for Jesus' death. The real error that Christians made was a) blaming all Jews for this, and b) transferring that guilt onto their descendants. No crime is so monstrous that an entire race of people should carry that guilt. There were plenty of Jews even at the time who were innocent of the crime (for example, Mary, all the apostles minus Judas, etc), let alone their descendants centuries later.
The gospels are very clear that guilt for the déicide transfers to the unconverted descendants of the Jews(that’s what ‘orémus pro perfideis Judaeaorum…’ actually means).
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If the New Testament is to be believed (and I believe it) the Jews that killed Christ willingly chose to transfer that guilt to their descendants (inasmuch as such a thing is actually metaphysically possible I suppose, but I'm not here to debate Original Sin):
"And all the people answered and said, 'His blood be on us and on our children.'"
Matthew 27:25
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I’m not really interested in arguing over who was to blame for the death of Jesus. Clearly It was obviously extraordinarily historically convenient for the later extremely successful proselytizing of the religion to Roman elites that the singular Roman elite who factually ordered the death of and chose the method of execution of (and had the power to spare) Jesus was absolved of all responsibility and even venerated by many early (and some current) Christians, but that is not an argument in and of itself.
I think the point of Jesus’ death is that he was killed by the legal leaders, religious leaders, and the general public. It wasnt one party but the whole.
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Not a theologian, but the whole conversation strikes me as Big Dum. How is Jesus supposed to die for our sins, if he does not, in fact, die? If anything the Jews should be seen as the same kind of useful golem to Gods grand plan that he says the Pilate was.
Melito of Sardis, "On Pascha," writing sometime between 120-160.
It's important to remember that Christianity rejects Consequentialism - even if God can bring good from evil, it's still bad to be the one whose hands are in the cookie jar. It was God's role to save, not humanity's role to pin Him down into a specific method of salvation.
Yes, but what I was taught was that what killed him was our sins (I'll take a guess that this is what is meant by "by you" here), not the specific actions of the Pilate, the Pharisees, or the population of Jerusalem.
Specifically here, Melito is explicitly talking about Jews. There may be some devotional aspect intended, that recalls to us our sins and their consequences, but look at the context:
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