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PaperclipPerfector  1d ago (text post)   8197 thread views

Culture War Roundup for the week of April 28, 2025

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About a year ago I made a post (with motte discussion here) about an immigration reform bill that would have handed Republicans a major victory on the issue with the most conservative comprehensive reform in a generation. Dems would have agreed to the bill since Biden's whoopsie defacto-open-borders made the issue a huge liability for them. Trump tanked it for purely cynical reasons, and the discussion hinged on whether the legislation was somehow a "trap" since Dems were agreeing to it, and whether Republicans should risk getting nothing if they lost in 2024. I contended that Republicans should take the deal and then maybe do additional legislation that was even more stringent if they won, that way they'd have something even if they lost, which was about at a 50% chance on betting markets at the time. But MAGA and Trump won out, going all-in on the double-or-nothing strategy.

In a sense that bet paid off, since Trump won and got a trifecta! There's just one little problem: he's not actually trying to pass any comprehensive enduring immigration legislation. There was the Laken Riley act, but it's quite small in scope. Overall, it's back to his first term tactics of mangling the interpretation of laws through executive orders, and hoping the courts don't stop him. It's likely to be about as successful as it was in his first term. Why do it this way? Why not just ask Congress to give you the powers to do what you want so you don't have to gamble on the courts? Matt Yglesias has a potential explanation in his mailbag post

I think this is pretty easily explained as the intersection of the filibuster, Trump’s authoritarian temperament, and Republican Party domination of the Supreme Court.

We saw progressive versions of this kind of thinking in things like The American Prospect Day One Agenda from 2019 or the late-Obama effort at dramatic climate (Clean Power Plan) and immigration (DAPA) policy via executive branch rule making. But Democrats get much less leash from the judiciary than Republican do, because the Supreme Court is very conservative. We never got to see what the universe in which Biden halts all new oil and gas leasing on federal land looks like, because he just lost in court.

At the same time, Biden genuinely did not have the Trump-like aspiration to be a plebiscitary dictator. When he lost in court, he mostly folded and moved on. If anything, his administration was happy to be able to tell the Sierra Club that he tried and then reap the economic benefits of record oil and gas production. Biden really enjoyed legislative dealmaking, was very good at getting bipartisan bills like CHIPS and IIJA done, spent decades in the US Senate, and was frequently the Obama administration’s “closer” on the Hill. There’s a reason Frank Foer’s admiring biography of Biden is titled “The Last Politician.”

To Biden, shooting the shit with other elected officials and striking bargains was the peak.

Trump, despite the art of the deal bluster, has never shown any interest in legislative dealmaking. At no point during either of his terms has he attempted to engage with Democrats on passing some kind of immigration bill. He spiked the bipartisan border security bill from the Biden era, and has never gone back and said something like, “If we tweak these three provisions, I’m okay with it.” It’s just not of interest to him — he wants power. And the broader conservative movement has become weirdly deferential to that, both because it’s a bit of a personality cult and also because the filibuster has acculturated everyone to thinking of this as being the way the government ought to work.

A bunch of people have asked me whether the 2024 election outcome doesn’t make me glad that Democrats didn’t scrap the filibuster. But honestly, I feel the exact opposite. I would be much more comfortable with a world in which the answer to the question “Why don’t you just get Congress to change the law?” wasn’t just “Well, Democrats will filibuster if I try.”

So MAGA as a political movement has a better chance to change immigration than Republicans have probably ever had, and they're pissing it away with Trump cultism. They'll try to hide behind excuses like the filibuster, which could be ended with 50 votes in the Senate, and Republicans have 53 right now. Alternatively they'll try to hide behind political nihilism and say that passing laws doesn't matter since Dems could just ignore anything they pass -- this is wrong because the laws could help Trump (or other Republicans in the future) do things while there's a friendly president in power, and they could do a variety of things to try to force the Dem's hand when out of power like writing hard "shall" mandates in laws, giving Republican governors or even private citizens the standing to sue for non-enforcement, attach automatic penalties like sequestration-style clawbacks if removal numbers fall below some statutory floor, add 287(g) agreements with states giving local officers INA arrest authority, create independent enforcement boards, etc. None of these are silver bullets obviously since Dems would always be free to repeal any such laws (there are no permanent solutions in a Democracy, just ask Southern Slavers how the Gag Rule went), but that would cost them political capital or otherwise force them to try gambling with the courts if they tried to circumvent things by executive fiat.

But doing any of this would require telling Trump he needs to actually do specific things, and potentially punish him in some way if he fails to enact an ideological agenda he (vaguely) promised. That's very unlikely to happen.

I guess I still don't actually understand what your working model is here. Setting aside whether the new legislation would have been good or not for the moment, it seems clear and obvious that there are plenty of statutory reasons for removal or denial of entry that weren't being used. With that fact well established (at least to me), I immediately become very skeptical of anyone that tells me we need new legislation to accomplish something that they're not even trying to do with what's already on the books. So skeptical, in fact, that I tend to think there's an ulterior motive - perhaps there's some poison pill in the law I missed, perhaps they want the optics of saying they did something, perhaps they're shooting for a compromise lock-in that I don't want. From a game theoretic perspective, I would love an off-ramp from this equilibrium, but it's very hard for me to believe that the Defectbot that just did 243 consecutive tats has responded by agreeing to cooperate after only one tit.

I guess our disagreement is about whether the current laws provide statutory reasons for removal or denial of entry?

I guess I still don't actually understand what your working model is here.

I don't think I speak for OP here, but I think the best working model I've found for the behavior of both parties on immigration issues is something more personal and emotional than rational:

Democrats have a vague idea that there should be some limits on immigration, but mostly don't want to make any migrants feel bad. They will reject any course of action that might make migrants feel bad. This is based in a primordial sense of empathy: Talking to an immigrant you know they are a fellow human being trying their best and you don't want to hurt them gratuitously.

Republicans have a vague idea that there should be fewer migrants, but mostly don't want to make any illegal immigrants feel good, and preferably want to make migrants feel bad. This is based in a primordial sense of justice: migrants broke the law and must be punished not rewarded.

I think this model will prove to be significantly more predictive of actual policy than pretty much any other model that I see people working with. When people ask, "if they were really for/against immigration, why wouldn't they do X?", the answer will frequently line up with whether it will be too mean or insufficiently mean rather than whether it appears to accomplish the stated policy preferences.

Can we call it too mean/too naive for a bit of equilibrium?

I think too nice/too mean provides better equilibrium.

Actually that would provide negative equilibrium, and it is the default I expect people would go to so I'm stepping in quick, because the equilibrium I'm looking for is in emotional valence. Too nice/too mean would solidify the manichean premise that one side are being 'good' while the other are being 'bad' and I think we see enough of that already. Some republicans might revel in the cruelty, but that's just the lizardman constant, some number of people are always doing that no matter the side. Republicans need a way to defuse that angle, and I think naive is a strong response - to the point without being too insulting.

So skeptical, in fact, that I tend to think there's an ulterior motive

It’s the same “legalize another 20 million illegal immigrants and then we’ll stop illegal immigration, we promise :^)” song and dance that Democrats have been doing since the era of Ronald Reagan. The first part always happens and then second never seems to materialize. That in turn incentivizes millions more illegal immigrants because they figure that if they can hang on long enough they will eventually get citizenship.

And even the most-ironclad, loophole free law you can write is useless if the administration isn’t going to enforce it.

And even the most-ironclad, loophole free law you can write is useless if the administration isn’t going to enforce it.

Strong disagree here. You're overindexing on what happened in the last few years and assuming different legislation would be functionally identical because that's just how the system works. In reality, a lot of what Biden did was available due to how current laws are written, e.g. not having hard "shall" clauses that gives wide bearing to executive fiat.

US v. Texas had been decided before your post last year on this topic..

Yep, lack of standing of Republican plaintiffs is another thing that legislation could explicitly address.

Did the bill you highlight as The Best Option In Decades involve anything that would have done so? Or did it demand every case get sent to the DC Circuit, which has both a long history of limiting immigration enforcement and unusually strict standing analysis and limits on what judges could be appointed that favor progressives?

But after even that, would it matter if they did? From the opinion I linked above:

But once it is posited that a plaintiff has personally suffered a “de facto” injury, i.e., an injury in fact, it is hard to see why the presence or absence of a statute authorizing suit has a bearing on the question whether the court has Article III jurisdiction as opposed to the question whether the plaintiff has a cause of action. In the end, however, none of this may matter because the majority suggests that such a statute might be unconstitutional. Ante, at 10, and n. 4.

Oh, well, that's just Alito's summary, surely he must be exaggerating th-

For an arrest mandate to be enforceable in federal court, we would need at least a “stronger indication” from Congress that judicial review of enforcement discretion is appropriate—for example, specific authorization for particular plaintiffs to sue and for federal courts to order more arrests or prosecutions by the Executive. Castle Rock, 545 U. S., at 761. We do not take a position on whether such a statute would suffice for Article III purposes; our only point is that no such statute is present in this case.4

4 As the Solicitor General noted, those kinds of statutes, by infringing on the Executive’s enforcement discretion, could also raise Article II issues. See Tr. of Oral Arg. 24–25

This already was a "shall" law. Indeed, the oral argument (and that Solicitor General question on constitutionality!) was driven by the extent that "shall" had already been sprinkled throughout the relatively recent additions to immigration laws, driven by long periods of neglect by Democratic administrations!

What possible reason could or should anyone expect new versions to behave any differently, or actually apply longer than needed for additional epicycles to develop? How green would someone need be to think it'd just be This One Statutory Construction Gimmick that would make it matter here?

The Lankford immigration bill didn't change venue as far as I understood it, so you'd sue in the district where you're harmed, the appeal to your regional circuit. There was nothing special about DC in the bill.

You're right that the bill didn't change anything explicitly about standing, but I never argued that the bill should be the last word on the issue, simply that it was far better than the status quo for fixing a lot of other things. Now that MAGA won the 50-50 it's functionally irrelevant since Republicans could make whatever type of bill they want, within reason.

In terms of US v Texas, standing demands injury, causation and redressability. The case held Texas had injury & causation but no judicially cognizable interest absent special statutory authorization. In other words, it wasn't a case of just ignoring "shall" requirements, it's that the laws were poorly written (or weren't written with these types of plaintiffs in mind in the first place). By contrast, in Nielsen v. Preap (2019) and Johnson v. Guzman-Chavez (2021), the Supreme Court enforced the INA’s “shall detain” for criminal-alien detention. Those were “shall” duties plus clear statutory schemes that provided judicial review. Long-term neglect by prior administrations underscores why Congress must match “shall” with funding and remedies. When that has been done, “shall” has repeatedly proven enforceable.

The Lankford immigration bill didn't change venue as far as I understood it, so you'd sue in the district where you're harmed, the appeal to your regional circuit. There was nothing special about DC in the bill.

From your own link of the full text of the bill, the one that's in your write-up from the last time you tried this:

JUDICIAL REVIEW —Notwithstanding any other provision of this Act, judicial review of any decision or action in this section shall be governed only by the United States District Court for the District of Columbia, which shall have sole and original jurisdiction to hear challenges, whether constitutional or otherwise, to the validity of this section or any written policy directive, written policy guideline, written procedure, or the implementation there-of, issued by or under the authority of the Secretary to implement this section.

This actually shows up three times, once in SEC. 235B. PROVISIONAL NONCUSTODIAL REMOVAL PROCEEDINGS., and a second time in SEC. 240D. PROTECTION MERITS REMOVAL PROCEEDINGS, and a third time in ‘SEC. 244B. BORDER EMERGENCY AUTHORITY. It's the only times 'original jurisdiction' shows up in the entire bill!

Someone told you this, a year ago. In the thread you're linking to, now!

You're right that the bill didn't change anything explicitly about standing, but I never argued that the bill should be the last word on the issue, simply that it was far better than the status quo for fixing a lot of other things.

You never argued that, either; you just asserted it, and then shrugged when people repeatedly pointed that there was no reason to suspect any such improvement, and many reasons to suspect that it would make things worse. Your post last year was nearly eleven months after US v. Texas's opinion had dropped, and yet here today you still repeatedly pointed to "shall" terminology that US v. Texas held does not and likely can not ever be legally binding.

In terms of US v Texas, standing demands injury, causation and redressability. The case held Texas had injury & causation but no judicially cognizable interest absent special statutory authorization.

Yes, yes, I can read. I can also read the multitude of examples in the dissents and concurrence for Texas highlighting both how capricious the application of this novel standard was, and the opinion's unwillingness to commit to any statutory language being able, either as a matter of constitutionality or practice, of having done so in the immigration context.

By contrast, in Nielsen v. Preap (2019) and Johnson v. Guzman-Chavez (2021), the Supreme Court enforced the INA’s “shall detain” for criminal-alien detention. Those were “shall” duties plus clear statutory schemes that provided judicial review

Oh, boy, I'm sure these are accurate and complete summaries of the cases at hand. Let me get a big drink of water and --

Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from jail, and §1226(c)(2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one exception not relevant here).

Respondents, two classes of aliens detained under §1226(c)(2), allege that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)–(D). Because the Government must rely on §1226(a) for their detention, respondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status.

That is, Nielsen revolved around the question of whether a statute commanding that the government "shall take" custody of this class of criminal aliens only applied if those criminal aliens were detained immediately after release from jail. It had nothing to do with a requirement for the government to take custody of those criminal aliens and not doing so.

Respondents are aliens who were removed from the United States and later reentered without authorization. When DHS reinstated their prior removal orders, each respondent sought withholding-only relief to prevent DHS from executing those orders based on fear of re- turning to their home country as designated in the removal orders. While respondents’ withholding-only proceedings were pending, DHS detained respondents, and respondents sought release on bond, which was initially denied. The Government opposed their release, maintaining that because respondents were detained under §1231, not §1226, they were not entitled to bond hearings.

That is, Guzman-Chavez revolved around whether the government was allowed to do something that statute mandated that it "shall" do, not whether the government must actually do so.

Long-term neglect by prior administrations underscores why Congress must match “shall” with funding and remedies. When that has been done, “shall” has repeatedly proven enforceable.

So, now you've proven zero out of three attempts to show "shall" as enforceable in any approach at an immigration detainment or deportation context, despite the very laws in question being driven by long periods of administrative neglect of the law. Do you care to try a fourth time? Do you think it's a coincidence that you keep conveniently making this class of mistake? Do you think anyone reading you could possibly miss it?

It's another thing that Joe Bidens poison bill did not address.

I agree that Biden had the power to have Obama-level illegal immigration, i.e. about on par with Trump's numbers. I also agree that his refusal to enforce the laws on the books is what caused the spike in immigration. Then he did start enforcing them once it became clear that immigration was a huge liability, hence why immigration numbers started plummeting before Trump took office. I strongly disagree with the notion that the bill was somehow a "trap". It was created by a Republican immigration hawk, the text was out there for all to read, and Trump couldn't come up with many actual issues with the bill so he just cooked up lies to try to sink it. Legislation can have unintended side effects, but it's not like its a haunted house with secret compartments filled with woke lawyers and a million illegal Hondurans. Policies are also not etched in stone and can be amended if they turn out bad.

But you can put all that aside since that's in the past now. MAGA won the 50-50 and now has (or had) the opportunity to create almost whatever immigration bill they wanted. And what did they do with that chance? The answer seems to be "sweet nothing".

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