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If you're looking for any specific thing, my old article goes into the asylum fraud loophole that the bill explicitly would have fixed. And yes, "may" vs "shall" is a very important distinction when writing legislation. Most things are written in "may" terms as a rule to give the Executive flexibility to respond in reasonable ways if situations change. Of course that leeway can be abused which happened with immigration, and that's when "shall" is necessary if you think the Executive isn't going to do its job. If you want an example of this in action, look up 8 U.S.C. §1226(c) and court cases Nielsen v Preap as well as Johnson v Guzman Chavez
If you want another example of what legislation could fix, look up US v Texas (2023). Republicans tried to sue the federal government to get them to enforce immigration restrictions, but were thrown out for lack of standing. That's something that could be addressed by legislation.
I'm not really going to touch the rest of your post on the legitimacy of the system more broadly, since we're so far apart that I doubt it would be productive.
So, Mrs Lincoln, how was the play?
You got 'the antipopulist' literally in your name. Populists don't trust the institutions. Currently, the populists are in power. To not talk about the legitimacy of the system is a bridge too far. It would be like talking about the ancient world without mentioning Rome a single time.
I disagree with Marxists all the time (of which I share virtually no political axioms in common). But I engage with their critiques of capitalism, their attempts of creating alternate economic models. The entirety of the critique of the populists is questioning the legitimacy of the current institutions. You must answer it!
Why do your preferred elites have the Mandate of Heaven?
Or let them eat cake. Let them eat cake and choke on it. Tell the mob that they're filthy plebians and how dare they question their betters. I have heard this sentiment phrased eloquently and not, but the venom is always the same.
I don't see why it should be impossible to subset an issue and talk about particular impacts. MAGA is very uncomfortable talking about missteps Trump made, so it's clear why they'd want to move every conversation away from that towards their usual fare of talking about how "the system is broken!" and recite their usual laundry list of greivances against the dems that they've practiced dozens of times.
"OK, you keep telling me the system is broken. Now you're in charge. How are you going to make it better? What are you going to replace it with?"
I'll be happy to defend Trump's foibles and missteps if you'd like to defend the Iraq War. Or the COVID response. Or Critical Race Theory and its formalization into academia and hiring practices. Affirmative action in college recruitment. The replication crisis. Politicians and NGOs openly lobbying for open borders and the immiseration of the working class. Every single brick of the system that held it up that is gone that you don't want to defend.
And my answer to that is: I don't know. I don't know how to fix the system. But a good start, in my mind, is getting rid of everyone responsible. And it seems like you're standing in the way... for no discernable reason at all.
I'll certainly not defend any of those, since the Iraq War and CRT were definite screwups, and stuff like the COVID response I don't know enough about one way or the other (it just wasn't an issue I ever looked into all that deeply). But stuff like the Iraq War and CRT can be defanged by building better institutions through iterative improvement, rather than replacing it with Trumpism which is just so much worse. One of the big fallacies a lot of populists make is that they believe since the previous systems weren't perfect in every way, then they should be burnt to the ground. Trump is rapidly proving why that's an awful idea.
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I think there is a disagreement here about what you're saying. There are two possible interpretations of this line of argument.
This is what I think you intend to say.
This is what everyone else hears.
I think it's pretty clear that there's more to power than the text of the law. The Republicans seem to have decided to adopt a totally adversarial, zero-sum stance. They seem to have decided that any compromise with the Democrats is a strategic error. They seem to have decided to fight this battle through personnel rather than legislation.
Can you blame them?
I have yet to see any evidence that the text of the law matters at all. Not just in America but in every country, and not just laws but all written rules and regulations.
Personally, I suspect that approximately 99% of the population is functionally illiterate and operating on the level of the collective psychic unconscious. Rather than "reading" the "text" of the "laws," people simply synchronize their psychic emanations to establish what the majority of those present think the law ought to be, then act as if that was the text of the law. Only on very rare occasions does anyone bother to read what's written down, and when they do their ability to comprehend seems to be garbled by the still-present influence of the collective unconscious.
This is the only way I can explain the current interpretation of the Second Amendment of the US Constitution, among other things. If anyone was capable of reading it then surely they would understand the meaning of SHALL NOT BE INFRINGED. Since clearly they do not understand and continue to infringe regardless, they must not actually be reading it.
What's the point of writing pages upon pages of legal documents when you know full well that it will only be used as fodder for willful misunderstanding? The text of the law doesn't matter at all. The only thing that matters is who is in the room deciding how to misinterpret that text to favor them.
The Republicans have finally overcome their confusion and started fighting on the real battlefield. They've put their own people in place, and now they're the ones deciding which laws to ignore. They're deporting citizens, violating privacy, closing down whole government departments, and they're having a blast. Why backtrack now?
Seriously though. In a country where DAs routinely refuse to prosecute shoplifters because they're ideologically opposed to the concept of law enforcement, what in the world gave you the impression that laws matter in any way?
"Cease quoting laws to those of us with swords." -Pompey Magnus
My argument is not that no laws are ever enforced. My argument is that law enforcers will do whatever they like and then justify it by whimsically reinterpreting the laws as they see fit. If the law matches what they want to do then that's fine, they can play along. If the law doesn't match what they want to do, it gets reinterpreted. Therefore, just counting up a bunch of instances in which the law was seemingly enforced means nothing, because there will be plenty of situations in which the text of the law lines up with what those enforcing the laws feel like doing that day. That doesn't change the fact that those same enforcers could just as easily have chosen not to enforce the law, if they felt like it.
The text of the law is a red herring. The person deciding how to enforce the law is the only one with real power.
It's an observation, not a theory. You can't falsify an observation.
However, I suppose if every single person who was involved in Epstein's pedophile ring was arrested, convicted, and imprisoned (this would include many prominent political figures) I would stop observing that law enforcement is arbitrary and that the pure text of the law has no ability to prevent the rich and powerful from doing whatever they want whenever they want.
Prosecutorial discretion means that prosecutors can freely choose whether or not to enforce the law. Police and FBI have similar latitude in what they choose to investigate. This discretion is used frequently and whimsically, and often has the effect of de-facto legalizing certain crimes for certain people (white people smoking pot, rich people fucking kids, shoplifting in San Francisco, etc). This isn't a theory to be falsified, this is a well-documented fact.
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It's not, when we can point to cases where the black-letter wording of the law absolutely did not matter. In some observable cases, passing laws was not sufficient, and in other observable cases, it was not necessary either.
Passing laws is expensive, and it is not obvious that doing so is worth the expense, given that they observably can be ignored. This calculation does not require perfect certainty that they will be ignored, only a suspicion that the likelyhood of them being ignored is high enough that they shouldn't be the current priority. Getting as much done as possible through the methods that do not require negotiation with allies of questionable loyalty, much less outright enemies, can improve one's position when those negotiations are subsequently conducted.
Our coalition is not hanging by a thread, it is in active civil war and has been since Trump arrived. My side currently appears to be winning that war, but we haven't won by any stretch of the imagination. The last generation of republican leadership actively campaigned for Harris in the last election.
And again, the advantage to passing laws is extremely marginal, and we know this from literally decades of observation from both sides of the culture war both here and in neighboring countries.
Further, and this is my own personal opinion, there is also the BATNA, which in this case is the forth portion of the back-and-forth wrenching we're doing on the fence-post of our current political system. By pushing the imperial presidency, we force a fight over the imperial presidency. To the extent that the positions again reverse upon the other side taking control, the legitimacy of those positions lessens dramatically. It is better for us to burn that legitimacy now attempting to secure our goals rather than leaving it for the other side to burn in pursuit of theirs.
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Of course Democrats could and perhaps will try to torture the law's interpretation to crack open a ton of immigration again, but there are limits to how far that can get. Trump and MAGA did that in the other direction in his first term and are doing it again now, and you can see how it pans out: many of the EO's get mangled by the courts, and he achieves results no better than Obama's second term, and which can be revoked by the stroke of a pen when the next guy comes in. So yeah, Democrats could do that but their hand will be far more limited than it was under Biden if conservative legislation is passed. Also, the SCOTUS is probably going to be conservative for at least the next generation since it's that way now, and Dems have no plans for how to retake control of the Senate any time soon.
I'm asking MAGA the question "Now that you have power, what's your plan to deal with immigration long-term, especially once Democrats retake the Presidency sometime in the future", and the response I'm hearing is functionally:
With MAGA being the Trump-cult that it is, my priors are that there's a huge distributed search to find a deflection for any accusation that Trump is somehow not the best of all possible worlds for conservatives on every issue. Since Trump isn't prioritizing enduring immigration reform, they work backwards to find excuses, and land on the goofy result that "passing laws is meaningless" with a decent dose of populist pablum "the system is rigged!" and, of course, a recitation of how much they loathe their outgroup, how evil and conniving they are, etc.
MAGA has a golden opportunity to entrench their immigration win, and they're just not doing that since it would require them to hold Trump accountable for failing to optimize for enduring wins rather than temporary fixes that look good on cable news.
There is no solution to that. If you wish to exercise power, you must retain power. Your dead writings have power only in as much your opponents are willing to respect them when they are in power, and the Democrats have made it clear that in general, they are not willing to respect such writings.
This is true in a basic sense that "Democrats could just repeal anything we pass", but it's not true in this context where we're talking about making things more difficult to do by unilateral executive authority. The Dems have shown they respect the courts in at least some cases, e.g. Biden trying to ban new oil and gas leasing on federal lands, the courts striking it down, and then Biden effectively going "aw shucks guess we can't do that then".
Biden not only did not go "aw shucks", he issued another ban as a lame duck, and the Democrats assert that only Congress can reverse that.
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...And the Republicans likewise "respect the courts" in "some areas", and "pursue legislation" in "some areas". The question is whether Republicans should pursue legislation in an area where the Democrats don't respect the courts, and further where it's questionable whether the courts respect the law. And further, how hard should they pursue legislation, given that there are many competing priorities.
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This brings up a salient point of interest.
Respecting the courts in some situations can be seen not as principled adherence to the rules of the system, but simply strategic focus on what is really important. Massing one’s best weapons at the decision point, essentially.
So, you wind up in a situation where a side can point to their principled adherence to legal norms in one theatre, while maintaining their technological and human resources superiority in another theatre. In this case, the technology is legalese and the human resources are ideologically bound members of the legal profession.
This is all, to paraphrase a prophet of our times, defection with extra steps. In the context of Democrats and Republicans, it would be unsurprising to see Republicans choosing to not let the battle hinge on Democrat’s preferred decision point. that can be a good strategy or a bad strategy, but it shouldn’t be a surprising one.
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Elegantly put, much better than I managed. Thank you.
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“Shall” means nothing.
“Shall not be infringed.”
Lots of infringement going around.
Your whole “may” vs “shall” argument is demonstrably built on sand.
First, 2A rights and duties of the Executive branch are using "shall" in very different contexts, at least from the Judiciary's perspective.
Also, 2A rights are still largely intact? Some states can screw with you a bit or place some minor restrictions on firearms, but none have been able to ban them outright.
A definition of the Second Amendment that only limits complete bans on all firearms (and presumably only when completely banning them for all or almost all people; unless The_Nybblr's problems are enough to have you eat crow), is itself accepting a progressive frame that boils the Second Amendment down to nearly nothing.
Literally today, SCOTUS denied cert on a case prohibiting gun shows on all state land, while allowing virtually every other lawful commercial transaction. Many circuits have routinely declared that wide classes of guns, or many components of every gun, are not 'arms' protected by the Second Amendment. Dexter Taylor is still in prison, after having faced a judge who literally said "Do not bring the Second Amendment into this courtroom. It doesn’t exist here. So you can’t argue Second Amendment. This is New York". I can't tell you what the 2024 or 2023 numbers are for NYC carry permits -- the central matter in Bruen -- because the NYPD simply will "not provide the number of applications pending or licenses issued" without a lawsuit. But the last lawsuit found they were issuing fewer licenses than before Bruen. States were allowed to hold laws requiring new firearms possess technology that did not exist and might not even be possible; to ban guns that people had owned for years or decades with no compensation.
I've made this argument for literally years, and in many ways it is getting worse, not better, with SCOTUS willing to punt even on outright defiance of its decisions. If you're going to bring, as you're opening gambit, that your side has not completely destroyed the thing, and this should be considered "largely intact", you're exactly the sort of trust issue that makes it impossible to believe you're arguing in good faith.
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Where can you buy yourself a destroyer and assorted artillery pieces to protect your shipping? The protection of one's natural right to do so is the plain reading of the law as understood and practiced by the people who wrote it.
I don't really think you can argue that 2A is intact in a world where the NFA exists, the effect of which is only slightly lessened by inflation so massive that impossible fees have become "just expensive". There's plenty of weapons of war that the Militia is not allowed to bear, which seems to defeat its purpose.
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So let me get this straight.
Your argument is that to remove leeway on immigration enforcement, you have to write “shall.”
Unless it’s the supreme law of the land, in which case the priestly class gets to decide “shall” means something different than what it means when written in subordinate legal codes.
And also you further argue that “shall not be infringed,” in that case, means you can actually have a little infringement, just around the edges, just a little bit of a screwing despite the existence of the “shall.”
I would summarize this as “‘shall’ is ironclad, except when it’s not.”
Does that sound correct to you?
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...And your argument would be that swapping "may" for "shall" would do for immigration control what "shall" in the Constitution has done for the right to keep and bear arms?
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