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PaperclipPerfector  4mo ago (text post)   30538 thread views

Culture War Roundup for the week of April 28, 2025

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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?

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.

Sure, the central question in Nielsen was about the timing, but the background opinion surrounding that debate was that "shall" = "requirement". This is referenced several times.

The Board of Immigration Appeals has held that subsection (c)(2), which requires the detention of aliens “described in” subsection (c)(1)

Respondents in the two cases before us are aliens who were detained under §1226(c)(2)’s mandatory-detention requirement

Paragraph (1) provides that the Secretary “shall take” into custody any “alien” having certain characteristics and that the Secretary must do this “when the alien is released” from criminal custody. The critical parts of the provision consist of a verb (“shall take”),

It's the same thing for Guzman Chavez. Sure, "shall" isn't the primary question at stake, but that doesn't mean the courts are treating it as something other than an obligation:

But this argument overlooks the rest of §1231’s directive, which states that DHS “shall” remove the alien within 90 days “[e]xcept as otherwise provided in this section.” §1231(a)(1)(A). And, as noted above, “this section” provides for post-removal detention and supervised release in the event an alien cannot be removed within the 90-day removal period, §§1231(a)(3), (6). Interpreting §1231 to apply even if withholding-only proceedings remain pending longer than 90 days thus does not “mak[e] it structurally impossible” for DHS “to satisfy its statutory obligation,”

And lastly:

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?

Cut it out with this nonsense. I think this is a productive debate and am enjoying it from that sense, but statements like "Do you think it's a coincidence that you keep conveniently making this class of mistake?" are just obnoxious.

Sure, "shall" isn't the primary question at stake, but that doesn't mean the courts are treating it as something other than an obligation:

Saying something is an obligation doesn't mean anyone has the power or ability to actually enforce that obligation. Which is kinda the bit that's actually important here. The language of these sections overlaps heavily with the language in US v. Texas; some of them have had several challenges specific to them, all denied, whether for similar reasons or for other coincidentally developed ones.

The courts, plainly and clearly, are unwilling to do that; you have not presented a single case where the lack of immigration enforcement has received a TRO, PI, or even a friendly handshake from the last court to review it, despite literally decades of intentional and widespread non-enforcement preceding the statutes written with exactly the fix that you pretend to promote in this very thread. Even if you had actually tried, you'd instead find cases like Arizona v. Biden where this statutory language confused a trial-level judge only until the appeal hit

These are not some novel development that only came about after forty years of activists testing the edges of a field, but a problem that has dated back to the Clinton administration and before. This is not one failure of one statutory term for one section of one law in one fraction of a jurisdiction, but an entire field of federal law that has been routinely and reliably left unapplied by entire administrations, across the country.

So if this argument is that "shall" can mean something, congratulations, here's your prize. If it's that "shall" actually means anything we care about, in this conversation, pull the other one; it's got bells on.

Cut it out with this nonsense. I think this is a productive debate and am enjoying it from that sense, but statements like "Do you think it's a coincidence that you keep conveniently making this class of mistake?" are just obnoxious.

Do you want me to give a list of your behaviors in this thread and the last thread that are "just obnoxious"?

Respect is a two-way street. There may well be situations were I'd be willing to play by Crocker's Rules aimed at me while doubling over to avoid monocle-popping from someone that's made themselves more easily offended, but I wasn't willing to do it for Trace after he called me monstrous, and I liked him.

I'm certainly not going to bend over backwards in the interests of politeness to someone who's spent the last year trying to find new ways to announce anyone who doesn't agree with his political pronouncements is in a "cult" developing any theory solely post-hoc, while showily reframing any argument against you into the most crass and weak form.

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