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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:
Oh, well, that's just Alito's summary, surely he must be exaggerating th-
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.
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:
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 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.
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.
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 --
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.
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.
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?
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.
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:
And lastly:
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.
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.
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.
It sounds like we agree that "shall" implies a requirement from the POV of the courts then, and it's really a question of whether or not it's enforceable. Note that the specific types of legal challenges we're talking about are mostly a Biden-era thing. Bush and Clinton were before my time so there may have been something there that I'm unaware of, but during Obama's tenure there wasn't really any serious challenges in the vein of "hey can you enforce like any immigration restrictions at all?" The major Republican legal challenge that I remember was against DAPA, which functionally would have led to Obama not enforcing immigration laws on a certain category of people, but Obama lost and DAPA died. During that time we were still in the era where Presidents followed the orders of courts without additional enforcement needed from plaintiffs alleging harms, so when the courts ruled against DAPA that was functionally the end of the conversation.
With that in mind, the courts ruling against Republican plaintiffs during Biden's tenure look less like "courts will always just find ways to screw Republicans on immigration", and more like the laws just weren’t prepared to handle these types of situations since they weren’t the anticipated issue when the laws were written. This is just an argument for writing better/updated laws. The AZ v Biden case you cite has the court saying “shall” doesn’t always necessitate action if certain discretion is required or implicitly left to the Executive, but again, this is just a matter of writing well-worded laws that don’t have that issue. When Congress couples “shall” with a detailed statutory scheme that leaves no gap for agency choice, the courts have consistently treated those duties as legally enforceable, and even gone so far as to vacate rules and enjoin the Executive when it violated them.
Your insistence on me producing cases that prove all the points I’m saying in one package is putting the cart before the horse. I can prove the individual points, like:
• The courts are willing to rule in favor of Republicans on immigration generally (e.g. DAPA)
• Well-written “shall” rules are interpreted as requirements by the courts (Nielsen v Preap)
• The legislature can explicitly give litigants the standing to enforce “shall” rules
And all these points taken together would logically imply that well-written immigration legislation would materially help Republicans enforce the law even if there was a Democratic President. But if you want me to give you a court case that does all of those together at the same time, then I really can’t since those laws haven’t been written yet, and I do not possess a time machine.
If you think I've behaved in an unreasonable manner, then yes I'd like to hear it so I can improve. Note that I draw a pretty strict line between talking about public figures + political movements generally, and talking about people participating in the conversation right now. Criticisms of the former are granted significantly more leeway both to understand priors and as an acknowledgement of the innately heated nature of political discussions, but there's a much higher level of decorum expected (from me) and required (to generally have productive debates) for the latter. E.g. calling Trump a buffoon is fine, but if I called you a buffoon that would not be fine. Calling MAGA broadly a Trump cult of personality movement is fine, but if I called you a Trump cultist, that would not be fine. I think I've done a pretty good job abiding by that distinction in these conversations. Again, if you think I haven't feel free to point it out. I think you're not observing the proper decorum with statements like "Do you think it's a coincidence that you keep conveniently making this class of mistake?" and I don't think I'm forcing you to "bend over backwards in the interests of politeness" here. I've said nothing like that to you, and I ask you extend the same courtesy to me.
The conversation you linked where I posted that was a particular case where they functionally said "I think you're meaning to say , but you actually sound like , and with that in mind can you make points to clarify", where I replied with "well, I think you guys sound like , and with that in mind can you make points to clarify". I wouldn't have started down that line of my own volition, but I found what they said had some usefulness so I gave them my own perspective.
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