This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
We haven't discussed deportations, recently, and appellate litigator (and formula Scalia clerk, for those who care about that sort of thing) Adam Unikowsky posted a good explanation of AARP v Trump/WMM v Trump, this morning. The situation seems pretty Kafka-esque:
Setting aside ICE acting in bad faith, invocations of rights using colloquial language can be deemed lawfully ineffectual by courts, even if the intent is obvious to any reasonable person:
The Louisiana Supreme Court declined to hear the appeal. People sometimes complain about lawyers using the right "magic words" being too powerful, but the rest of us being required to use magic words is a much bigger problem, in my opinion.
Back to this case, the ACLU's brief didn't include the specific circumstances of their communications with their two clients or how many people would have been deported on the same flight, but the two clients were able to describe notices of an impending deportation.
As for the ruling, itself, Unikowsky writes:
There's a lot more (including why Unikowsky disagrees with Alito's dissent and why the lack of transparency by ICE and its litigators is wrong), and it's worth reading in full, but that's the jist of it. SCOTUS having granted an injunction, the question of whether the secret 12-36 hour habeas petition window ICE stipulated satisfies due process requirements goes back down to the Fifth Circuit Court of Appeals.
But were deportations always so Kafka-esque, or is this new? Did previous administrations act in bad faith, like this? And where are the voices that are both pro-deportation and pro-legal protections against fed fuckery? As HL Menken said:
Necessary starting caveat: Unikowsky is an absolute putz when it comes to anything Trump-related, and his analysis should be recognized as on the "ought" side of any is-ought divide, and, more damningly, an "ought" that will not apply to any case where he doesn't like the victim.
Traditionally, deportation was a civil matter that mooted most challenge as soon as the deportation was completed. So, yes. I think there was a statute to expand jurisdiction to cover the parade-of-horribles example of a US citizen being deported so they could start the suit from a third country, but I'm having trouble finding the text.
The previous administration turned a statute requiring it to deport aliens convicted of a specific list of crimes into a purely advisory suggestion, and BenGarrison here keeps insisting we just need to change the statute to require it more, bro. Or is that not what you're talking about? If you want examples of past deportation schemas that didn't have criminal conviction levels of due process, the Eisenhower-era process is usually the go-to example.
I think they gave up somewhere in the mid-1960s, where Woodby v. INS turned the statute's "reasonable, substantial, and probative evidence" into "clear, unequivocal, and convincing evidence". Whatever patience there might once have been for the process arguments fell apart when the same judges and advocates have skipped over them in contexts involving citizens facing criminal charges.
What does this mean?
Did they play games in court, in order to do so (e.g., dragging their feet, after being court-ordered to deport a criminal, or misleading the courts about the status of aliens), or were they just willfully lax about enforcing the law?
Could you please elaborate on this?
Unikowsky is not describing the state of the law, but by what he thinks would be good policy were it the law. As a result, the only meaningful read you should take from his writings are specifically what he thinks would be good policy for achieving his goals.
Yes, they did. The Biden administration policy in US v. Texas was specifically about 'prioritization' of aliens with final orders of removal, including those with final orders of removal for criminal behavior, to such a point as to not ever do it for wide portions. Instead, the Biden administration issued a memo telling all DHS staff that they would not deport such illegal immigrants, and then told the courts that they Tots Weren't Making Decisions On This Memo, and then made decisions completely in line with the memo's directives.
Now, the final orders of removal themselves were Article I administrative law judges. If you want specifically Article III court orders in the context of immigration, you'll have to look a little further back. The Obama administration, when DAPA/DACA was being challenged, swore before court both in writing and orally in the court proper that they would not issue any new determinations under the new policies, in order to avoid having the judge issue a preliminary injunction. And then the issued literally over a hundred thousand.
Civil proceedings against citizens have extremely minimal due process protections, and almost always operate on a "preponderance of evidence" standard rather than "clear, unequivocal, and convincing evidence" one. Your own example (lawyer dog) was a criminal context where the courts have found a right to an attorney less urgent than advocates or judges are calling for illegal immigrants here. There are extremely few situations where an American citizen facing criminal charges can defend themselves by complaining that a form does not provide sufficient information about what must be done to achieve some legal defense; indeed, SCOTUS has recently allowed felony convictions over harmless paperwork errors based on interpretations of the law that were not clearly evident to experts.
There are ways to square this circle, but they ultimately give a solution where the rights of illegal immigrants are paramount, and the rights of citizens may sometimes, eventually, maybe, possibly be protected if the current makeup of the relevant appeals courts likes you in particular.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
There's definitely been a lot of this since Trump came onto the scene. Trump's first term had a lot of this sort of nonsense, trying to do deportations in the middle of the night before the EO's got shredded by the courts. Then Biden's reaction was Kafka-esque in the other direction, letting immigrants say some magic words "credible fear" to basically ensure open borders via loophole. Instead of doing legislation to fix any of these things, both sides just try to keep pulling fast ones, and then seethe when courts intervene or the other side undoes their EO's with EO's of their own. Just complete nonsense from start to finish. Of course the MAGA-leaning sectarian cheerleaders like Catturd are now screeching that the judicial system should be broadly destroyed since they won't give Trump rubber stamps on everything he wants.
More options
Context Copy link
Who is Adam Unikowsky and why should anyone trust / care about their explanation / characterizations of a contemporary culture war topic filled with bad and bad-faith explanations / characterizations?
Unikowsky is an appellate litigator who writes about appellate litigation. Here's the bio on his firm's website and his Federalist Society contributor page, if you want to know more about him.
Unikowsky scrupulously doesn't give his opinion on deportation, as a matter of policy, but - as I note in the top level comment - explains why the games the ICE and their litigators are playing in court are bad. I did not quote all of his criticisms of the government, because the comment was already very long. My position is that all of the fuckery is bad.
Thank you for providing a characterization of your source.
More options
Context Copy link
More options
Context Copy link
That is a fully general counterargument. Quite frankly, if you do not like to read opinions on culture war topics by people who may in fact not be 100% neutral observers, The Motte might not be for you.
If you bother to click on the substack link, you will find that Unikowsky did for example link the court document detailing the procedure.
Sure, not every claim is backed up by evidence of that level. But if your suspicion is that detainees were generally verbally advised to get their lawyer to file a habeas petition and inform ICE of their intend to file, it is up to you to write or link an effort-post detailing how in the time period in question, tons of immigrants served with AEA 21-B filed a habeas petition, with links to their cases and everything.
From my own priors, I think that the story as presented -- the Trump administration engaging in malicious compliance to get a few more immigrants out of the country before the courts stop them -- would not be very surprising.
Who says I do not like to read opinions on culture war topics by non-neutral observers?
Fortunately, the counter-argument is not fully generalizable. It can be countered by providing an introduction of a source, characterizing the source regardless of its level of bias.
And if the OP (sockpuppet) had bothered to introduce their argument, no one would be expected to conduct their own internet archeology to find it. I have a similarly dim view of people who link to long youtube videos for supporting context in lieu of their own arguments.
As a matter of practice- both in terms of advancing an argument and as as a framing device when introducing someone else for an argument- it is incumbent on the opener to provide some level of contextual justification for the audience as to why. This is particularly relevant if the opener is going to outsource their argument to someone else.
If OP's argument is going to be based on Unikowsky's views, then it will behoove the OP to justify why Unikowsky's views are significant.
My suspicion is that the the OP is making a broader culture war argument by selecting a take they agree with, but do not want to make themself, and so are attempting to smuggle in an insinuation of authoritative neutrality by presenting someone without characterization to make the argument by proxy, even if that person is more biased then the OP might care to admit and would undermine their opening position.
I base this suspicion in part by how the OP introduces Unikowsky to make an argument about deportation process, but then concludes with an appeal to HL Menken on the nature of resisting oppression. This is not Unikowski's position from the position of what is cited, but it is the conclusion that the OP cares to focus on using Unikowski as the buildup.
This suggests the OP is conducting a bait-and-switch argument, using Unikowksy's position as the opening bait (neutral observer on deportation process) for the concluding switch (deportation is a part of Trumpian oppression that must be resisted).
The way to test a bait-and-switch argument is to challenge the presenter to justify the bait.
Neither would I, but this in and of itself is not a reason to trust / care about the views of Unikowsky, absent further argument about why Unikowsky's framings should be believed or cared about.
It looks like we both agree that if Unikowsky had posted his article directly on the motte under a new user account, that would have been fine.
What we disagree on is how much introduction should be required when a motte user quotes a source. My position is that as I am already reading takes from random persons on the internet, if a source is not contextualized (or I do not trust the poster's contextualization of the source), I will simply treat it with the same level of skepticism I would have for a new motte poster.
Total agreement here. They are the worst.
(Second worst are links directly to twitter threads, which depending on how Musk is feeling might only show me the first tweet and tell me to create an account.)
I browsed a bit through the substack, and it seems that at least 50% of the articles are Trump/CW related (and generally Democrat-leaning), 10% are about LLMs in judicial processes, with some other legal topics being sprinkled in here and there. The main difference is that while @sockpuppet2 with his Mecken quote points out that the deportees deserve due process even if they are as guilty as sin, the substack focuses more on the fact that many of them might not actually be Tren de Aragua, but simply people with unrelated tattoos.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
Counts for what to who?
Is 'Scalia' in this context supposed to count as a proxy for 'shares Scalia's worldview and judicial philosophy?' Or does it count more as a talismanic shield, akin to 'he worked for a conservative, therefore he must not be politically biased?' I imagine 'Scalia clerk' counts for either, but to different people.
What else is 'Scalia clerk' supposed to mean? Was Scalia known for only employing clerks who agreed with his philosophy, and thus they are proxies for his professional reputation? Are Scalia law clerks as a class any less prone to culture war shenanigans than the rest of the legal profession? Was Scalia known for characterizing deportation as being cast into Dante's inferno, or viewing deportation as oppression?
If I look up Adam Unikowsky's professional bio, should I expect to see Scalia-esque disagreement with the lawfare practices of the last administration to shape the election, or should I expect to see concurrence as many other respectable professionals felt it was right and proper?
Scalia was also well known for hiring people he thought were wrong on substantial political issues. 'Smart enough to aid him' does not mean or imply 'political judgements were considered sound and trusted by even Scalia's standard.'
This would be a smuggled insinuation, both invalid and dishonest if claimed explicitly. (Which it has not been, hence pressing for further clarification).
Not many. Most people do not hinge their opening posts on a non-characterized source, or happily clarify when asked.
It does happen from time to time, though. Even got an AAQC for a frisking the Seymour Hersh claims that the US blew up the Nordstream pipeline, which was largely based on critiquing the (claimed) source of Hersh. Casting shade on sources is on brand, though in this case I pressed the OP to justify the source he was using to argue by proxy for an argument conclusion the source didn't justify.
Heavens no. Feel free to look for yourself, though.
Scalia was, in fact, semi-famous in the legal world for always hiring at least one "counter clerk" (aka, someone who disagreed with Scalia on significant issues) in part so that he'd have someone smart in the room to play devil's advocate.
Of course, he didn't always pick winners; one such "counter clerk" was Ian Samuel, who later as a professor admitted to perving on his students, was broadly disgraced, but appears to have clawed his way back to respectability as an in-house regulatory counsel for big corps.
More options
Context Copy link
Scalia finding his opinion valuable in a specific, highly unusual circumstance does not make his opinion valuable for conservatives generally. Scalia's known method was to use contrary arguments to sharpen his own, not to adopt as his own.
More options
Context Copy link
More options
Context Copy link
It's supposed to mean that he clerked for a Supreme Court justice, which is a position that only goes to those with the highest academic qualifications, and means that he has actual experience working in constitutional law, which is something that few lawyers possess. He also specializes in appellate Supreme Court work as part of his current practice. I'm not sure what kind of resume you're looking for when it comes to one's qualifications to comment on the judicial system.
That is a credentialism argument for a trusting a member of a profession that, in the US at least, has been long and broadly considered untrustworthy on matters of ethics, prioritizing the public good, or holding their own accountable.
In a year where extremely partisan use of the judiciary, with substantial support by members of the legal profession in good standing, is a topic on the supreme court docket, and where good-standing in the legal profession is tied to the not-necessarily-apolitical interests.
Which is why the question was not for a resume, but for a reason to trust, and why their characterization of a live culture war topic should be deferred to. "He is a capable lawyer in good standing" is an anti-endorsement.
This is just anti-credentialism at its most stupid. If anything the legal industry is one of the best places to be credentialist, because so many cases turn on very specific case law and precedent that the non-credentialed have almost no hope of fully understanding. Let alone the whole demand for isolated rigor lens. Respectfully, your intuition is twisted.
Funny thing about law, though. For every decision, there are apparently intelligent and credentialled people willing to argue both for and against it.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
To be explicit, Scalia famously made a point of hiring some clerks that didn’t share his view to try to better understand different perspectives.
Indeed. Which is why their former employment does not suffice for why someone should care about their explanation / interpretation on a culture war issue.
'They worked for a smart person' is not a credit that bolsters one's own credibility, particularly when said smart man was known for routinely hiring people he thought were substantially wrong on major issues.
The fact that the country's foremost conservative legal figure, considered by most to be an intellectual titan of his age, specifically chose someone to be a principled devil's advocate pushing back against his own assumptions would definitely be a credit bolstering their credibility. It speaks to a level of intellect and open-mindedness far beyond that of most commentators.
Perhaps!
...but this is not the argument the OP made for their source.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
I don't think anyone in any case is generally informed of the right to habeas. There's no miranda-style warning that lets inmates of all crimes and demeanors know that the right to habeas exists. In fact there isn't exactly a notice that goes out to everyone about all your different rights whenever you might need them. There's no notice letting you know you can just refuse a search from the police, many people might have no clue you can just say no. There's no sign pointing you to the nearest gun store posted at the entrance to every bad neighborhood.
Maybe there should be something like this, but there isn't. So it's up to you to know your rights and use them when needed, because the government can't be relied on to educate you.
The "Miranda Warning" includes the right to counsel: https://www.law.cornell.edu/wex/miranda_warning Immigration proceedings are civil, not criminal, but perhaps Miranda Warnings should also be required, inasmuch as Fifth Amendment rights also apply.
The miranda warning isn't even required, it is just required if they want to interrogate you in order to preserve your fourth amendment right.
If the police really wanted to, they could just tell you nothing, lock you in a room, and just never mention that you were free to leave the whole time. Or they could file charges without telling you and you'd only hear about the whole lawyer thing once your court date approaches
More options
Context Copy link
More options
Context Copy link
'Enough to what to what purpose?' is the natural question.
'To deliver due process' is a predictable response, but this itself isn't defining what 'due process' actually entails in a deportation case. For something to be 'insufficient,' there must be a standard of what 'sufficient' is. However, what is sufficient due process in one context is not sufficient in another.
This has been why a lot of the political opposition to migrant deportations has been on trying to equivocate deportation due process to other due process contexts. Consider the media focus several weeks ago of an illegal migrant mother who was deported and took her infant US citizen child with her. This was raised and framed as 'administration deports American citizen without due process!', as if the due process was a US child custody court case between US citizens, rather than the due process of letting a foreign citizen keep custody of their child when there was no immediate US family. Naturally, that line of argument fell quiet soon after when the 'just give the father custody!' process arguments ran into the issues of the father's legal relationship to the mother (and for being in the US).
The political struggle / contest is who gets to define due process requirements when.
If I directly asked you if you thought due process required being defended in court by a crusading ACLU lawyer, I doubt you would say yes in those terms. Certainly the law does not require that. If it did, there would be no 'you can ask for it with your phone call' option, because it wouldn't be an option, it would be the requirement. However, arguments of 'you are violating due process if you do not give them that' are in practice demanding a procedural requirement.
The issues with this are multiple. First and most importantly, it tends to be a bad idea to let people who are not in the position of creating legal requirements for the state to create legal requirements for the state. Similarly, institutional and professional legitimacy can easily be burned in advancing institutional power increases as a means to win political arguments- see the (probable) result of national injunctions, or the long-running Democratic attack on Republican partisanship in the Supreme Court (pick your preference).
But a third point is that process demands are not inherently legitimate when arguments are used as soldiers, and can gradually undercut the nominally claimed principle's value to/from/by society.
This has already happened globally in terms of how global views of refugee and asylum laws has evolved over the last quarter century. Asylum and refuge was a principle won from the post-WW2 context, it was leveraged to advance economic migration, and public support has declined as people bite the bullet and diminished asylum's social / political sanctity to prevent it's use as an argument-as-soldier for a cause. Similarly, free trade was a political value, until the costs were increasingly untenable, and now market efficiency arguments are hobbled as the people who justified their preferences on the basis of free trade have discredited themselves and the arguments they used as soldiers.
There is no reason it cannot or will not happen with other dynamics.
The point of this isn't that you shouldn't feel that 12 hours and a phone call is enough due process for illegal migrants. The point is that you should be clear what is enough due process for illegal migrants, and where it ends vis-a-vis due process for legal migrants, and where that due process compares to citizens.
There are (well established) distinctions. Careless equivocation will be indistinguishable from those who would use that argument as soldiers, and it stands to lose if / when they lose the social argument as a whole, and take their supporting arguments with them for all others who might have wanted that (no longer shared) principle.
Because there has not been an argument for why twelve hours it is not a reasonable amount of time for due process in the context of deportation, besides that it interferes with a habeas relief process, which the law does not require occur for due process in the context of deportation.
Do you think it is reasonable to demand that people should be detained longer against the inclination of a government that wants to release a person sooner, even though this will increase the amount of time people are detained overall instead of free?
Remember- [habeaus relief] and [due process] are not synonyms. [Habeaus relief] is a specific relief against wrongful detention. As a matter of heabaus harm minimization, less time in wrongful detention is better than more time. This principle even applies to rightly-detained individuals- hence the right to a speedy trial. A 'more reasonable' time period for involuntary detention is shorter, not longer.
An habeas-based argument to extend a 12 hour limit is saying a 12 hour potentially wrongful detention is too short, and that everyone wrongly (or rightly) detained should be detained longer.
If this seems a weird, this is because [habeas relief] is in this case being instrumentally treated as [deportation appeal]. The habeas concern itself is resolved upon deportation. Extending the habeas harm (the effect justifying habeas relief) is the tool to try and prevent deportation.
Questioning who the OP is appealing to and why they should be is taken as an arguer-by-proxy is the antithesis of an argument over their identity. It is an invitation for their identity to be established in ways to improve their credibility beyond poor stereotypes.
Variously people have done so poorly, appealing to credentialism of a distrusted profession or the smuggled assumption of a former employer, but that is the issue with poor stereotypes instead of individualized endorsement.
'Blah, blah' is certainly an amusing dismissal warning of increasing habeas harms to people claiming a need for habeaus relief for non-habeas motives.
Interesting. Did you read the same post I did? It appeared to me to be a series of statements of fact with minimal “trust the experts” color. Are you alleging that there are outright lies in the OP? If not, or so, be more clear, because it sure does look like you’re making a scummy and intellectually weak effort to deflect the points at hand. The rest of the reply chain seems to support the latter interpretation.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
So every alien in the US has a legal right for a stay of deportation for at least what, two days? Probably more like a few weeks? As long as they say the magic words? From first principles I’d say we should have a judge rubber stamping the deportation warrants with a chance for a public defender to object when appropriate. But I don’t see how a functional deportation process functions under a standard deportation process. How different would a ‘good’ process of deporting millions look?
Again this whole thing would be easier, ironically even for Trump, had Trump not personally torpedoed a major compromise immigration bill before coming in to office. Which among other things would have increased the number of available judges.
We have been over this - the bill wasn't really a compromise; it was a back-door way of legalizing the hitherto-flagrantly illegal stunts the Biden Administration, like the Obama administration before it (but more so) had been using to throw the borders open.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link