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Texas is standing up because they kind of are actually defending themselves against an invasion right now. Several hospitals are basically only serving migrants and aren't being compensated. They are threatening to shut down and leave the state. Biden has no political leg to stand on, and only a thin legal leg that there are 4 strong votes on SCOTUS to kick out from under him, and 2 questionable votes.
Er, Biden has a very strong legal leg to stand on. It's not an invasion, it's illegal immigration. The current situation is different in scale to what has happened continuously for many decades but not conceptually. I understand the desire to rhetorically brand the situation an "invasion", but it's not actually what it is. October 7th is what an invasion looks like.
The federal government does in fact have the legal authority to administer immigration law. That the current one is doing so very badly does not change this.
It's more of an invasion than Jan 6 was an insurrection. A govenment brininging in foreigners to prop up their domestic power is usually considered colonization, that might be a better term.
The situation is a little more complex than that. Imagine if Trump were President. The courts would never rule that the executive branch has unlimited power to interpret and adminster immigration law without review.
However the current administration of immigration law by the Biden admin isn't consistent with the laws congress has passed. However the courts and legal class generally support what Biden is doing.
They don't want to give him carte blanche power. They don't want to stop him, or are at least afraid of pushback from the legal establishment.
So what do they do?
So far their answer has been to use standing to block any lawsuits. Things are going to get interesting if Texas can force the Feds into court.
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Historically this is invasion. The Romans never would have let millions of migrants enter their territory and use their resources. They would have slaughtered them.
If I open a dictionary this fits many of the definitions you will find. I’m sure in about a week all those definitions will be modified to make sure invasion only means with guns.
We also frequently use the word “invasive species”. Those aren’t species using force to enter a new environments. Often their species that lack predators and therefore grow uncontrollably.
So often a debate does come down to the definition of a word.
I would note you I believe think Trump committed insurrection on Jan 6. In many ways this is very similar but I do believe the gap between: Trump gives speech causing riot is the meaning used by 14th amendment rioters as an insurrection is much larger than the gap between the definition of invasion constitutional writers used and what is occurring at our southern border.
This just comes down to how stretchy are the words invasions and insurrection.
...they did.
In any event, it's not really clear why we should consider the Romans a model for behavior.
"Invasion" rhetoric is classic Motte-and-Bailey equivocation. Nativists want to borrow the alarming connotations of the word to hype up support for radical measures, then, when their critics point out that there's a slight difference between people making dodgy asylum claims and an armed force sacking El Paso, fall back on "invasion has other meanings". If Latinos are "invading" like Japanese tourists, the claim becomes a lot less exciting.
When? If you are talking about the resettlement of the German tribes inside imperial borders, they only did that after smashing them in battle and disarming them. Sometimes they would skip the smashing in battle bit, but there would always at least be a negotiated settlement before the tribes were allowed to move into the empire uncontested. Towards the end of the empire they stopped disarming the Germans, but that was definitely not by choice, it was because the empire was falling apart.
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I think it’s a lot more than a motte-Bailey.
It’s also a legal term to deal with a real issue. So the definition matters because it is in the constitution. And winning the definition means having jurisdiction and the ability to fix a real problem. Sure having he Mexican Army bombing Houston isn’t the same as immigrants but in both situations the law provides real remedies to the lack of federal action. Texas has a need to defend themselves either way.
The end result of invasion of the Mexican army attacking or migrants is the same. Either situation threatens the sovereignty of Texas and the loss of territorial control.
Even if that's true (which is a big if, one I disagree strongly with), the end result isn't all that matters. Invasion requires intent as well as results.
Surely if interstate commerce includes non-interstate non-commerce, invasion includes immigration.
No, that's not how it works. Just because the 1942 Supreme Court was pants on head retarded doesn't make it ok for others to work off bad interpretations of the Constitution as well.
I say it does make it okay. Either words have meanings or they do not. If words consistently lose their meanings in certain circumstances (mainly when the government wants more power) then they mean nothing to begin with.
So long as that ruling is upheld, it is sufficient on its own to prove that the government's design has failed utterly. Best that words always have meanings, but better to accept reality than to sacrifice oneself fighting to uphold norms which are already broken past repair.
Until such rulings are repealed completely, all rulings are just who/whom as far as I'm concerned.
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You don’t think this invasion has intent?
There are plenty of NGO’s facilitating transport to the border.
Results? We are already set to be a majority minority country and all that entails as far as control of governance. Plus 6 million new inhabitants since Biden took over. That seems like a result.
You have yet to demonstrate that there's an intent to take over the country. The more likely explanation is that immigrants are coming here because they feel they can have a better life here, and the various NGOs are helping because they are compassionate towards the less fortunate. It doesn't take a conspiracy theory to explain this.
And, as I've already said, I don't agree with your idea of what the result here is going to be.
Every single person who ever did anything did it under the claims of wanting a better life. To go full Godwins principle that was literally Hitlers reasoning for war that the German people needed more land………for a better life for the German people.
The reasoning you are giving is the exact reasons why I assume they want to come to America.
Just because the migrants are doing something in their best interests doesn’t mean it doesn’t affect me as an American citizen.
Everyone who’s ever invaded anyone has done it for the reasons you expressed. I never said it was what is known as a conspiracy theory.
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The federal government is going there with forklifts and lifting up the wire to facilitate their entry. That's a bad policy choice, but it's also clearly a choice. Never mind the lack of force, these people aren't even violating a "please stay out" sign. They're being welcomed in.
It's irrelevant that the Romans wouldn't have allowed it. The Democrats are allowing it, and they are the government.
At least with Am14S3, there is a requirement that an individual "engaged in" insurrection, yet even there, we have briefs by eminent Constitutional scholars submitted to the Supreme Court saying that it is sufficient for Trump to have simply done nothing to stop it. A4S4 doesn't speak to any individual engaging in the invasion, helping it along, or being passive to it. What people in the US are currently doing WRT a possible "invasion" simply has no bearing to the current question of whether it is, in fact, an "invasion" according to the Constitution. The conclusion of that question would have implications as to what certain folks are supposed to do, but that someone is or is not doing what they are supposed to do is not dispositive on the question of what the word means. For example, if we saw the government performing unconstitutional searches as a policy choice, we wouldn't say that it must be the case that those searches don't actually fall under the Constitutional definition of a search. We'd just say that they're doing a thing that they're not supposed to be doing. It would be similarly silly to say that Jan6 couldn't meet the definition of insurrection if Trump made it a policy of the gov't to let them into the Capitol.
To be clear, I'm not taking a position on whether it is or is not an "invasion". That would require different analysis.
That's true, but let's be blunt: that's not an opinion those scholars arrived at based on an impartial reading of the Constitution. It's motivated reasoning which stems from the fact that they really don't like Trump and want to see him go down regardless of whether he deserves it. It's not an example to follow.
I do think that the historical evidence is strong that the original public meaning of "engaging in insurrection" was broad at the time that the 14th Amendment was adopted. E.g. Andrew Johnson's Attorney General issued an opinion on section 3 that said "...where a person has by speech or by writing, incited others to engage in rebellion, he must come under the disqualification". And Johnson was of course an opponent of the 14th Amendment.
[apologies for the renotification on this]
ymeskhout and I discussed a possible debate on this matter, and it didn't work out in a "we wouldn't really be adding anything new" way, but I understand you suggested the topic and recommended me, so I think you deserve a more serious response here. My expectations at this point is that we see a more procedurally-focused overturn of the Colorado Supreme Court, without much engagement in defining insurrection, but I think it is important to actually engage with.
Most immediately, it's worth spelling out the ellipses from that source: "Disloyal sentiments, opinions, or sympathies would not disqualify, but where a person has by speech or writing, incited others to engage in rebellion, he must come under the disqualification." This wasn't exactly about the 14th Amendment -- that wouldn't be ratified until just over a year later; Stanbery was discussing the First Reconstruction Act that referenced the 14th amendment but did so in a context where those state governments were "in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede" -- but it is meaningful as contemporaneous evaluation.
But it leaves a complex alignment between speech, opinion, or sympathy, from incitement, and very little exploration to distinguish one from the other.
Which we don't really have that much actual evaluation and especially action on, especially contemporaneously. Baude/Paulsen bring John Floyd as the prototype of a disqualifiable traitor, as does the amici brief from the Amar Brothers, and in many ways their list -- a major advocate of the South and Confederacy, weakening soon-to-be-Union forces, ordering arms to be delivered to soon-to-be-Confederate camps -- is underselling things, so the unfortunate fact that he died before the 14th Amendment was ratified (or even passed Congress) seems almost superfluous. But they are underselling things: Floyd joined and served in the Confederacy, and contra Baude/Paulsen was infamous for it. Philip Francis Thomas didn't join, but he gave money to his son to do so (also, another one that technically was before the 14th Amendment was ratified but used other powers). ((The Amar brothers throw in Benjamin Stark, which is a remarkable non-sequitor since he was not disqualified, was only alleged to have given disloyal speeches, and had the whole debate long before the 14th Amendment's ratification.))
And that's the contemporaneous examples Baude/Paulsen, or numerous other advocates of the Section 3 theory, find closest to simple advocacy. This list offers a handful of Confederate soldiers, a governor, and then tries to draw Kenneth Worthy merely holding local office. But Worthy held a local sheriff's office sworn to the Confederate cause. Especially in that era, the sheriff's office was a role with significant tactical and logistic ties to the confederate military.
The one clearly-speech example we have is Victor Berger, in the WWI-era. Which seems to fail Stanbery's test the other direction -- I've had a hell of a time trying to find exactly what Berger actually published, precisely, but most sources and the court records describe it as a generally anti-war (socialist) position, rather than incitement by even the broadest definition. And Berger was convicted before he was disqualified, albeit by a biased judge, disqualified by Congressional vote, and after SCOTUS overturned that conviction because of that judge's bias, the charge was dropped, and Berger was later seated. This seems far more an example of the nadir of First Amendment protections than good law. And outside of the whole Brandenberg/Hess swaperoo caselaw since, there's also just the bit where accepting it would allow disqualification of wide varieties of political actor, including the oft-cited bizarity of the Iran Deal 'counting'.
The contemporaneous example, Couy Griffin, involves clear and unambiguous evidence direct instruction to violent crime and (indeed, plea to) of trespassing.
The only other good source we have are the people who weren't disqualified. Baude/Paulsen bring up Clement Vallandigham, a pro-Confederate Northerner who was so obnoxious that Lincoln ejected him from the Union, gave advice to Confederate leadership (and was claimed to give advise encouraging Confederate invasion of Pennsylvania!), and was just in general involved at a distance with an absolute ton of Southern chicanery (planning a prisoner of war camp prison break!). He ran for election multiple times after the ratification of the Reconstruction amendments -- while he never won, neither was he ever disqualified from the ballot. If he were a one-off, perhaps that'd be a matter of missing him, or maybe just not wanting to validate his complaints, but I pick him because he's Baude/Paulsen's example: at least a few other prominent Confederate sympathizers and political advocates were similarly allowed to run unblocked.
Okay, so there's clearly a speech/non-speech divide -- perhaps some messiness about speech that gets close to or becomes action, or if someone had purely expressively associated with the Confederacy. Clearly the January 6th rioters were not just giving speeches!
But Section 3 isn't about if Trump talked to insurrectionists, or his speech motivating insurrectionists; Trump must himself had engaged in insurrection against the United States, or given aid or comfort to the enemies thereof. Even Stanbery's analysis divides advocacy from incitement, and the standard for incitement has only tightened in the intervening century. The only purely-speech disqualification was done by Congress, and involves facts that any advocate should run away from screaming. The other available cases point overwhelmingly to personal (usually violent) action, material support of the confederacy, or sworn membership in a conspiracy or confederacy. There are certainly ways that might have happened, such as if Trump had ordered capitol police to stand down or directed arms shipments to them (Floyd), or given Proud Boys his credit card and said to buy guns (Thomas), or had he won a kung-fu battle with the Secret Service and driven the Beast through barriers surrounding Congress. I actually have a lot of deep questions I'd like to have answered about the original Capitol Police response.
At least so far, no one has provided serious evidence of any of these things. I can't cordon them off entirely, since the only really implausible bit is Trump giving out his own credit card, but we at least don't have proof or even particularly serious allegations of any of them. Trump is alleged to have a) given a bad speech, b) asked or ordered the removal of metal detectors at the crowd near the Ellipse, c) not quickly or sufficiently enough told rioters to stand down, and d) wanted to go to the Capitol.
A, C, and D are not compelling, without more than present here. There is not some special exception to First Amendment protections for speech alleging election fraud, even knowingly falsely alleging election fraud, contra a large number of commentators; that a matter is so critical people care about it enough to become violent has historically been cause for greater First Amendment scrutiny, not less. That speech preceded a riot; that it preceded long enough that police were already on scene before it started does not always break the 'immanent' prong, but raises its eyebrows and waggles heavily -- even pre-Brandenburg, SCOTUS was widely skeptical of convictions based on a rowdy speech preceding a riot. That Trump wanted to march with the proto-rioters toward the Capitol is damning of his person, and everyone highlighting it is certain that he would have then ordered his team of morons to break down the Capitol's doors -- I'm certainly skeptical of his claim that he would have intentionally damped down the rioters..But he did not actually do so, and the evidence everyone brings of specific intent from that demand is a joke.
The Colorado courts provided little serious consideration of this matter, or even much of a pretense, trying to read tea leaves about how any past criminal behavior by any Trump supporter must demonstrate that Trump 'knew' his language would be read as not merely encouragement toward violence, but directions to do so. But Brandenburg requires, at its core, intent, and Colorado brought (and Colorado SCOTUS emphasized) experts that disclaimed any serious insight toward intent. And the First Amendment's broader protections against vague laws that impact speech way heavily, here.
I prepped other citations to talk through with Meskhout -- along with discussions on the Baude/Paulsen claims that the 14th amendment overrides the 1st, or that there is no 14th amendment interest in ballot access such that the 1st amendment applies -- and I expect that this would have ended up the bigger part of our discussion, but it's a space with an absolute ton of broader caselaw and little of it in the modern day caselaw makes for an easy disqualification. Can draw it in more detail if requested.
B sounds more meaningful at first glance, but it runs into the problem where the Ellipse is the front lawn to the White House, almost two miles away from the Capitol, not a point at the Capitol building itself or even the infrastructure guarding it. More honest authors (note; the overt acts rule proposed here is a new one in this context) try to take this as evidence that Trump knew that the rioters were armed, rather than just wanting, but even supposing that was true and Trump believed at the time it was true, it is not an act that would have or could have furthered rioter efforts, given that they would have had to turn around and exit the magnetometer-covered area to head to the Capitol.
None of these proven or seriously alleged behaviors are close to John Floyd, Cousy Griffin, Phillip Thomas. Hell, they’re closer to Stark than Vallandagham.
I think the Republican party and the country as a whole would be better off had Trump been impeached, convicted, and prohibited from further office in 2021, especially if it could have been accompanied by serious evidence of direct crime or support of the rioters. We don't have that; the second impeachment was more interested in politics as usual, and perhaps that more serious evidence does not exist.
This approach can't get us there from here, and in trying it, advocates have opened up a wide number of absolutely terrifying problems spaces -- Gorsuch's parade of horrible where a self-executing 14th Amendment requires military officers to consider if the President has disqualified himself is not even far on the scale of awful and community-destroying fault.
[following from Ashlael originally]
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Unless you are willing to grapple with the likely meaning of "rebellion" in this quote (given the specific historical context), you're still not engaging with the meat of what "insurrection" means - this quote simply says that speech or writing could qualify, but only where they were connecting to "inciting others to engage in rebellion." Given that the antecedent was the actual Civil War, you're skipping the hard part, which is analogizing actual, immediate, and realizable secession from the Union to the facts of January 6th. I'm not saying that's impossible, but just saying that speech or writing could qualify under certain circumstances doesn't really help, because the circumstances are the biggest part of the dispute.
Trump's Supreme Court brief does not dispute that Jan 6 was an insurrection, he merely argues that his conduct did not constitute "engaging in" that insurrection.
That's with good reason - an attempt to prevent the rightfully elected President from taking office through the use of force is an absolutely central example of insurrection, and it's sensible for Trump's lawyers to focus on more plausible arguments. Imagine if a mob of angry Virginians had stormed the Capitol in an attempt to prevent the certification of Lincoln's election - would anyone be claiming that the South's rebellion didn't begin until Fort Sumter?
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Note that, to the extent that this does qualify, it is still an active thing. The argument I referred to wasn't even this; it is purely about inaction, that Trump is culpable for not doing anything about it. A test concerning incitement does not seem to rest on mere inaction. Instead, it would look a lot more like Brandenberg, which most folks are trying to run away from as fast as possible.
Which argument were you referring to exactly? I've seen people argue that Trump's inaction is evidence that he wanted the insurrection to happen (which obviously goes to intent), but those same arguments say that it was Trumps words and actions that incited the insurrection. I haven't seen any briefs claiming that he is guilty of engaging in insurrection purely because of his inaction. Could you link me whatever brief it was that I missed?
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No the democrats are not the government. Biden is the executive. He is arguably (weasel word) failing his oath of office.
Inaction is almost certainly not justiciable but there is a real political argument that Biden’s policy is ultra vires and therefore not an action by the government.
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Again an invasion doesn’t require use of force by many dictionary definitions. Nor does the constitution explicitly define invasion as by force.
Like I said invasion is like insurrection. Both have some stretchy meaning.
What's your principled reason for adopting a narrow definition of insurrection and a broad definition of invasion?
Don't these points contradict each other?
Doesn’t your insurrection views do the same thing?
And yes I wander how much of my view is usefulness versus honest reasoning.
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It's a "policy" of directly facilitating mass violation of federal law, the previous "policy" of refusing to enforce the law for decades having been found insufficient. It is yet another in a long list of absurd violations that discredit any conception of rule of law in this present "nation".
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I think Abbott should keep shipping the migrants to New York and other 'sanctuary cities'. If they have no problems with uncontrolled border crossings, they should have no problems if those migrants keep right on crossing all the way to their doorstep, right?
It's a bad situation all round; do the Democrats want to do anything about illegal immigration, or are they happy to let the border states deal with all the people streaming in and needing resources, and they can just keep it as a political point about "we're compassionate and pro-minority, unlike those awful Republicans, (but don't ask us to have those people live next door)"?
Enforce the border, or pour more resources into providing hospitals etc. and keeping track of who turns up and where they're going. As it stands, it's a mess and nobody's reactions are doing any good.
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The Arizona case that currently is the most relevant precedent was made on the thinnest of grounds and is ahistorical. And states, traditionally, had the power to reject foreigners, particularly the indigent. Precedents beggining in the 1960s are against this...but the Warren court is notoriously wrong about all things.
Also, the invasion/immigration thing is obviously a question of fact and law to be subject to intense argument and scrutiny if ever litigated. I don't think anyone in the federal government wants to be calling witnesses to the stand about how 5000 people a day crossing the border, more or less unvetted, through cartel territory, is actually technically immigration not an invasion. It looks like an invasion to a large % of the populace. It is an invasion in the practical sense that the people abetting it ( Biden) seek to use it to change the populace of the nation. Its a total landmine for that side. While the Abbot side is simple and good for him, at least until the point where he loses on a technicality (not guaranteed) and then calls Roberts a loser who sucks big donkey dick.
I guess my question here is, if congress passed a law saying that, "The United States shall have open borders. The free entry of persons into the United States shall be presumed to be lawful unless proven otherwise," would that law be unconstitutional under Article 4 section 4? It would be a bit strange for the federal government to not have that power at all, but that would mean that the free movement of large numbers of people across the border isn't inherently an invasion.
I don't know if the best argument for that would be that it violates A4S4. Perhaps better would be to ask which provision of the Constitution authorizes them to pass such a law. A1S8 authorizes them "To establish an uniform Rule of Naturalization", so they could presumably, with the aid of any one state, declare that literally every person on the planet is naturalized, making it illegal for a state gov't to turn them away. Best as I can tell, any direct control over border interactions is much more subtly read in, with the type of reading depending a bit on the theory.
E.g., one might say that the ability to exclude people from entering your territory is inherent in sovereignty. That's a completely plausible way to get to the federal government's ability to enact laws restricting immigration, but in the US, states are also separate sovereigns, so they would presumably also have such rights. In this case, the feds wouldn't have all that much ability to tell the states that they have to have fewer restrictions.
Alternatively, one might frame it as the ability to exclude or to welcome in people being inherent in sovereignty. As such, it would set up a massive clash of the Supremacy Clause with the doctrine of equal sovereignty. Those types of cases tend to turn on the opinions of a small number of Justices feeling out how they read the "structure" of the Constitution, which is always a murky endeavor.
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It probably would be fine, but under Article 1-10 that would not be enforceable against any state utilizing its police powers. The framework, I think, intentionally leaves this power to both sovereigns as the founders presumed each would be corrupt, corruptible, and/or incompetent at any time, and thus they would work to check each other, as appears to be happening with Texas' actions. I think there are indications in the drafting discussions, federalist papers, etc that this is a non-justiciable question.
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So it's on "thin legal ground" and by that you mean it's actually within precedent but you argue that precedent is ahistorical and hence not good law?
I mean, even I disagree with some parts of AZ vs US (in reality, it wasn't a uniform thing, the challenged Arizona law had a bunch of different provisions that I think merit individual analysis w.r.t both the powers of, and actions by, Congress, but I disagree), it remains precedent.
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