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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.
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.
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.
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?
It doesn't dispute that because it isn't actually a meaningful issue to address and it isn't necessary to defend their side of the case (and it deals with lots of facts not relevant), not because there's no case to be made - if you read the brief carefully, the whole point is that whether or not what others did that day could qualify, the argument is that nothing Trump did would. At most, his brief simply characterizes what the Colorado Supreme Court held, and does not admit its correctness or otherwise opine.
Your second paragraph just assumes the conclusion to be proved - while that's one interpretation of the results, it's not the only reasonable one, nor indisputably correct. And your Virginians hypothetical, while useful to think about, hides more than it illuminates because it only seems particularly bad if you also allow all the subsequent Civil War context in, and assume that their motive is exactly as described. If, for example, their motive was plausibly "wanted to confirm that all electors had an opportunity to cast their votes uninfluenced by outside pressures" and the result after what they did wasn't the Civil War but a peaceful transition to the next administration, I don't think we end up with the 14th Amendment in its current form.
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