domain:felipec.substack.com
HalloweenSnarry
15m ago
Funny you mention clickwrap, because this whole topic reminds me of Ross Scott's campaign on stopping the destruction of live-service-type games, and the legal precedents in the US that basically give consumers no rights over software publishers.
Your post has many at best misleading statements and characterizations. I'll try to discuss just one I'm familiar with in some depth:
Ends “Catch and Release” and formalize the “Remain in Mexico” policy.
tl;dr: Both of these claims are simply wrong. No, it doesn't end "catch and release," i.e., quickly releasing people waiting for their immigration hearings. There is a whole section which describes catch-and-release, i.e., "non custodial removal proceedings" and funds it with billions a year under "alternatives to detention" expansion. Not only does it not end it, it mandates supervision under "alternatives to detention" in situations like an adult border migrant who meets initial screening criteria. And it doesn't even actually require "alternative to detention" supervision either.
For context, Congress in the mid 1990s amended the Immigration and Naturalization Act to make release of people encountered at the border more difficult. Border migrants were detained unless there was a specific showing on an individual basis their release was necessary due to "urgent humanitarian reasons or any significant public benefit" which historically going back decades meant a high bar almost all would fail to meet. Border patrol encountering border migrants had two options; normal removal proceedings or an expedited removal process. Border migrants in either process were to be detained until their hearing, unless they met the strict requirements for release waiting for their process. Trump enforced this strict requirement for release in the US (release on parole) or they could be released and away the removal process outside the country (remain in Mexico). This policy under current law was upheld.
The Biden administration in July 2021 decided to issue an order which essentially required the border patrol to release border migrants under section 212(d)(5)(A) of the Immigration and Naturalization Act (which they did within ~15-30 minutes, see Florida v. US). "Urgent humanitarian reasons or any significant public benefit" meant almost all migrants would now qualify for release. Florida sued and won, the policy was knocked down. The Biden administration came out with a nearly identical policy two months later. Florida sued and won. This went up on appeal and was affirmed at the circuit level. The Biden admin continued along with essentially the same policy and same result anyway.
So, let's move on to this bill. The bill expands release on parole under the expedited removal process. It adds new categories, it adds new discretionary authority to the DHS secretary, it makes "urgent humanitarian reason" into an essentially subjective criteria of the DHS secretary. Instead of formalizing the strict language which was used for decades, it sets out that precedent as its own exception and then adds discretionary authority to the secretary of the DHS to determine what that separate vague language means (a DHS which has argued in court that climate change may satisfy this language). It doesn't even close the one "catch and release" door the Biden admin is currently abusing!
The most damning part for any claim the bill ends "Catch and Release" is that it adds a (b) subsection to section 235 which creates "Provisional Noncustodial Removal Proceedings." Under 235 (b), the DHS Secretary has broad discretion based on undefined "operational circumstances" to require any migrant making an asylum claim to go through this process and mandate release. Unlike the expedited removal proceeding under current law which mandates detention of most asylum claimants, 235 (b) mandates noncustodial supervision under the expanded "alternatives to detention" program which means they will be released. And even then, "alternatives to detention" supervision is not actually mandatory either! The bill allows mandatory release of any border migrant under 235(b) for up to 90 days before any determination whatsoever is completed (currently, the CBP is required to perform an asylum screen before any action is taken). It still gets worse! Any border migrant who failed to be given a "protection determination" within 90 days - there are over 1,000,000 cases on backlog for just initial "fear" screenings before AOs right now - are released and eligible for work permits immediately, and automatically passed on to end review. Wow! This subsection essentially codifies broad swathes of the Biden administration "Asylum Officer" regulatory scheme which is currently in court and likely to lose also.
It is honestly ridiculous to claim this "Ends 'Catch and Release.'" It does no such thing; a hostile administration will not only not be required to stop catch and release, but they're given new tools to justify catching and releasing any migrant found on the border and even mandate it in certain situations!
If you want to argue otherwise, please tell me the exact part of the bill which actually forces a hostile administration, one which has for years ignored court rulings by making slight changes to catch-and-release policies, to stop releasing border migrants into the United States? "We're not doing catch and release, we catch them and then quickly release them under an expanded program which releases them but under government supervision, but also we don't have to do that either" isn't ending catch and release.
The only way this bill ends "catch and release" under a hostile administration is that the Asylum Officers stamp "approved" on every asylum claim and let out the new residents with automatic work permits into the United States.
Trump swoops in
One, illegally allow in tens of millions of people into the United States; two, trick the (hopefully) absolute morons in the GOP to pass a "compromise bill" which allows a hostile administration to staff a army of bureaucrats which can more quickly adjudicate asylum claims under a "more strict" standard (it's really not) than one which could be adopted by executive fiat and then quickly stamp "approved" on large percentages of the illegally released people who now get automatic work permits. And it would have worked if it wasn't for that stupid Trump who is just so bad, doesn't care about immigration or the country, and opposes it because he just doesn't want Biden to get a win. And thank God for that.
Passing that bill would have been unfathomably stupid strategy to reduce illegals and unfathomably stupid politics at the same time. GOP voters and supporters will recognize this bill as a deep betrayal and failure and will refuse to show up in the 2024 election guaranteeing a Trump loss as well as losses in the House and Senate. It also gives your opposition a win on their worst subject and gives slight truth to media mouthpieces to claim Democrats addressed their worst subject. "Well, I tried" but am still horribly failing and polling about the topic is horrible is in fact much worse than "I got landmark immigration bill through Congress" in terms of electoral strategy.
This bill is so unfathomably stupid and/or duplicitous, I wouldn't be surprised if it actually did come from the desk of a GOP Senator. Yet another example of "is the GOP this dumb or this smart?"
Quantumfreakonomics
18m ago
Remember the Ground Zero mosque? Fox News and Jon Stewart milked that non-story for months. That discourse would last about 8 hours in 2024.
HalloweenSnarry
21m ago
I actually kind of like the idea of this; you wake up one day, your doodad has been pwned, and the screen on it says "if you are seeing this, please call [govt. number]."
hydroacetylene
24m ago
Real talk- I expect the welfare parasites have above replacement TFR partly due to haredi Jews and partly due to teen pregnancy. I don't think the average man in the ghetto actually has elevated fertility; it's more likely that there's a few who commit a lot of statutory and a few groups like haredi jews or the FLDS that push welfare user TFR higher by having 6+ children each even if there's not very many of them.
hydroacetylene
29m ago
Virginia is a blue state to begin with and it tends to swing away from the party in power, not towards it. They also have a weirdly timed election that would strongly benefit democrats if Trump wins in 2024 and IIRC Youngkin can't hold two consecutive terms.
quiet_NaN
30m ago
You can't DEI your way to being able to do math, physics, or chemistry that actually works. Other departments are perfectly safe to keep using these political statements though - sociology departments produces can net-negative knowledge, there is no requirement that they ever do anything that actually works, and nothing about their funding relies on that changing.
Sounds like you are saying that the STEM subjects are intrinsically white and racist, while the social sciences are sufficiently enlightened.
I kid, I kid.
In my model of reality, the STEM-powered industrial revolution did more to (ultimately and mostly inadvertetly) improve the lot of formerly non-free underclasses in two centuries than the humanities and social sciences did in two millennia.
For what it's worth, I share your ideal of being color-blind instead of putting one's hand on the scales to ensure equality of outcomes. The ultimate arbitrator of what constitutes good physics should be reality, not a HR panel.
urquan
The end desire of the system is Kubernetes for human beings
31m ago
I'm not an economist and I don't understand much about it, so I wish you and @LateMechanic would have a discussion to illuminate this a bit. He seems to be pro-MMT and you seem to be against. You two have any thoughts on the other's view?
HalloweenSnarry
39m ago
I feel like both things have happened; some things that might warrant longer-term discussion are out of the news quick, other things are dragged out into a narrative.
Ben___Garrison
Voltaire's Viceroy
44m ago
Sure, the additional restrictions you mentioned do exist, but remember the priors here. The Border Emergency Authority is a draconian measures meant to be used sparingly for emergencies, not a "you must meet these criteria to even start deporting illegals" that Trump, Gaetz, and others painted it as. You could strip out the entire Border Emergency Authority and it would still be quite a conservative bill, adding funds for normal enforcement and closing the asylum loophole among other beneficial things. The biggest issue with the BEA is that it sunsets after 3 years so it's only really meant to be used for the current surge, but opponents of the bill keep neglecting to mention that since it screws with their narrative that the BEA is a permanent bad thing.
Despite those restrictions, under the current numbers Biden would be required to use the authority. This would have been a win-win for those who want enforcement. Either he uses the authority and gets illegal immigration under control, which would be good, or he wriggles out of using it, providing fodder for Republicans to say we need an even more draconian measure to stop illegal immigration.
RandomRanger
Just build nuclear plants!
49m ago
Can't they rehire people as a contractor and effectively give them a pay rise? This is standard practice in many bureaucracies, as far as I understand it.
There are all kinds of Yes-Minister style games you can play.
quiet_NaN
56m ago
The degree to which a government decision is about budget exists on a sliding spectrum.
Consider two extremes:
- The government wants to provide better care for kittens, so they nationalize Facebook and pay animal shelters from the income. Equivalently, they make a law requiring Facebook to house a certain amount of kittens.
- The government allows or forbids abortions, gay sex or gun ownership.
ADA is somewhere in between these extremes. It is clearly has a direct monetary impact on businesses. And sometimes as with the free videos, the outcomes are clearly bad.
But I don't think it is 100% only about money.
Consider a community of 10k of people with 20 wheelchair users and a single non-wheelchair supermarket. Say the owner has done the math and building a wheelchair ramp would not be cost-effective. I see the following options:
A) The government shrugs. B) The government pays some allowance to the wheelchair users. They try to pool together to get that ramp. The owner agrees. Good outcome. C) Like B, but the owner still not want the ramp. The ramp would take one of the spots of the parking lot (in fact, the best spot!), and he wants rent for that. Eventually the government overpays severely for that ramp. D) Like B, but the government forces the owner to allow that ramp. The owner mumbles something about commies. E-G) Like B-D, but the money comes from the government directly based on general rules instead of the actual demand. This bypasses coordination problems, but risks being less cost-effective. H) The government forces the owner to pay for the ramp out of his own pocket. Again he grumbles something about land of the free. In the end, everyone pays through increased supermarket prices and the general costs of having to follow more laws. I) Some kind of technical solution. Exo-skeletons, shopping-as-a-service, whatever.
Most of these options are not great. Excluding wheelchair users whenever the market forces are not in their favor is not nice. Creating more regulations is also not nice. Having a bureaucracy which figures out how much the supermarket should be paid for allowing that wheelchair ramp also is not nice. Relying on technological solutions will not always work.
Making the supermarket owner pay for the ramp has at least the advantage that there is little bureaucratic overhead. You do not need to figure out a fair price for getting the owner to allow that ramp, or if the government should pay for a ramp in the primary color of the market, and how much the government should pay if the owner also uses that ramp to move carts of goods, or employ wheelchair ramp inspectors. Pay for the ramp or get sued is not the simplest law there could be, but it is not the most complicated either.
This does not mean that the pathologies you mentioned (e.g. that it is easier to sell hidden costs than visible costs) don't play a role, though.
Civil suits can be very Zif's Law-prone, where a small number of actors can put an outsized number of lawsuits forward, unless the statute is very limited (and the various enforcement arms actually stick to that rather than redefining it). Laufer from Acheson Hotels v. Laufer, for example, filed "557 suits in sixteen different states, plus the District of Columbia", and while she's at the higher end of ADA testers, individual people with thousands of tester lawsuits exist.
But that depends on a number of very specific attributes: ADA tester targets have a lot of capital, they're often represented by insurance companies that are willing to give cash, the (court and administrative interpretation of) relevant statutory language in many circuits allows both standing and damages to be found without normal concrete harm, a very compliant regulatory system that writes increasingly broad material to base a lawsuit on, so on. Hence why SB8 lawsuits are very thin on the ground, and with HB1557 only allowing declaratory and injunctive relief it'll be the domain of morons tilting at windmills. The gun private right of action laws tend to be much more mixed -- lots of cash out there both to support lawsuits going in and reward them coming out, but standard of harm is a mess, and the PLCAA is only dying rather than dead.
In theory, it should be possible to write statutory language that limits testing trolls while still allowing even small lawsuits over actual harm, but a) a there's a pretty sizable portion of the support for the ADA that thinks the lawsuit heavy enforcement is a benefit, and b) it's not clear that actually would work, anyway.
gattsuru
1hr ago
It was all boiled down to that 5000 number that you’ll see repeated over and over again in Republican criticisms of the bill. What’s worse is that this number is presented as a capitulation to Democrats rather than a ceiling on the use of a draconian new power granted in a heavily conservative bill. It’s presented as if the bill mandates open borders for the first 5000 illegal immigrants every day, and only then begins to enforce some border policies. This is so laughably, bafflingly wrong that it defies belief.
In addition to the obvious no-trust problems -- there was already wide suspicion that official numbers on undocumented crossings (aka gotaways) were underestimates before the feds had additional cause to massage them down, and there's no judicial authority to require the Border Patrol to actually do something even should they report the real numbers, there's some fun questions about how mandatory 'shall' language gets -- the proposed bill had a number of other wide ceilings to its use that your summary glosses over:
- The count only includes "encounters" "between the southwest land border ports", "between the ports of entry along the southern coastal borders", and "between the southwest land border ports of entry of the United States", where "encounter" means physical apprehension and/or seeking admission at a port of entry. Gotaways don't count.
- "Aliens described in subsection (a)(2)(C) [unaccompanied minors] from noncontiguous countries shall not be included in calculating the sum of aliens encountered."
- "If the President finds that it is in the national interest to temporarily suspend the border emergency authority, the President may direct the Secretary to suspend use of the border emergency authority on an emergency basis." [for 45 days out of a year]
- The Secretary of Homeland Security only shall activate the border emergency without review on crossing the numeric thresholds for 90 days for the first year, 75 days for the second year, and 60 days for the third year; the SHS has unreviewable authority to not activate the 'mandatory' emergency for 180/150/120 days, and may not activate it at all the remainder of those years.
- The Border Emergency's exception lists includes "An alien who an immigration officer determines, with the approval of a supervisory immigration officer, should be excepted from the border emergency authority based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests, or an alien who an immigration officer determines, in consultation with U.S. Immigration and Customs Enforcement, should be excepted from the border emergency authority due to operational considerations." [eg, just because there's a border emergency active and mandatory doesn't mean any alien must actually be handled.
- ‘‘(A) SUMMARY REMOVAL .—Notwithstanding any other provision of this Act, subject to subparagraph (B), the Secretary shall issue a summary removal order and summarily remove an alien to the country of which the alien is a subject, national, or citizen (or, in the case of an alien having no nationality, the country of the alien’s last habitual residence), or in accordance with the processes established under section 241, unless the summary removal of the alien to such country would be prejudicial to the interests of the United States. [emphasis added.]
Ben___Garrison
Voltaire's Viceroy
1hr ago
The bill was basically a tactical retreat in a losing war.
Surely you mean a tactical victory in a losing war?
The correct play was to put the election on immigration as a major issue and try to get support to change the entire system.
How would not passing the bill come closer to that goal?
I can already see it now:
Trump: Biden has been terrible for the border!
Biden: What do you mean, I tried to fix the border but you wouldn't let me!
The result: Nobody's mind is changed. Then maybe Trump wins, he tries more executive orders, but they keep getting mutilated by the courts as they did in his first term.
Jiro
1hr ago
But if it IS doing a thing (like the ADA currently), then presumably we can still explore what would be more or less effective, even if we stipulate that you might not think it should be doing that thing in the first place?
But I don't think the government should not be doing that thing. (Defined nontrivially.)
Helping disabled people isn't bad. The problem is that doing so through lawsuits creates problems that don't happen when the government just taxes people and pays businesses $X to have disabled accommodations.
Ben___Garrison
Voltaire's Viceroy
1hr ago
PR doesn't end with just public facing statements. For example, if an organization is established to help the poor but all the workers openly hate poor people, that's a PR issue since news organizations or even just the poor people themselves would eventually realize how much the organization loathed them.
And again, Trump's loathing of illegal immigrants has never been a secret by any means.
Jiro
1hr ago
Multiple people referenced the exact same remark shortly after the meeting was over, so I think it's safe to assume he really said it.
But it can't be a PR strategy if it was said in private and not meant to be publicized.
Ben___Garrison
Voltaire's Viceroy
1hr ago
How to square this with something like @gattsuru’s recent post (and follow-up)? He starts from the assumption that Republicans are, in fact, no longer interested in compromise
I agree, they're obviously not interested in compromise, and in some cases it's for good reasons. That said, even if this bill just added the text about amending asylum rules to the official US laws, this bill would have been worth it. Dealing with asylum stuff is something Trump struggled against for his entire presidency, and he kept failing due to the courts ruling that EO's couldn't override rules of Congress. Had this bill passed, then at least any EO's Trump would enact in his next potential administration would carry much more weight.
When you add in the rest of the bill and compare it to the paltry concessions given to Democrats, the choice to pass it should have been obvious even if the Democrats tried to stonewall it in some (or many) ways.
I suspect that relying on Trump’s branding is a strategic blunder. No, it’s relying on one man in general.
Couldn't agree more. Candidates should be avatars of the people to enact desired policies. Trump was plausibly this sort of person in 2016 which is why I voted for him then, but he's since proven that he's really not up to the task. The Republican base should have dumped him for Desantis or some other candidate in the 2020 primary. Sure, all candidates have problems, but if they didn't do what was wanted then they should have been dumped too, and the base should have kept dumping candidates until somebody actually enacted policies. Instead, the Republican party has effectively turned into a cult of personality since many Republicans' only barometer of candidate quality is "how much he makes leftists seethe".
faul_sname
Fuck around once, find out once. Do it again, now it's science.
1hr ago
Then, moreover, they know that there have been many high-profile instances of products shipping, having an interface exposed that is trivially-attackable, and when it's attacked, the manufacturers ignore it and just say some bullshit about how it was supposed to just be for the manufacturer for debugging purposes, so they're not responsible and not going to do anything about it.
Was "lol we didn't mean to leave that exposed" a get-out-of-liability-free card by UK laws before this guidance came out? If so, I can see why you'd want this. If not, I'd say the issue probably wasn't "not enough rules" but rather "not enough enforcement of existing rules" and I don't expect "add more rules" to be very useful in such a case, and I especially don't expect that to be true of rules that look like "you are legally required to use your best judgement".
It's a bullshit thing by bad entity manufacturers who don't care.
I agree, but I don't think it's possible to legally compel companies to thoughtfully consider the best interests of their users.
Honestly, I probably would have not done as good of a job if I had tried to put this set of ideas together from scratch myself.
Neither would I. My point wasn't "the legislators are bad at their job", it was "it's actually really really hard to write good rules, and frequently having bad explicit rules is worse than having no explicit rules beyond 'you are liable for harm you cause through your negligence'".
Quantumfreakonomics
1hr ago
What is the current prevailing Israeli opinion of the Gilad Shalit prisoner exchange? I can sort of imagine what the steelman would be at the time, but given what we know now, does anyone still seriously defend this?
sliders1234
2hr ago
His analysis also ignores the arguments here placed on why Sotomayor shouldn’t retire. I think the consensus came to be if you have a star justice you shouldn’t force them out because you want to strategically gain seats but you want to move the Overton window by having a top tier justice on the bench (more like Ginsberg or Scalia).
The bill was basically a tactical retreat in a losing war. Sure the bill did some good things but it’s on the lose the war trajectory. The GOP needs to change the Overton window. One persons vibes is another persons attempt to change the Overton window.
The correct play was to put the election on immigration as a major issue and try to get support to change the entire system. Perhaps this is a long shot but if you’ve already lost your best play is to buy a lottery ticket.
The bill is like buying an annuity with high inflation. It’s going 0 in time. A riskier investment that can survive inflation is the only viable option.
Ben___Garrison
Voltaire's Viceroy
2hr ago
I think the Trump strategy is to gamble everything on a big win in the upcoming elections.
I addressed this in my paragraph before the last section. Not only does Trump need to win, he'd almost certainly need a trifecta. The odds of this are somewhere between 20-50% based on prediction markets, and any bill they'd be able to clinch would likely only be 10-20% more conservative in the best plausible outcomes. Then, it'd have to pass the final hurdle of Trump actually caring enough to do it. He didn't accomplish any major legislation on the issue even when he had a trifecta and instead focused on other priorities and only did EO's on immigration.
In terms of getting an enduring compromise, it'd almost certainly be easier if they started with this bill, and then just extended it, possibly adding to it slightly if possible. "Hey, remember that bipartisan immigration bill that fixed the border crisis? Let's just extend that" is a pretty easy sell. Even if Trump gets his trifecta and wanted to pass immigration reform, if history is any guide then Trump would screw it up in the long term by doing something like calling it the Subhuman Infestation Removal Act, Democrats would freak out, and they'd revoke it the next time they're in power.
You call his decision self-serving, but from a game theory perspective that's the whole point.
Sure, I understand why Trump is doing it. What I don't like is that the Republican base is just going along with it. They're so enamored with Trump's vibes that they're willing to sacrifice easy, concrete policy wins.
quiet_NaN
2hr ago
From my limited understanding, the president is the head of the executive, and any democratic legitimacy of the federal bureaucracy ultimately comes from the fact that the bureaucrats are enacting the will of a democratically (or however you call the electoral college system) elected president. While there are certainly mid-level bureaucrats who would do everything legal in their power to thwart his preferred policies (and some might even risk their job by going beyond that), I think the rest of DC pretending that Trump does not exist will not be an option. For one thing, do you really suppose the Supreme Court would play along with that? If they do not, should the rest of DC also pretend that the Supreme Court does not exist?
We already had four years of Trump. He was not my favorite president, but contrary to predictions from the left he turned out not to be the reincarnation of Adolf Hitler. I don't think he would build death camps in his second presidency. It would not be the end of the world.
On the other hand, democracy in the US had (with one notable exception) been a great success in avoiding conflicts being resolved by force of arms. Even if Trump's supporters would idly stand by while the executive defected, the long term effects of establishing that the federal bureaucracy is independent of the president would likely be violent.
Trump's second term would not be about replacing the constitution with the Fuehrerprinzip. If he gets the EC votes, he may get out of legal troubles which may or may not have been politically motivated in the first place. This will not be the end of the world any more than Nixon getting pardoned about Watergate was the end of the world.
For winning the election.
You pass the bill. Biden then implements tighter policy for 6 months thru the election claiming victory. Then he uses all the loopholes later to go back to open borders. It’s far better to expose the immigration issue and pass a clean bill after the election.
Also - I opposed the bill before Trump opened his mouth. You are not being honest when you say Trump tanked the bill. The opposition was organic when many of us read the bill and saw how awful it was. Perhaps our system was awful before hand, but this bill doesn’t fix the main issues as many here have pointed out to you.
I meant what I said when I said tactical retreat. This is no victory in this bill. It’s admitting defeat and falling back with little value.
I get it you don’t like Trump. I’ve never voted for Trump. I don’t like his personality. But when I looked at history the dudes always right. He’s earned the goodwill of the American people because he has good judgement. So sure many Americans don’t have time to read the bill and will make decisions on vibes. All of us do this everyday and trust people who have proven trustful because we can’t be knowledgeable in everything. Trump has earned that trusts.
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