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The Volokh Conspiracy

Today in Supreme Court History

Today in Supreme Court History: November 13, 1856

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11/13/1856: Justice Louis Brandeis's birthday.

Justice Louis Brandeis

Don't Forget the One-Fifth Clause

A column at Politico claims that the Senate can, by simple majority vote, decide on a secret ballot for impeachment -- but I don't think so.

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This column at Politico (by Republican political consultant Juleanna Glover) argues:

By most everyone's judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn't have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?

A secret impeachment ballot might sound crazy, but it's actually quite possible. In fact, it would take only three senators [Republicans who would cross over to form a majority with the Democrats] to allow for that possibility.

But I don't think that's right; article I, section 5 of the Constitution provides (emphasis added),

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

That seems to provide a clear rule governing the matter: If 1/5 of the Senators oppose a secret ballot, the yea and nay votes "shall … be" made public, e.g.,

You'd need 81 senators for secrecy, not 51. Whatever one might say as a policy matter about the advantages and disadvantages of secret ballots, the Constitution's text has taken a very specific stand on this subject. (Prof. Josh Chafetz (Cornell) has argued the same, and I'm sure others have as well.)

The column has an UPDATE, reading,

Some constitutional scholars have pointed out that Article 1, Section 5, of the Constitution designates that 20 senators can oppose a secret ballot on "any questions," but "questions" are defined as "Any matter on which the Senate is to vote, such as passage of a bill, adoption of an amendment, agreement to a motion, or an appeal." No mention of impeachment proceedings is made. And, as others have pointed out, preceding this one-fifth requirement is crucial language: "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy." Precedents are so thin here, but it is clear the Senate has the power to make its own rules over the trial proceedings. Those rules have historically required a simple majority of support.

That, though, seems wrong to me. First, the Constitution doesn't limit "any questions" to bills, amendments, motions, or appeals (which would mean appeals from procedural rulings). That quote comes from the Senate's web site, which doesn't seem particularly authoritative on this score—and in any event, gives bills, amendments, and the like as such examples ("such as") of "questions." Whether to remove a President from office strikes me as well within the term "any question," and for that matter within the Senate site's phrase "Any matter on which the Senate is to vote."

Second, that "excepting such Parts as may in their Judgment require Secrecy" precedes the one-fifth requirement simply makes clear that (1) secrecy is sometimes allowed, but (2) can be overcome by a one-fifth vote, not by a half-plus-1 vote or any other mechanism.

Third, while article I, section 5 does leave each house with the power to "determine the Rules of its Proceedings," that general power is limited by the specific constraints in the same section:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

I take it that we wouldn't think that the Senate could expel a Senator by a 51-49 vote, simply by creating a "Rule[] of its Proceedings" that authorizes that; the "Concurrence of two thirds" needed to "expel a Member" is an express limitation on the Senate's powers, including its powers to make rules for expulsion. Likewise, the One-Fifth Clause is an express limitation on the Senate's powers, including its powers to make rules for operating in secret.

UPDATE: I added the Senate Journal image from the First Congress, just as a vivid illustration of the procedure.

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  1. Professor Volokh,

    I think that the phrase.

    “excepting such Parts as may in their Judgment require Secrecy….”

    applies to each house as a whole, not just to the members who want the matter recorded. So a fifth of the senators can require recording the votes on the journal. But a simple majority can then vote to make the portion of the journal in which the votes are recorded secret. If they did, I suspect courts would not overturn it.

    1. “But a simple majority can then vote to make the portion of the journal in which the votes are recorded secret.”

      Can you walk me through your reasoning? Idk how you got here

      1. “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy”

        Whose Judgement?

        I think the grammarian’s answer is each house, in this case the Senate. The house keeps and publishes, so the house excepts. Which means it’s the house’s judgment what to except. And each house normally acts by majority vote. So that’s how the house exercises judgment.

        The only thing a fifth of the members can do is require entry on the journal. But clearly publishing the journal and making exceptions from publication are separate acts from entering things on it. That’s what the text says. When the Constitution uses two separate words, it means two separate things.

    2. Right. That does seem to be the most technically accurate reading of the section.

      Mr. Derelictionofbooty, the section allows for parts of the journal to go unpublished. Yes, it says votes must be recorded in the journal upon request, but that doesn’t mean the part of the journal has to be published. Two different things.

  2. “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal”

    OK, as I see it, 1/5 can demand the yeas and nays on an impeachment vote to be entered on the Journal.

    Then a majority can vote that that particular part of the Journal “require[s] Secrecy” and thus that part of the Journal won’t be published.

    Then cross their fingers and hope there aren’t any leaks.

    1. …and in case they’re worried about the wrath of the voters, then from greater caution they can vote to keep secret the vote on keeping the vote secret, and so on ad infinitum, so the public doesn’t have to know who was so eager to suppress the results of the voting.

      Sounds like a plan!

      1. “Sounds like a plan!”

        Yes, if it worked, Trump supporters would be forced to blame every GOP senator since they would know which 20 defected. That couldn’t possibly be bad for GOP senators!

          1. Come on, Bob, you know we’d both be all for secret ballots if a Democrat were to be impeached! It’s only blind partisanship which induces us (and all those Senates who held open votes in past impeachment trials) to oppose this common-sense procedure.

          2. A secret ballot for the impeachment trial vote would be a mess.

            You just know Trump would claim he won save for all those illegal immigrants voting. In other news, Trump gave a speech today at the Economic Club of New York in which he declared daughter Ivanka personally created 14 million new jobs. I bet she never broke a sweat…..

      2. The key there is that a simple majority could vote to keep the impeachment vote secret.

        It wouldn’t be nearly as hard to round up a couple of defectors.

        1. Yes, all you’d need is a few Republican Senators open to offers to join the Democratic party as the Republican party died. It probably wouldn’t do them any good, they’d lose the next Democratic primary anyway.

  3. This is the bio of the Politico writer:

    “Juleanna Glover has worked as an adviser for several Republican politicians, including George W. Bush, Dick Cheney, John Ashcroft and Rudy Giuliani, and advised the presidential campaigns of John McCain and Jeb Bush.”

    1. She is probably way out of touch with the current party.

      Does anyone really imagine there are the votes in the GOP Senate majority to depose McConnell and allow this whole pipe dream to get thru the new Majority leader?

  4. This is one of the reasons I love coming to The Volokh Conspiracy. Seriously, this is a pretty arcane topic you’d never find discussed much anywhere else.

    My big takeaway: If 20 Senators want a vote recorded in the Proceedings, it will be. And politicians being what they are, will leak like a sieve.

    The Founders were incredibly insightful men.

  5. Would you need 81 votes in order to force secrecy though? Couldnt politically imperiled Senators just abstain from the vote for secrecy?

  6. The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump. This is in turn predicated on the belief that the only reason any Republicans ally with Trump is they’re afraid of him.

    So whatever the legality behind a secret vote, the desire for one is
    largely predicated on the idea that no sane person would ever support something Donald Trump has done and if only we can remove the pressure to conform Republicans will come to their senses and impeach.

    1. “The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump.”

      No, you’ve got that subtly wrong: They’re not afraid of Trump. They’re afraid of their own voters, who happen to like Trump.

  7. I read it as:

    (Each House shall keep a Journal of its Proceedings, and from time to time publish the same), (excepting such Parts as may in their Judgment require Secrecy); (and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….)

    As in, the names must be entered in the journal at the demand of 1/5th, but the publication thereof is subject to the secrecy exception controlled by majority vote.

    I expect that if there were any precedent on the favored reading it would have been cited, so the only thing we can be sure of is this all dragging on past next November.

  8. Now that the left is getting over its collectivist hissy fit over the latest Trump “Orange Man Bad” outrage, it is waking up to a bad hangover of Impeachment Regret. They realize that Hunter Biden is most likely a criminal and his daddy was using his influence to cover up for his kiddie behaving badly. And they have already blown their load to also realize that impeachment didn’t move the outrage needle any further then the already existing background anti-Trump static.

    Wouldn’t be surprised if at this point the House converts articles of impeachment into some censure resolution in an attempt to save face.

    1. If we wanted really stupid talk radio talking points from awful human beings, we could listen to really stupid talk radio hosts, Jimmy.

  9. If they truly believe they are justified in their vote, then it their duty to vote so publicly, regardless of how it affects their prospects for reelection.

    Secret votes by legislatures are as repugnant as secret courts.

    1. “Secret votes by legislatures are as repugnant as secret courts.”

      Indeed. What next? Secret votes for declarations of war? Budgets? Everything?

      I suppose you could make a case for secret votes – perhaps to approve a secret treaty to co-develop the A-bomb with the British in 1943 or something. But doing so merely to avoid the displeasure of the voters is about as far from democratic principles as you can get. Conducting the public business in public, precisely so the voters can base future votes on that conduct is the very core of democracy.

      1. Most of them only believe in Democracy when Democracy agrees with them.
        If Democracy disagrees then Democracy is wrong.

    2. Yes. It’s a truly insane idea — a secret vote to shield senators from the wrath of their own voters!!!??? WTF?

  10. “Rule IV, Paragraph l(d)

    “[Journal of Proceedings of Impeachment Trial]

    “The legislative, the executive, the confidential legislative proceedings, and the proceedings when sitting as a Court of Impeachment, shall each be recorded in a separate book.”

    https://www.govinfo.gov/content/pkg/GPO-RIDDICK-1992/pdf/GPO-RIDDICK-1992-69.pdf

    (p. 866)

  11. Another problem, maybe.

    Article 1, Section 5 is pretty clear, except that some folks here have blurred it a bit.

    Also clear? Article 1, Section 3: “The Senate shall have the sole Power to try all Impeachments.” So what authority other than the Senate can make that decision? If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?

    Plus, of course, a little farther down in Article 1, Section 3: “And no Person shall be convicted without the Concurrence of two-thirds of the Members present.” Seems like that adds at least a bit of weight on behalf of a non-secret vote. There would be considerable confusion and hell to pay if, after a secret vote, senators started lying about how they had voted, and no one could discern from what they said that the two-thirds requirement had actually been met.

    1. “If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?”

      I’d say no, because judicial review doesn’t apply to situations where the Senate is itself acting as a court. In such situations, challenges to the Senate’s power would be considered by the Senate itself, just as the Supreme Court decides questions of the Supreme Court’s power.

      The only questions, IMHO, to ask on judicial review are: (a) Did the House vote articles of impeachment, (b) did the Senate convict on at least one of the articles, and (c) was the punishment constitutionally authorized (i. e., limited to restrictions on officeholding rights)?

      1. Are you forgetting the Chief Justice presides over the trial and it’s probably up to him to make such a ruling, perhaps subject to reversal by the entire Senate.

  12. While this is enlightening about the public articles of the Constitution, how do we know what the secret Trump rules codicil of the Constitution says?

    I’m pretty sure it says a secret vote is mandatory.

    To sum it up, we have secret witnesses that can’t be heard, we have secret hearings that can’t be disclosed, we have secret testimony that can’t be heard, and now we need a secret vote to decide on all the secret evidence.

  13. If you really want to get into the weeds, and McConnell is on board with removing Trump dirty, and doesn’t care if it means his retirement, there are ways.

    First, conviction is by 2/3 vote of those PRESENT. Convene the Senate with few enough Republicans present, and Trump can be convicted by only Democratic Senators.

    Second, with few enough Republicans present, there wouldn’t be enough to force a recorded vote.

    At this point we’re still nominally within the rules, so Roberts probably wouldn’t object.

    Third, once you’re not bothering with a recorded vote, you can even skip the bare majority, and just operate by voice votes to avoid any roll call exposing the absence of a quorum. Yes, the Senate has a history of doing this sort of thing, taking actions with as few as three members present. Bob Dole was notorious for cooperating with the Democrats in doing this.

    Now, Roberts would probably draw the line at something like that, as well as complain about being rousted out of bed at 2AM.

    So, they do it without him present, and count on him declaring it a political matter, non judiciable. They’d have the enrolled bill rule on their side. I think there’s a good chance he’d vote to let them get away with it, in return for being invited to all the good parties.

Please to post comments

Instant reaction to DACA Case: At Least Five Votes that Rescission Not Reviewable

Given the six-month wind-down, the policy would remain intact until after the inauguration.

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I attended oral arguments today in the DACA case. I will have much more to say about the proceedings, as well as the process to get there, in due time. For now, I will briefly offer my prediction: there are at least five votes to hold that the DACA rescission is not reviewable. I say at least five, because Justice Kagan did not seem averse to that analysis. Indeed, a decision that the rescission is not reviewable could lead to the conclusion that DACA itself is not reviewable. SG Francisco tried to thread the needle by saying DACA was reviewable, but the decision was not. Justice Kagan seemed skeptical of this argument. The specific contours of that ruling would become important if President Trump loses re-election.

This type of ruling would be the best-case loss for the Dreamers. Given the 30-day period following remand, followed by a six-month wind-down period, DACA would remain in effect until after the inauguration. In theory, at least, a Democratic president could simply reinstitute the policy on January 20, 2021. At that point, we would be back at square one, and Texas would sue to block DACA.

The Court already ducked the merits of DACA once in 2016. It could do so again here. And it may take another two years before the case winds its way back to the Court. At which point, the reliance interests would become even greater than they are today.

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  1. If DACA is a policy regarding enforcement priorities, like it appears to be, then DACA should be subject to rescission. There’s no good reason to end the policy, and ending it is immoral and unjust, but it can be ended just the same. And if you’re looking to make an immoral and unjust policy decision you could not ask for a better administration.

    1. There are a lot of good reasons to end the policy. The main one being preventing more “citizen” children from being born here.

      1. There’s a ton of things offensive about this comment, but the putting of “citizen” in scare quotes is perhaps the worst thing about them.

        Those children you refer to, born in the United States to Dreamers, are citizens, full stop. Not “citizens”. Citizens. The text and history of the Fourteenth Amendment, and controlling US Supreme Court caselaw, holds that. And they have much to contribute to this country.

        1. Yup, I’m sure they’ll contribute to gang crime, school behavioral problems, drug dealing, welfare use, and a myriad of other social ills endemic to Latin Americans.

          1. You’re so bad at being an American.

            1. Have you taken a look in the mirror?

            2. That is why his thinking has been a loser (over time, at least) throughout American history, in connection with successive and failed waves of intolerance and ignorance aimed at enough groups of Americans that the targets of historical intolerance substantially outnumber the vestigial bigots.

              The people who attacked Italians, Jews, blacks, the Irish, agnostics, gays, Asians, Catholics, women, eastern Europeans, Hispanics, Muslims, atheists, other Asians, other Hispanics, and other Americans were lousy people. This latest batch of bigots seems nothing special, its reliance on the charms, integrity, and insights of Donald J. Trump notwithstanding.

              The Dreamers will stay. The bigots will lose. Then, the record indicates, they will be replaced by another group of doomed bigots somewhere down the road.

              1. “The people who attacked Italians, Jews, blacks, the Irish, agnostics, gays, Asians, Catholics, women, eastern Europeans, Hispanics, Muslims, atheists, other Asians, other Hispanics, and other Americans were lousy people. ”

                1. Except when Dilan and Arthur attack Catholics. Then it’s OK.

                2. And to make up for all this, we have racial preference for… blacks and Hispanics.

            3. Does being an american mean regurgitating bromides about diversity and paying fealty to an Emma Lazarus poem?

              1. Don’t think I’m talking about conservatives generally. This guy is special.

                Apart from his eugenics and wishing for a civil war, he wants to keep women from voting,

    2. Calling it immoral – I respect your opinion but I think there’s some culpability on Obama for making this decision without the legislature; to hang the future of people on so brittle and fickle a method as prosecutorial discretion makes it virtually certain that they are being set up to be let down in the future. I often chaff at selective enforcement of the law because it doesn’t create an environment where people can operate on a predictable landscape. The right method for Obama was to get a bill through Congress and if he can’t do that, lay the blame at Congress’ feet and move on. The idea that end runs around the process are validated because the ends justify the means get you where we are today. It’s a bit of an intellectual cop-out to say the decision to end DACA is immoral without examining (morally or even procedurally) the setup for failure that was its origin.

      1. OK. So say that since Obama couldn’t get it through Congress it was wrong of him to implement it as he did. Why, exactly was it certain that the beneficiaries would face a letdown? Was it a sure thing that the country would elect a xenophobic liar who’s political strategy would be to play to anti-Hispanic bigotry?

        And whatever Obama did or didn’t do, how does that affect our judgment as to the immorality of the rescission? Not at all, I’d say. Obama’s actions are history – moral sunk costs.

        1. Ignoring the invective, you ask “Why, exactly was it certain that the beneficiaries would face a letdown?”
          Because politicians have different priorities, it is certain that the discretionary judgments made by one executive will not be the same as all successive executives. That’s a given as reliable as the sun rising. The reason our system of governance specifies that the the proper law-making process goes through legislative review and surmounts hurdles of a majority vote is so they are more fully considered and not easily undone when the whims of the executive (or the House) changes.
          Next you ask, “[However the first discretionary decision was made] how does that affect our judgement [about] the recission?”. Because making the first decision was reckless – both in respect to the process of law-making but especially with respect to those whose lives it impacted. It’s basically making people a promise the Executive was in no position to make or keep. As if you promised me that the price of gold will always go up, so I can buy in at any time and always be certain of a positive return. You’re in no position to make that promise, so if I base my life on that investment certainty, I will be let down. Am I culpable for believing you? Yes. Are you culpable for making the promise? Probably, yes, if you assume that people (wrongly, in this case) endow you with more credibility than you have.

          1. You explain why it was possible, not why it was certain, that they would face a letdown.

            Yes, politicians have different priorities, but that hardly guarantees that a future President will rescind DACA. Which of the candidates in the 2016 Republican primaries would have done that if elected?

      2. Calling it immoral – I respect your opinion but I think there’s some culpability on Obama for making this decision without the legislature;…

        Well, get the history right. DACA wasn’t intended to be a permanent fix. It was intended to address an immediate issue that could be further resolved and codified through a bipartisan immigration reform bill. He was trying to create political room to maneuver and perhaps set a path for dealing with the Dreamers more permanently.

        The fact that the Republicans chose to go all-in on an obstruction strategy rather than work with Obama has more to do with why we’re here now than Obama’s initial decision.

        1. In political pejorative, that’s known as political blackmail or gambling with people’s lives. If that was the “initial decision” as you say, it’s hard to turn a blind eye to the role it played in getting us to where we are now.

          1. In political pejorative, that’s known as political blackmail or gambling with people’s lives.

            No, “political blackmail” was trying to force the issue through Congress by suspending the program, as Trump did, and then repeatedly upping his demands for concessions on legal immigration in order to sign off on a DACA fix.

            Obama wasn’t gambling with anyone’s lives. He took a group of people living with great uncertainty and no options in their ostensible “home” countries and tried to give them a degree of comfort while he tried (and failed) to negotiate a fix with Congress.

        2. The Republicans didn’t owe Obama changing the INA to suit his needs. They were under no obligation to change the law and had every right to expect the President to enforce it as written.

          What other laws do you think no longer matter because the President doesn’t like them?

          1. The Republicans didn’t owe Obama changing the INA to suit his needs.

            The Republicans have been wanting immigration reform in various guises for years, and in fact could have negotiated something as part of a bipartisan deal with Obama and congressional Democrats, had they wanted to do so.

            They chose not to because they decided that spending the Obama years campaigning against him (and later, Hillary) was going to be a more successful electoral strategy for them than, say, governing. They sought to deprive him of any “wins” and instead focused on “repealing” Obamacare, among other things. That this proved successful for them is a lot of the reason why Democrats in Congress (and McConnell, in the Senate) are behaving now as they are.

            1. “The Republicans have been wanting immigration reform in various guises for years, ”

              No, Republican officeholders have wanted it for years. The reason they never went ahead with it is because every time their voters got wind of it, they were informed that they’d be voting to retire.

        3. “It was intended to address an immediate issue that could be further resolved and codified through a bipartisan immigration reform bill. ”

          And why would Obama expect that bipartisan immigration reform bill, when he only went ahead with DACA after it had been rejected by Congress? That’s not exactly a hint you should expect legislation.

          Unless Caphon’s point about blackmail explains it.

    3. How is ending DACA immoral? Unlawfully putting your children is that situation is what is immoral. Rewarding that behavior while punishing those who follow the law creates a moral hazard. There’s no moral obligation or responsibility to an economic “refugee,” and that is overwhelmingly the situation we’re discussing.

      1. Unlawfully putting your children is that situation is what is immoral.

        What is immoral about wanting a better life for you and your children?

    4. … an immoral and unjust policy decision …

      Would you be kind enough to articulate the moral principle(s) that make it “immoral” and the legal principle(s) that make it “unjust”?

      1. Uprooting a group of people who have lived here just about their entire conscious lives and kicking them out just to show you’re tough is immoral.

        It’s instrumentalizing other people for your own agenda, so it’s anti-Kantian. It includes high costs to them, negligible cost to us, so it’s anti-utilitarian. It shows no quality of mercy, so it’s not values-morality/Christian.

        1. Uprooting a group of people who have lived here just about their entire conscious lives and kicking them out just to show you’re tough is immoral.

          No it is not. Just because they came here didn’t give them the right to stay. And Trump offered to legalize them and the Democrats refused. If letting them stay is that important, the Democrats should have been willing to give something to get that.

          1. They were willing, but Trump kept backing out.

          2. Actually, it is immoral.

            Sarcastro’s comment covers it very well.

            To harm others is prima facie immoral unless you have a very sound justification.

            You don’t have one.

        2. … kicking them out just to show you’re tough is immoral.

          1. You are not articulating a moral principle; you are simply begging the question.
          2. If someone enters my home without my permission, is my desire to have him removed simply showing that I’m tough?

          1. A country isn’t a home that the President lives in by himself.

            I note that both of you skipped my actual invocation of moral theories.

            1. I note that both of you skipped my actual invocation of moral theories.

              Would you be kind enough to articulate the principles upon which those moral theories are based again?

              1. You want to know the principles behind Kant and Christianity?

        3. “kicking them out just to show you’re tough ”

          That is not part of DACA opposition at all.

          If a premise is wrong, the whole argument falls. QED.

          1. That is not part of DACA opposition at all.

            The point of the opposition by Trump is to pander to bigotry for political gain.

            It really is that simple.

    5. If you’re looking for immorality, you should be looking at the DACA parents who dragged themselves and their children illegally into a foreign country, evading its democratically enacted laws, and thereby condemned their children to a life in the shadows.

    6. “Prosecutorial discretion” based on age and race/national origin seems rather illegal to me, even ignoring the whole “ignore an entire class of crimes” conflicting with “faithfully execute the laws” bit.

      But on a different front, DACA implemented a work license program, employs people to maintain this program, rents space to house these workers, hires folks to work with the illegals to enroll them in the program or work with them, and so on.

      All of this is done without funding approval from Congress. That’s unconstitutional.

    7. OtisAH wrote: “There’s no good reason to end the policy”

      And your reasoning is? How about the fact that it does not — and can not — offer permanent refuge in the US? How about the fact that DACA, despite its intended purpose (one I agree with) is one of myriad actions by Congress, the President, and yes the Courts to legalize illegal immigration? How about the fact that the existence of the judicial hold on it keeps Congress from having to actually pass a permanent solution that gives Dreamers their green cards and a path toward citizenship?

      And don’t go on about how “this” administration is all at fault for the DACA debacle. The holy Democrats basically threw the Dreamers under the bus rather than have to soil themselves by fronting a stupid wall for Trump. They’re absolutely part of the problem.

      No good reason? Balderdash!

    8. Congress has been sucking their thumb for what? 4 years? Changes in imigration status of aliens is an article I power.

  2. One can never be certain about law (ironically) but how we could listen to months of narrative about how one executive can implement a discretionary policy and it not be subject to revocation by the next is beyond me – regardless of the subject of such discretion. It seems rather obvious on the face of it. Presidents do not create law – but if they do, as they do so often, it must be the most brittle and flimsy version of law. Looking forward to reading the transcript of arguments today.

      1. Thanks for the citation. I just finished reading some and scanning some of the transcript.

    1. I guess the Democrats want Democratic party presidents to be able to issue executive orders that become law and can only be revoked by legislation passed by a Democratic party majority legislature. Republican president executive orders and legislation by Republican majority legislatures will be legal nullities void ab initio

  3. Haven’t followed . . . is the “six month wind down” something the administration created, that they could simply nix to end DACA immediately if the ruling goes as Blackman predicts?

    1. I suspect it’s something on the part of the administration, just to give the DACA people some time to make some effort to regularize their status or make travel plans.

      And to give Congress some time to move off their asses. Apparently they’re not going to pass an actual bill to legalize the “dreamers” without poison pill amendments until the clock starts ticking on their deportation.

      1. Brett ,

        They are not going to pass a bill unless Trump says he’ll support it. And he’s not going to support a clean bill.

        It’s not the pro-DACA people who are putting in poison pills. It’s Trump.

        1. They are absolutely putting in poison pills. There are around 800,000 DACA people, but the Democrats keep trying to sneak in 3-4 million (at least), in exchange for virtually nothing, and they use the more vague term “Dreamers” as obfuscation. Their entire aim here is to achieve permanent electoral advantage, of course, so they can advance the rest of their transformative agenda.

          I know you can just as easily say Trump is putting in poison pills because he wants to build the wall, etc. The measures he wants are poison to Democrats of course for the same reason stated above.

          But that’s why it’s called a trade-off. The American people’s support for DACA needs to be viewed in context. The American people support a trade-off. Point by point, I can show you that the things Trump has proposed on immigration as part of a grand bargain, which the media likes to label “far right” and such, are supported by the American people, sometimes 60%, 70%, 80%, and higher. And the polls show Americans support all of this as together as part of a grand bargain.

          Of course, the problem standing in the way of that isn’t just Democrats. Not at all. It’s the Republicans too, it’s the big business lobby, it’s virtually every influential interest aligned against the American people. So what Trump gets from the point persons in this negotiation who happen to be Democrats, is “My offer is this: nothing.” They intend to have it all and not give one inch.

          It’s been clear for a long time that the only shot at success for the real America First agenda is if he wins a second term.

          1. Sounds like you need to talk to that liberal softie Brett about wanting a clean bill.

          2. There are around 800,000 DACA people, but the Democrats keep trying to sneak in 3-4 million (at least),…

            The 3-4 million you’re speaking of, of course, are other people brought to the U.S. as children and with no meaningful connection to their home countries, but arrived too late or were too old for DACA. That’s why they get lumped together with the rest of the “Dreamers.” It’s the same type of people, just outside Obama’s original window.

            Calling them a “poison pill” is actually the “poison pill.” That is, if you’re drawing the line at just existing DACA recipients, you’re arbitrarily cutting off relief for no good reason other than to keep the numbers down.

            …, in exchange for virtually nothing,…

            What is it that you think Republicans wanted, “in exchange?” The Dreamer fixes that were floated already came with tons of caveats and limitations. Some of the pathways to citizenship were ridiculously, absurdly long; penalties demanded were cost prohibitive; and then there would be the non-negotiable bars of public benefits.

            Again, you’re just sort of re-framing things to ignore the nature and extent of Republican demands. The Dreamer fixes were compromised. Republicans wanted more – more restrictions on asylum and refugee migration, more limitations on visas, more money for the wall, etc. And Democrats were willing to give some of that, too – even though it was bad policy!

            It’s been clear for a long time that the only shot at success for the real America First agenda is if he wins a second term.

            It’s bizarre to me that anyone thinks that Trump will have any reason to pursue anything other than a Trump First agenda if he’s re-elected. Surely we know enough about him now than to believe he’ll do anything for the U.S. if he gets another four years.

        2. “And he’s not going to support a clean bill.”

          Why should he, or any other President, support a “clean” bill? The need for DACA is a symptom of an underlying problem. Shouldn’t the bill fix the problem? Build a wall, streamline the process for coming hear legally, etc.

        3. Bernard,

          Any immigration reform that lets in the DACAs must include greater immigration enforcement.

          Otherwise, it’s just an incentive for future illegal immigration. Illegally immigrate, skip the queue, get legalized. Good for everyone. Except poor Americans who find their wages suppressed.

          1. Any immigration reform that lets in the DACAs must include greater immigration enforcement.

            Which the Democrats have offered.

            1. Yes, in much the same way they offered it in ’86: In a form which would be easy to avoid actually delivering on. Authorization for spending down the road, not appropriations for spending now.

              Charlie Brown isn’t actually obligated to try to kick that football, you know. He’s allowed to take into account it’s Lucy holding it, and insist she set it down and back away before kicking.

            2. Not realistically.

              Let’s be honest here. If Democrats had offered funding for Trump’s wall in exchange for DACA being written into law, it would have been a deal both could have accepted easily.

              But Democrats couldn’t accept that. They couldn’t accept funding Trump’s wall (beyond a symbolic dollar). They couldn’t give him the “win” in exchange for DACA. So…here we are.

        4. I love how Democrats demand “clean” bills for their priorities, but reject them for others.

  4. So, help me out. Is the Court setting up a situation they will just follow the lead of the elected branches? If Trump is re-elected, expect DACA to go away via some motivated reasoning, if he loses, expect the Courts to say it’s good to go?

    1. So, help me out.

      As Caphon noted above, the issue is whether “one executive can implement a discretionary policy and it not be subject to revocation by the next … regardless of the subject of such discretion.”

  5. There are really only 3 logically consistent positions, only 2 have been made:

    1. DACA did nothing, thus no one has standing to challenge changes to DACA.

    2. DACA did something, that something was outside the scope of the law, thus it is illegal.

    3. (Mystery argument not yet made). DACA did something, there is a buried portion of the US Code that no party has yet cited that makes this legal, and all previous administrations prior to Obama had been very confused about the law.

    1. One of your three “logically consistent” arguments is a mystery argument that hasn’t been made yet? That’s… something.

  6. This was a good read two years ago, and remains so.

    http://www.anncoulter.com/columns/2017-11-15.html

  7. Prof. Blackman and I agree on something.
    That’s my take as well.

  8. I thought that the administration’s positions were not just wrong, but actually impossible to defend. Now I hear that there are at least five votes for ending the program.

    Clearly, the only reasonable response is some sort of complex conspiracy theory.

    1. The two aren’t mutually exclusive or, at least, not as mutually exclusive as it sounds. “Recission is non-reviewable, but if it was your arguments are shit” is a coherent position.

    2. The response is you are an idiot who has no understanding of how the rule of law works and seem to think that one President has the power to do something that another does not based on your opinion of each President.

    3. “five votes for ending the program” is different than “five votes deciding the decision isn’t (or is) reviewable by the Court”. The President’s decision to end the program may follow from the Court deciding the can’t review it, or from the Court deciding it can but also finding the decision is within the President’s purview.

  9. What’s remarkable about the oral argument is how Justice Sottomayor seems to have suddenly gotten religion. She sounds like she just walked in from protesting an abortion clinic. She repeats the phrase “destroying lives” with the sel-righteous air of someone used to doing sidewalk counseling and holding up enlarged pictures of body parts. She says “This is not the about the law. This is about our choice to destroy lives” with the smug, judgmental fervor of a fundie.

    She acts, in short, as if she could could just walk away and joined the other side, as if she had never previously written against making moralizing judgements about termination choices, as if she had never previously believed that protecting Americans’ freedom to make the very choice she now some self-righteously castigates lies is at the heart of what our law is all about.

  10. I guess liberals want a ruling from the court that Democrat presidents can issue executive orders and can overturn executive orders of Republican presidents, but that Republican presidents cannot issue executive orders that overturn executive orders issued by Democratic party presidents. Why, because Republicans are bad. Inequality is good if it is against people we know are bad. We become a nation of men, not laws.

  11. It’s crazy to me how difficult it is to undo a regulation. Doesn’t seem right.

  12. So I guess if Scotus rules the way Blackman wants he will be celebrating the addition of one more line to his CV, while the deportations go on.

    What a fucking asshole.

    1. I’ll be celebrating too. These invaders don’t belong here, and neither do their fellow countrymen.

Please to post comments

Impeachment

Impeachment and the Sixth Amendment

No, President Trump cannot invoke his Sixth Amendment rights in connection with House impeachment proceedings

|

Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society.  In a recent essay, "House Democrats Violate The 6th Amendment By Denying Trump A Public Trial," available here, he makes an argument that the House impeachment inquiry is violating President Trump's Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

Here's the basic gist of what he wrote:

"The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden's son. What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president's constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to "a speedy and public trial." House Democrats are trying Trump in secret and are denying him the right to a public proceeding….

The Sixth Amendment also guarantees criminal defendants the right to be "informed" of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press.  This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right "to confront the witnesses against him," which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right…."

Perhaps "no one is focusing on this" because it is utter nonsense, completely devoid of any apparent constitutional logic.  Yes, impeachment is a "legal proceeding"—but it is not a criminal proceeding to which the 6th Amendment applies; yes, "criminal defendants" are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr. Trump is not a "criminal defendant" in the impeachment proceedings, so Prof. Calabresi's claim makes no sense whatsoever.

To review, here's the text of the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to "the accused" in a "criminal prosecution." There is more than a century's worth of precedent construing that critical limitation on the Amendment's scope.  A "criminal prosecution" begins, and the 6th Amendment attaches, at the "initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable." Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of "actual imprisonment"—a substantial "deprivation of liberty." Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).

Thus, 6th Amendment protections do not apply to:

  • proceedings involving "petty" (as opposed to "serious") crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
  • to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
  • prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
  • parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
  • juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
  • probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
  • summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
  • asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
  • civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)

because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of "actual imprisonment" on the litigant.

The notion that the House's impeachment inquiry is, constitutionally-speaking, an "adversary judicial criminal proceeding" to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a "judicial" proceeding nor a "criminal" proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump's imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]

Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his "6th Amendment rights" (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.

This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is. What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president. And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense. We are in a portentous moment in the history of this country; it is likely that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of "high crimes and misdemeanors." Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.

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  1. The right to confront witnesses against you is “deeply rooted in this Nation’s history and traditions”. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) at 2618.

    The house is violating the President’s fundamental rights.

    1. Does all pre-indictment activity by investigators (let alone actual prosecutors) violate fundamental rights, you bigoted right-wing rube?

    2. Bob, go take a nap.

      What does same sex marriage have to do with confronting witnesses?

      1. For a certain class of clinger, it’s guns, god, and especially gays all the way down.

      2. “What does same sex marriage have to do with confronting witnesses?”

        Just using existing precedent to support my thesis. Was Kennedy saying that marriage, and only marriage is “deeply rooted in this Nation’s history and traditions”?

        1. Are you sure it’s not because you’ve adopted some sort of nihilist approach to the law because the Supreme Court found a right to same sex marriage, and therefore you think nothing matters anymore? And this decision in particular triggered the nihilism because of your not-so-secret antipathy towards gay people? And that you brought it up in this context to specifically to remind people of your not-so-secret antipathy towards gay people?

    3. No, the right to confront witnesses against you in a criminal proceeding is deeply rooted in this Nation’s history and traditions. You don’t have such a right in all contexts and all types of proceedings, and the 6th Amendment doesn’t give you that right outside of a criminal proceeding. If the prosecutor’s office is investigating me at this moment for, say, tax fraud, it can hear from witnesses without giving me the right to confront them; if that proceeding moves to an indictment, then I have the right to do that – but not before.
      Which is not to say that at the appropriate stage of these proceedings — the trial in the Senate – Trump shouldn’t have the right to confront witnesses against him. He should, as a matter of elemental fairness. And, I’m sure, he will. But at this stage of the proceeding? Nope.

      1. “No, the right to confront witnesses against you in a criminal proceeding is deeply rooted in this Nation’s history and traditions.”

        Really?

        We don’t give compulsory process to defendants in civil proceedings?

        You are fixated on the 6A, I am talking about something more “deeply rooted in this Nation’s history and traditions” than that.

        Fundamental fairness. Justice. The American Way.

        Its not just confined to the Senate, the House has to honor it as well.

        1. I should add that:

          “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

          1. Yes! The Constitution doesn’t *give* us our rights and liberties. It merely states in what ways the government cannot infringe them. Just as there is no provision that says that the government cannot infringe on a woman’s right to abortion, the SCOTUS found that right anyway. It might in this situation, as well. Nothing ventured, nothing gained.

            1. All these “living constitutionalists” suddenly getting all textual.

        2. No, the confrontation clause doesn’t apply in civil proceedings, not that a House impeachment inquiry is analogous. The most direct analogy is a grand jury proceeding, and the defendant has no confrontation right there.

        3. Process counts as confrontation now?

          As to your pivot away from the Sixth, you’ve also pivoted away from the OP.

        4. Even if we assume you are correct, an analogy here would be helpful. The inquiry stage of an impeachment is akin to the investigatory stage of a criminal proceeding. A criminal does not have the opportunity to cross-examine a grand jury witness. A criminal does not take part in the crafting of the charges against him. Trump’s lawyers will be able to cross-examine witnesses at the trial, if it comes to that.

          1. If we are talking grand jury process, not only does the defendant not have the right to confront(cross examine) prosecution witnesses, the defendant doesn’t even have the right to present witnesses of his own.

            1. A typical grand jury does not also result in strategic leaking of cherrypicked morsels to a compliant press.

              1. The transcripts have been released, you moron.

              2. Trump supporters demand that the “grand jury” be public or else it’s not fair.
                House releases transcripts in response.
                Trump supporters claim release of transcripts is unfair.

                .whatever.

                1. Precedent from previous impeachments are not being followed. Why is that?

                  1. Two things jump to mind:
                    1) I don’t think we want to hold up Clinton’s impeachment as an aspirational precedent. No one should want that.
                    2) I was under the impression that the current rules governing the impeachment hearings were passed by the GOP majority House during Obama’s administration. Wouldn’t GOP rules being applied to a member of the GOP be considered automatically “fair” here?

                  2. 1) Not true.
                    2) Why does it need to be? Who says that previous impeachments set the “correct” approach? It’s not like we’re talking about firmly established historical practices; we’re talking about an n of 2.

        5. When the government is investigating a civil violation, no, the potential target does not have the right to compulsory process or to examine witnesses. The AG can issue Civil investigative Demands, and there is no right to cross-ex, issue their own process or participate in the investigation and it is not public.See, e,g, 15 USC §1312: or 31 U.S.C. § 3733. I represent whistle-blowers in False Claims Act actions. We go to the feds in secret, and show our evidence. Then the feds can and do issue CIDs (civil investigative demands) for documents or testimony. Sometimes the investigations can last years, and it is all done to investigate the whistle-blower’s complaint. (The False Claims Act is a special interest of Sen. Grassley’s, which is one of the reasons, I presume, why he has come out in favor of protecting the whistle-blower here.) The information obtained by CID can be used to commence either civil or criminal public proceedings. Once the public proceedings begin, the defendant’s rights attach.

      2. Which is not to say that at the appropriate stage of these proceedings — the trial in the Senate – Trump shouldn’t have the right to confront witnesses against him. He should, as a matter of elemental fairness.

        That is an interesting point, Professor Post. What distinction do you make from impeachment versus the Senate trial? In other words, why is one political and the other legal, and why would POTUS Trump not have the same rights in both proceedings?

        Not being obtuse, but am genuinely curious on your take.

        1. To compare against criminal justice process, the House impeachment proceedings would be the equivalent of a grand jury proceeding, where the defense has no right/opportunity to participate in any form.

          1. Ok, I get that. In a grand jury proceeding, there is a judge to mediate the worst/wrong aspects of a prosecutor’s argument/behavior. Where is the mediating agent in impeachment?

            1. The votes of the House of Representatives, which includes elected officials from both main parties as well as others. If the “prosecutor,” which is the entire House, is out of bounds, the voting process will presumably handle that. Assuming, that is, one believes that elections have consequences. Given that the current set of rules governing this process were enacted by a GOP majority House, one would think the GOP would feel the rules were adequate.

              #IronyIsDead

              1. Meh, we’ll see how it all plays out, shawn. Some think Team D will chicken out and not impeach. Others (myself included) think Team D will absolutely impeach. There is a lot of arm waving about process. This has happened twice before: Johnson, Clinton. I was around for Clinton’s impeachment and what I am hearing now sounds a lot like what I heard then. I bet what they said in 1868 is not terribly different than what we hear now.

                Personally, I think ‘We the People’ are the ultimate check against impeachment via the ballot box. If the People have the view that the process was illegitimate, and impeachment wrong; they will unceremoniously dump those responsible.

                Although I do live in the People’s Republic of NJ, I live in a competitive Congressional district. So I wrote my congressman and told him what I thought. And mentioned I’ll be voting in November 2020.

                1. Based on what I’ve been hearing, as someone who also recalls Clinton’s impeachment, I also think the House will vote to impeach and likely do so for good reasons regardless of the role partisanship played.

                  I recall a very long and tedious Whitewater investigation that turned up very little that could be used to impeach Clinton, which is why it boiled down to impeaching him for lying about cheating on his wife. The Democrat-led Senate didn’t vote to remove him and the public voted to re-elect him. That pretty much told the GOP what everyone else thought of their methods.

                  Fast forward to today and we have a significant amount of evidence that this president used his office to extort an allied government into making false charges against an opponent.

                  Lying about cheating on your wife versus withholding money from a country being invaded by Russia in order to manufacture a charge against your potential opponent… not very different?

                  1. The Democrat-led Senate didn’t vote to remove him and the public voted to re-elect him.

                    You remember the 2000 election very differently than I do.

                  2. The Senate that acquitted Clinton was led by Republicans.

          2. That is not how it has worked in the past. What changed?

        2. The distinction is not between political and legal. The difference is between the investigatory stage and the trial stage. Investigations, whether civil or criminal are rarely public. Even when investigating a civil violation the AG can issue Civil Investigative Demands (CIDs) which have the force of a subpoena, in order to obtain documents or depositions. This process was more open than either a civil or criminal investigation because there were GOP members who could cross-examine and leak to press the same as the Dem counterparts. Really, the whole argument is be-clowning the GOP. The Benghazi hearings conducted the investigation the same way–in secret–which by extension of the present GOP argument means the entire rap on Hillary was fundamentally flawed, unfair, unconstitutional and un-American. Abjectly apologize to her and her supporters now, exonerate her of all crimes and misconduct or your position is merely intellectual dishonesty. Me, I’m not ready to do that, but you’ve put yourself in the box of being unconstitutionally unfair to Clinton. Own it.

          Not only that, but the rules allowing such hearings were invented by the GOP House which makes the entire problem and unfair process a GOP invention. If you are having a sudden revelation, apply it across the board.

      3. As I understand the argument. ==> Impeachment is political. There is no need to be fair.

        That is not the kind of country I want to live in. We should bend over backwards to be fair. It minimizes injustice. You get enough injustice and rebellion follows. And rebellion is bad for business. Besides the innocent and guilty getting killed.

        1. I don’t think that’s “the argument” as much as “the strawman.”

          The “argument” appears to be the current president used his position to deny military aid apportioned by Congress to an important national ally in order to get the ally to falsely implicate his chief political rival in a crime as means to help him get re-elected in 2020.

          Do you think we should only bend over backwards to be fair when it’s a Republican in trouble? Or, if fairness applies to Democrats too, what did you think about the treatment of Bill Clinton during his impeachment and Hillary Clinton during the Benghazi fiasco? While I don’t subscribe to fairness in the form of tit-for-tat, that is certainly one definition of it.

      4. Mr. Post, I think you may be playing grammatical games.
        Let us take your claim that this impeachment inquiry is a “congressional” proceeding.

        To what end? To remove a sitting president from office for high crimes and misdemeanors. So, the inquiry may technically not be a criminal proceeding now but once impeachment articles are passed, Does that not, retroactively, make the congressional proceeding, de facto, a criminal proceeding?

        1. Does that not, retroactively, make the congressional proceeding, de facto, a criminal proceeding?

          No.

          While I would not be sad if Donald Trump were indeed locked up, that is not actually a potential outcome of this congressional proceeding, either in the House or Senate.

        2. A judgment of conviction and removal from office does not preclude subsequent criminal proceedings, to which the full panoply of Sixth Amendment rights would apply. A separate matter.

    4. One point : The House is deciding whether Trump should be charged and put on trial, and there is no right to confront witnesses in analogous criminal proceedings, as seen with grand juries and their ceaseless determination to charge ham sandwiches.

      One question : That said, I’d like people who actually understand the law to answer this : Trump is stonewalling the house proceedings, forbidding testimony from White House officials. In the event of a Senate trial presided by Chief Justice Roberts, could testimony by those officials be compelled in any legal and constitutional way?

      1. There are a few cases in the courts now deciding the question as to whether an executive branch employee must answer a duly issued Congressional subpoena in the context of an impeachment inquiry. Although it is true that the president can assert executive privilege to cause employees to withhold conversations an employee had with the president concerning “military, diplomatic, or sensitive national security secrets,” the privilege generally does not extend beyond conversations not involving the president or actions other than conversations.

        Further, the privilege is not absolute (see United States v. Nixon, 418 U.S. 683 (1974), which held (among other things) that the president cannot use executive privilege to withhold evidence that is demonstrably relevant in a criminal trial). Whether the reasoning from US v. Nixon is applicable to an impeachment trial is TBD, but I think the answer is that the employees will be ordered by court to testify and, absent a particularized showing that the information sought by Congress relates to conversations with the president regarding “military, diplomatic, or sensitive national security secrets” , they won’t be able to rely on executive privilege.

    5. I had to create an account to reply to your comment to point out that your reasoning is deeply flawed, and entirely ironic. The test you quote is commonly used to determine whether the Constitution protects certain rights that are not explicitly set forth therein (aka implied fundamental rights). The Supreme Court has historically found such implied fundamental rights existing only to the extent they are “deeply rooted in this Nation’s history and traditions.” The most famous of these rights is the “right of privacy”–the Constitution does not explicitly grant a right of privacy, yet the Supreme Court has held that such right is deeply rooted in this Nation’s history and traditions, and therefore the Constitution protects it.

      The passage you quote is a recitation of this test, and it is being discussed in Obergefell in the context of whether the right to marry is an implied fundamental right. The right to confront witnesses against you, by contrast, is not an “implied” fundamental right, but rather an express right found in the 6th Amendment. That’s your first mistake. The next, more important mistake, is that you’ve failed to note that the rights enshrined in the 6th Amendment, particularly the right to confront witnesses against you, is limited to criminal cases. And an impeachment is decidedly not a criminal case. In fact, the Constitution is clear that the only consequence of being impeached and convicted is the removal from office (and, sometimes, the inability to hold office in the future). In other words, the effect of impeachment cannot be imprisonment or fine (or anything other than removal from office), and, as such, it is not a criminal proceeding.

      Finally, a note on the irony of quoting this passage. There is an argument by many on the right that the Constitution protects only those rights explicitly mentioned in the Constitution, and that only “activist judges” could find that the Constitution protects things not mentioned in the Constitution. Although I don’t know your political leaning or your jurisprudence on implied fundamental rights, my guess is that you’re against activist judges who make up the law as they go along. I therefore delight in the fact that you have relied on an argument commonly used by such “activist judges” to make a point that is demonstrably false.

    6. I knew something dumb like that would be the very first comment (and many of the succeeding ones) I just wasn’t certain which dingbat would make it.

    7. Bob’s cynicism is correct. If SCOTUS can say someone’s 14th Amendment rights are violated by continual recounts of state elections, then it can say a president’s 6th Amendment rights are violated.

      This post by Post also semi-eloquently illustrates the famous joke about 4 lawyers in the room and 5 opinions.

    8. Oh Bob, why do you quote just part of a sentence from a case, out of context, that does not apply to the confrontation right in criminal cases, when trying to oppose an argument that is about the confrontation right in criminal cases?
      What kind of an argument is that?

    9. Agreed – but in the end, I think Trump wins more than he loses.
      When Trump released the call transcript, my first thought was, “He’s hooked the Dims – and now he’s going to play them like a fish!”
      And play them he has. After Schiff lied about his association with the “whistle-blower” and read the FAKE transcript in Congress. Pelosi went nuts thinking the FAKE transcript was the real thing. When she started screaming “IMPEACHMENT!” it was really Trump setting the hook.

      Now Trump’s playing them. The Dims know they have nothing. They can’t back out because they’ll look like fools. They can’t present their case, because there IS no case – and they’ll look like vindictive fools. So they try to hold secret meetings and refuse any witness who might disrupt their narrative – and all of America can see this and understand that it’s what the Dims do when they get caught in a big lie. Look at Schiff – the ass clown who for 3 years swore that HE had evidence of Trump’s Russia Collusion. But where is it? Never existed.

      The real beauty of the impeachment circus is that Dims in Red States will have to go on record against Trump (sacrificing themselves and the House majority) or go on record against the party – splintering a mess that is already divided between morons and super-left ultra-morons. When the impeachment vote comes, that’s when Trump delivers the gaff and it’s all over.

      As for when the matter gets to the senate – I’m favoring the idea that the Senate simply ignore it – never giving it any recognition at all. The Senate can do this. There’s no requirement they hold a trial.

      1. I know that responding to someone who thinks that using the term “Dims” is the height of wit is a waste of time, but

        1) Schiff did not lie, and did not read a fake transcript.
        2) Pelosi didn’t scream anything.
        3) The Democrats have already presented that case, and it takes someone is both morally and intellectually challenged not to see it.
        4) The Senate isn’t going to do that.

  2. Trump Derangement Syndrome is an example of the modern Political Derangement Syndrome that affects seemingly everyone today. What we need is a good war to focus us on an external enemy rather than hunting for the enemy within. If only Hillary had won. /s

    1. ‘s not everyone, just everyone online.

    2. I’d be okay with the war – but can we please just hunt down the libtards and shoot them instead? They’re the greatest threat to America – and it’s time they were destroyed.

      I’m hoping some day I’ll read about the president crowing that we got “Shitty” Schiff and “Nervous” Nancy Pelosi and they’ll never bother us again.

      1. The modern right, folks.

  3. “House Democrats Violate The 6th Amendment By Denying Trump A Public Trial”

    House Democrats are not denying Trump a public trial; they may be arranging something similar to one for him, however.

    Is this the same partisan hack who claimed the Mueller investigation was unlawful?

  4. […] that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

    “One” can trivially see he’s a partisan defending a politician he likes.

    It’s really that simple.

  5. IMO the parties on both sides are being disingenuous. It is a contest for public opinion. The Senate is not the jury, the public is. The public will not only judge Trump’s actions, but they will also judge the fairness of the process. The public’s conclusions and their methods can be as extra-legal as they wish.

    1. While I get what you’re saying, I think you yourself are being disingenuous. The public’s conclusions have only an indirect effect on what the Senate might vote for. If over half of the public find the House’s case against the President valid but the Senate votes to acquit out of partisan loyalty, the President is acquitted. The public majority’s opinion has no impact there. This would mirror the 2016 election where the majority of citizens voted for a different candidate than the one that won the contest. Senators might be worried about how that might impact them in future elections, but that fear is tempered by gerrymandering, voter purges, and other techniques they might use to ensure reelection regardless of the public’s conclusions.

      1. You are mostly right, but of course gerrymandering does not apply to senators.

  6. The Constitution is all over the map, so let’s just say impeachment is at least a *quasi*-criminal proceeding, complete with accuser (the House), defendant (in this case the Pres), and (since it’s the Pres being impeached) the Chief Justice as presiding officer.

    As for what procedures the House follows, I’d say that’s up to them, they’re the accusing body and should have some flexibility – though they should *choose* to observe fundamental fairness.

    And I’m aware of the grand jury analogy – that’s a warning to be avoided, not an example to follow – prosecutors have worked hard to make grand juries into rubber stamps and deny fairness to the suspect – is that worth imitating?

    If the case gets to the Senate, then I’d say the Pres is entitled to due process up the wazoo, including the right to bring in evidence relevant to the accusation against him. So if the accusation is that he wanted to investigate poor Joe Biden from improper motives, then the Pres would be able to counter that narrative by showing that there was actually stuff Biden did which was worth investigating.

    1. But the House inquiry is actually much fairer to Trump than a grand jury proceeding is to the potential defendant.

      There are close to 50 Republicans on the relevant committees with the right to question witnesses, among other things.

      And of course if Trump wants Mulvaney, for example, to appear and testify about the matter he only has to tell him to go.

      1. “But the House inquiry is actually much fairer to Trump than a grand jury proceeding is to the potential defendant.”

        Far too many grand juries observe such rock-bottom standards that saying “it’s better than a grand jury” prompts the response “so was the Star Chamber.”

        1. But isn’t the House acting in the role of the grand jury?

          I don’t think the Star Chamber had a subsequent Senate trial component.

          1. If the House *is* acting in the grand jury role, they should at least have the hardihood not to be browbeaten by some official(s) into using unfair procedures, as many grand juries have been.

            The buck-passing attitude of “if I’m wrong someone else can sort it out” is probably what led too many modern grand juries into being such pushovers to indict. Surely the House of Representatives of the United States would be above such unworthy motives!

            1. I know a few defense attorneys. Grand jury abuse of process is not one of their many, many complaints about the system.

              1. Have I been misinformed?

                I have heard of one case where a grand jury voted to indict and one of the jurors, uncertain of the defendant’s guilt but voting to indict anyway, said “I hope he has a good lawyer.”

                1. “Q: Are the rights of the accused protected?

                  “ANSWER ↕

                  “A: Grand juries are constitutional, so in the broadest sense, yes. But in effect, the rules of grand juries are clearly for the benefit of the prosecution and encourage law enforcement to use unconstitutional means to get an indictment.

                  “The grand jury process does not encourage constitutional police practices. Information obtained by illegal police investigation, unconstitutional surveillance, or by unreliable means, can be heard and relied upon by grand jurors, even though that information would not be admissible if the case proceeded to trial.

                  “Additionally, even if a prosecutor knows of information that would help show that the accused person is innocent, she is not required to present it to the grand jury. So, while two sides are presented in a trial, only one side will be presented in a grand jury proceeding.”

                  https://www.acluohio.org/ohio-grand-juries-faq

                  1. Sure, it’s a lever one could use to reform things like the above evils. But it’s never been used as such.

                    Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world.

                    1. And you know my discovery is sudden because…

                    2. I’ve never heard you talk about grand jury reforms in the past, and you’re not one to hold back on your comments.

                      Perhaps this convenient outlier position is just a coincidence. Though it is mighty convenient.

                    3. I’m not in the mood to link to my three-part discussion of grand-jury reforms, preceding the Ukraine/Trump affair by quite some time.

                      That’s because I want to leave you to your preconceptions and not keep prodding you to change your views, which would simply annoy you.

                    4. I don’t see how the comment you posted is anything like this ACLU argument or the not to be browbeaten by some official(s) into using unfair procedures, as many grand juries have been argument.

                      Still, I’ll cede to your vehemence that you want grand juries to do better, and are applying this to the House. No need to assume bad faith.

                    5. “No need to assume bad faith.”

                      Which makes it all the more interesting that you did so.

                      If you’re going to double down on your assertion, I’d love to see what you do with these posts of mine:

                      https://reason.com/2018/09/24/arizona-leos-arrest-the-wrong-tim-diaz/#comment-7480043

            2. Let everyone who gives an official decision about someone else’s guilt or innocence take their decision as seriously as if they were making the final decision. The House (or grand jury) should be able to say to itself “we’re convinced this guy is guilty and we’ve done what we could to hasten them along the road to conviction. If other people in the system reject our accusation, that’s on them, we at least have done our duty” (stirring music begins)

              1. That you’ve decided this is an important principle when it happens to help you argue online about Trump…

                1. …and you know this because…

                  1. Since I don’t want Trump to be convicted, I might potentially be harming my own case by saying impeachment is a quasi-criminal proceeding governed by at least some of the norms of a fair trial.

                    That opens up the possibility that new evidence against Trump could turn up which shows he committed impeachable offenses (presumably of a worse character than what Congress chose to let slide in the past).

                    If I simply said impeachment was purely political and that the political interests of the U. S. require that Trump be retained as President for fear of handing the country bound hand and foot over to the Democrats, then I could say “acquit Trump” and leave it at that. Not that there aren’t plenty of people here who would be willing at least to agree with my premise.

                    1. Pull the other one.

                      The argument isn’t with yourself, it’s with the public. As such, procedural arguments are a useful tactic to muddy the water and draw the eye from the substance and evidence.

                    2. Simply as a matter of curiosity, I’m interested in when (if ever) you will acknowledge that your “never interested in the grand jury before” talking point will last before you’re too embarrassed to continue with it.

                    3. I wasn’t convinced by your link, but I’m willing to take your word for it since you’re being so insistence, and all I have is circumstantial convenient timing.

                      I try to revert to an assumption of good faith, though sometimes it can strain credulity.

                    4. No, not good enough – see my other link above.

                      And a passive-aggressive stance of “I choose to believe you out of the goodness of my heart” isn’t going to work.

                      No, you are simply wrong.

              2. The claims you made – and which I refuted – are these:

                “Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world….

                “I’ve never heard you talk about grand jury reforms in the past…”

                Again, it’s not just that you failed to prove your assertion, I *disproved* it. There’s no room for you to say you’ll be charitable and assume I’m telling the truth. You stepped in it, and I’m reminding you of that fact.

                1. You deny I never heard you talk about grand jury reforms in the past?
                  Good luck proving that one!!

                  I’ve said I only had a circumstantial case. If you’re going to take it to the mattresses, I can’t really gainsay you. But I’m not uncomfortable with having put you to the question about the convenience of your grand jury due process requirements.

                  1. You were just asking questions!

                    No, not really, you said this: ““Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world.”

                    And what I said about reforming grand juries was this:

                    Eddy
                    September.24.2018 at 3:19 pm
                    So long as grand juries hear only what the prosecution tells them, this crap [false accusation covered in a Reason article] will happen.

                    There seems to be some confusion that because they operate informally, grand juries should operate unfairly.

                    How can the constitutional right to a grand jury have any meaning if their only source of information (apart from their personal knowledge) is some hack prosecutor?

                    Go back to the old days, let anyone share information with the grand jury.

                    Eddy
                    September.24.2018 at 3:37 pm
                    Another reform – let the grand jury hire special prosecutor if it looks like the regular prosecutor, or his witnesses, have been lying, targeting innocent people, etc.

                    Eddy
                    September.24.2018 at 3:39 pm
                    In particular, let them hire special prosecutors to investigate prosecutors who withhold information from the grand jury.

                    If prosecutors are going to pretend to be impartial legal advisors to the grand jury, let them be held to that standard.

                    1. I mean, fine. I guess I wasn’t following Eddie super carefully in September 24th.

                      Still fine with pointing out how convenient your outlier legal view is when I didn’t have that info. You must admit, it’s pretty convenient!

                      As I said multiple times, I’m willing to rely on your good faith. But glad you’re taking the time to demonstrate your consistency. Shows it matters to you.

                    2. “glad you’re taking the time to demonstrate your consistency. Shows it matters to you.”

                      Technically, I’m not defending myself, I’m attacking you.

                    3. Would it matter to you to demonstrate that you’re not a Democratic Party apologist?

                      What proof do you have?

                      I’m just asking questions!

                  2. “You deny I never heard you talk about grand jury reforms in the past?
                    Good luck proving that one!!”

                    Heh, heh, you got me there, I can’t really rebut your “I was ignorant and didn’t know it” defense.

                    1. In fact, far from wanting to challenge your concession that you were ignorant and unaware of the extent of your own ignorance, I will cheerfully accept that concession.

                    2. Not reading every comment on the VC isn’t really ignorance.

                    3. No, but concluding from your cursory reading that I hadn’t commented on grand juries *is* fairly ignorant.

                    4. In short, you made a major misstatement about what I said (or what I *didn’t* say) and you backed up that misstatement with what you now admit was a highly unreliable factoid – namely that you yourself, in your cursory examination, had not seen me say certain things.

                      Now you think you can turn the weakness of your own argument against me.

            3. What are these unfair procedures, Eddy?

              As I pointed out, there are plenty of Republicans in the hearings, and they are not all as stupid as Jim Jordan, so the witnesses are subject to some amount of cross-examination. Possible defense witnesses like Mulvaney and Giuliani are being prevented from appearing by Trump himself.

              Transcripts of witness testimony has been released, contrary to Brett’s imaginings, and there will be public hearings starting tomorrow.

              This “star chamber” crap is a tiresome and inaccurate talking point, with no substance, even if Fox keeps repeating it.

              1. Looks like Eddy wants full trial due process at grand juries – defense attorneys, full disclosure of all evidence. And has for a while.

                Seems pretty unworkable to me, but at least he’s consistent!

                1. Sure it’s unworkable, but then again, I didn’t say it.

                  I’ll have to apply my own remark to you: “There seems to be some confusion that because they operate informally, grand juries should operate unfairly.”

                  1. The one thing you have right is, sure, I think grand juries should have access to the same evidence the prosecutor has. On the other hand, since grand juries can consider hearsay and the like, they wouldn’t have to examine the witnesses in person.

                    And I said outsiders should be able to submit information – not that defense attorneys should have the right to an evidentiary hearing.

    2. Even if the impeachment process were like a criminal trial, the House’s part of this process is NOT a trial. That part is up to the Senate.

      Man there’s a lot of freaked out idiots posting here.

      1. Once more, and let me know if you disagree,

        “As for what procedures the House follows, I’d say that’s up to them, they’re the accusing body and should have some flexibility – though they should *choose* to observe fundamental fairness.”

        1. “fundamental fairness” in a fundamentally political process? You gotta be kidding me.

          At any rate, my comment was meant to be standalone, not a reply.

          One of the dumb things about the Constitution is having nothing less than impeachment, and having no way for anyone but the House to indict a President. No one job should be so important that it requires all sorts of special exceptions to legal proceedings to make it “fair” without disrupting government.

          1. “At any rate, my comment was meant to be standalone, not a reply.”

            I’m afraid I may have misunderstood that point.

            1. My fault. Clicked a Reply by mistake, clicked fresh comment, and it did not forget I had clicked Reply. TIL.

      2. “the House’s part of this process is NOT a trial”

        Its akin to a “preliminary hearing”

        Have you never watched Perry Mason re-runs?

    3. “Grand jury” is simply the most analogous process to the House proceedings and is generally used solely to help people understand why the endless squealing From conservatives about the president’s rights is so much bollocks. Nobody is saying the House inquiry is a grand jury and nobody has proposed turning it into one.

      1. So it’s Schrödinger’s analogy – applicable and not applicable at the same time.

    4. If the case gets to the Senate, then I’d say the Pres is entitled to due process up the wazoo, including the right to bring in evidence relevant to the accusation against him. So if the accusation is that he wanted to investigate poor Joe Biden from improper motives, then the Pres would be able to counter that narrative by showing that there was actually stuff Biden did which was worth investigating.

      It is firmly established that (at least as a matter of law) the president is not “entitled to” any particular process in the senate. The senate could vote to remove him without holding a single hearing if it felt like it. But as a practical matter, he will be allowed to present a case.

      And given that Republicans control the senate, it is likely he will be able to bring in all sorts of smokescreens if he wishes. But showing that Biden did something wrong is not actually relevant to the accusation against him. (I suspect my business partner is stealing from me, and I hire a hitman to get the guy. At my subsequent homicide trial, I will not be allowed to bring in evidence that my now-dead partner really was stealing from me.)

  7. the Co-founder and Board Chairman of the Federalist Society

    This seems like the answer to the non-mystery of why Calabresi wrote the article – for the Daily Caller of all publications. He’s a partisan currying favor with Trump, hoping for a judgeship maybe.

    1. Or, alternately, he could believe it. Occam’s Razor and all that.

      1. He could.

        Doesn’t say much for Northwestern.

      2. How often are important, substantive, professional legal arguments (distinguishable from half-baked partisan rants with a scant legal veneer) unspooled at the Daily Caller?

    2. He’s a partisan currying favor with Trump, hoping for a judgeship maybe.

      No. He’s 70 years old; nobody is appointing him to the bench even if he wanted it, which there’s no reason to think he does.

      Nor does he actually need to curry favor with Trump. Partisanship may explain it, though.

  8. I hoped someonen would touch on this shameful/hilarious issue.

    Props to Prof. Bernstein for being sufficiently clear-eyed. I’ve dinged him before, and will again, but this speaks well of him.

    1. This is Professor Post.

      1. Awww. Dunno how I got that wrong. Well, Post is more expected.

        I’ll keep my props for the next time, then.

        1. One day, Professor Bernstein will write something about evidence. I’m sure of it.

          1. He used to write about Daubert gatekeeping a good amount.

            But I prefer his new posts. I get meaty substantive policy questions at work all the time now.
            This blog, with it’s heat/light ratio in the comments, is how I unwind.

        2. Well, SarCastr0, I appreciate the compliment – even if you confused me with that other David …

  9. What should appear obvious to everyone is that President Trump’s defenders do not want to address the accusations made. The defense seem to rest exclusively on procedural grounds or character assassinations. Is there a point at which the focus is on the accusation that the President was trying to strongarm political help from a foreign power. President Trump says he was not, his defenders seem reluctant to take up this argument. An acquittal on procedural grounds will get the President off but leave us knowing he is guilty.

    1. Guilty of what, exactly? 🙂

        1. Beating Hillary Clinton

        2. So Moderation….what did Ukraine actually do against their will that benefited POTUS Trump? Don’t you need that for extortion?

          1. Not being a lawyer myself, is a failed extortion attempt not a crime because the extortionist bungled it? Or is extortion a crime regardless of success?

            1. Agree here. Failed extortion is still extortion.

              1. Extortion is not the problem. We routinely demand that foreign countries do things we want as a quid pro quo for getting foreign aid. The problem is that Trump has pretty obviously violated 52 US Code 30121, Subsection (a) Subparagraph 2.

                And speaking of quid pro quo, have you ever wondered what Mozart would say about this issue? Most likely, he’d say this:

                https://www.youtube.com/watch?v=fV4IKJHyZ1E&t=2m29s

                1. Extortion is about getting people to do things against their own best interest. A lot of the “quid pro quos” we’ve heard Trump fans shrieking about lately, like Biden pressuring them to sack an inept prosecutor, were for their own good. Similarly, hostage negotiators are not guilty of extortion. Over-generalising can sometimes obscure significant differences of fact.

          2. Just finished researching it. Extortion is a crime, whether the pressure works or not. It was a common law crime in England and has been codified more broadly here. See, e.g., Evans v. U.S., 504 U.S. 256, 269-270. (1992). At common law, extortion could only be committed by public officials who withheld or threatened official acts to obtain favors…oh-oh. So, for originalists, it is definitively within the meaning of “high crimes and misdemeanors.”
            In some states it is called “intimidation.” It is not a tort in most states or under the Restatement, but equity will return the money if the victim pays, and that is simply because the payment is considered involuntary and under coercion/duress. Unsuccessful extortionate conduct could be a tort if it is outrageous enough to constitute intentional infliction of emotional distress. Otherwise, it is just a crime.

          3. So Moderation….what did Ukraine actually do against their will that benefited POTUS Trump? Don’t you need that for extortion?

            No. Trumpkins really need to stop relying on the Sideshow Bob defense.

      1. TO: Atlas_Shrugged

        RE: “Guilty of what, exactly?”

        Well, for starters, of violating 52 US Code 30121, Subsection (a) Subparagraph 2.

        (At least, that’s how I understand what I have been reading.)

    2. Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent, Donald Trump and to then pass this bogus report into the highest levels of the US government to provoke a fake investigation.

      If it were not for double standards, the Left would have no standards at all.

      1. Donald Trump could have paid for an investigation of Hunter Biden connections in Ukraine. But he didn’t, he tried to strongarm Ukraine to help him. One standard here.

      2. Hillary Clinton was not the president, and she most definitely did not try to extort Ukraine by holding back millions of dollars in exchange for dirt. See the difference?

        1. Ya know, that part about trading United States government favor for private gain is kinda relevant too…..

      3. Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent, Donald Trump and to then pass this bogus report into the highest levels of the US government to provoke a fake investigation.

        Hillary Clinton paid Fusion GPS, an American company, to dig up dirt on her political opponent. This is not scandalous; every politician in a competitive race ever has paid an opposition research firm to dig up dirt on his/her political opponent.

        This is also utterly unlike abusing the office of the presidency by extorting a foreign country using taxpayer money to help one’s campaign.

  10. For all the arguments here, no one is arguing that Steven Calabresi’s argument holds any water, right?

    Argue moral principle all you want, but this conservative jurist, for all his respect and intelligence, posted something immediately and ridiculously legally incorrect. Whether he was in good faith or bad I cannot say (I’d tend towards Post’s good faith interpretation over Bernard’s bad faith myself), but that’s a helluva thing.

    It fits into my general narrative about the right leaving facts behind, but this is such a departure that I’m tempted to view this more as an outlier than anything else.

    1. His argument is absolutely right. And right for the reasons I state below. I am sorry but we have due process and the right to confront witnesses every time the government is going to take away a right. It isn’t just if they are going to send you to jail. Due process is bigger than that. The founders understood that the world is filled with fanatical, vicious half wits like yourself and took that into account in drafting the document.

      1. The Sixth has never applied to noncriminal trials. You’re going well beyond the Founders here, no?

        1. Yes it does. It does so in the form of due process being required. The 6th Amendment and specifically the right to confront your accuser is one of the basis for all due process. So every time due process applies, the concepts found in the 6th Amendment apply as well, though in the form of due process.

          1. “concepts found in the 6th Amendment ”

            Exactly.

            1. “concepts found in the 6th Amendment” sounds like a Kennedy opinion Bob. You should be ashamed.

              But regardless, concepts found is not the argument that Steven Calabresi is making.

              1. “sounds like a Kennedy opinion ”

                So? Such opinions used to be ok with you.

                “concepts found is not the argument that Steven Calabresi is making”

                We are fleshing it out for him.

                1. I’ve alway been quite outspoken that I have never liked Kennedy’s opinions. Muddy jurisprudence doesn’t help even when the findings come out I my side.

          2. You don’t break the 6th whenever you don’t apply proper due process, you break the 5th.

            1. Not to mention that due process applies only to deprivations of life, liberty, or property. If impeached and convicted, Trump won’t be executed or imprisoned. He will lose his job, and he has no property interest in it.

              1. We are not giving the person 63 million Americans voting for due process.

                Please go with that.

                1. Give it up. Due process is satisfied by an opportunity to be heard prior to any deprivation. There has been no deprivation, so coming public hearings easily satisfy that. The transcripts are available, relevant witnesses may be called, and witnesses cross-examined. Sometimes even post-deprivation hearings are sufficient. Either you don’t understand due process jurisprudence, or you don’t care to. Calabresi has lost any credibility as a legal analyst, and from now on he will only be correct by fortuity. A shame that he has decided to trash his reputation in service to partisanship or ambition for a judicial appointment.

              2. Is emoluments a “property interest?”

              3. The president has a four year term of office, and removal mid-term can be only for cause. Sounds like a property interest to me. OTOH, what process is due (over and above oath or affirmation, a trial presided over by the Chief Justice, and a two-thirds threshold for conviction) is largely up to the House at the charging stage and the Senate at trial.

              4. RE: “If impeached and convicted, Trump won’t be executed or imprisoned.”

                He won’t? Not even if I smile when I ask, and say “pretty please”?

      2. John, there is no right to be president, not even after you have been elected. The president serves at the pleasure of the People, who can remove the president from office at any time. That is what the impeachment power is about.

        The People are sovereign. Which means, they rule at pleasure, their power is boundless, and it applies continuously. It also means that the Constitution, which is their creation, constrains the government, but not the sovereign People themselves, not even a little.

        1. I see what you did there. Nice.

    2. For all the arguments here, no one is arguing that Steven Calabresi’s argument holds any water, right?

      It’s so embarrassingly incompetent, both as a matter of writing and as a matter of legal argument, that there is a lot of speculation that he didn’t write it at all.

      It is, after all, common practice nowadays for lobbyists for interest groups to ghostwrite op/eds, get someone prestigious to sign their name, and then plant those pieces in various outlets.

  11. Unfortunately, Mr. Post’s general ignorance of the legal system is lacking.

    First, there is no case on point that the President lacks a 6th Amendment right to confront his accusers in the context of an impeachment investigation. Therefore, it is wrong to say the President definitely lacks such a right (it would also be wrong to say that the President definitely has such a right).

    Second, Mr. Post does not appear to understand that there are different clauses in the 6th amendment. The 6th amendment includes, for example, the right to a speedy trial, the right to an impartial jury, certain jurisdictional rules, the right to counsel, etc. Mr. Post has not shown that the standard for a “criminal offense” is consistent across all of these clauses (because they’re not). For his various “exceptions” to the 6th Amendment he cites to cases touching on various different clauses.

    Third, and perhaps most importantly, Mr. Post does not understand that impeachment is a political – as opposed to a judicial – remedy. The judiciary does not have plenary authority to decide whether actions are consistent with the U.S. Constitution.

    Mr. Post may be given for the final belief as it is unfortunately common among those with a legal education.

    1. He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen.

      You can’t even fire someone from a government job or take their welfare benefits without giving them due process. You sure as hell can’t take away their elected office and ban them from holding office without some measure of due process. Moreover, the Impeachment clause use of the term “trial” and the requirement that the President only be removed from office for “high crimes and misdemeanors” necessarily implies some level of due process. Otherwise, why would the drafters use the term trial? And only allowed removal for the commission of a crime?

      So the question is what level of due process is owed? The right to confront one’s accusers is about as basic and long standing a right in the Anglo American system as their is. If there is a more basic right of due process than to be able to confront your accusers I am at a loss to think of what it would be.

      Yes, the Senate and the House get to define what due process that President gets. And if they fail to provide him with any, it is difficult to see what redress he would have. The fact that the Congress can get away with something doesn’t mean they have the legal right to do it. Clearly, the Congress owes the President basic due process in this and that necessarily includes the right to confront the witnesses against him.

      It is pathetic that so many people who claim to be legal scholars need to be reminded of this. And Mr. Post has proven himself a first class hack for being in that group.

      1. He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen. . . . It is pathetic that so many people who claim to be legal scholars need to be reminded of this.”

        Greetings, newcomer (and ostensible legal scholar) from a world in which impeachment and conviction are indistinguishable.

        1. That is a completely nonsensical response. A criminal trial and conviction are in one sense two different things. That, however, says nothing about the need to respect due process in conducting that trial and the process that leads up to any conviction.

          Please do me a favor and only comment when you understand what is going on. People are trying to have a serious discussion here and your oddball injections into them makes that more difficult.

      2. Jubulent: More nonsense. I did NOT say that Trump can be denied due process in this proceeding – he can’t. But Calabresi’s post made a very specific claim: that Trump’s rights under the 6th Amendment have been violated. That is, quite simply, wrong as a matter of constitutional law. What due process might entail is another question entirely.
        And you write: “Second, Mr. Post does not appear to understand that there are different clauses in the 6th amendment. The 6th amendment includes, for example, the right to a speedy trial, the right to an impartial jury, certain jurisdictional rules, the right to counsel, etc. Mr. Post has not shown that the standard for a “criminal offense” is consistent across all of these clauses (because they’re not).”
        Please read the text of the 6th Amendment. It begins: “In all criminal prosecutions, the accused shall enjoy the right to …” and then it lists the various rights. But this can only be read in one way: ALL OF THE ENUMERATED RIGHTS apply in “criminal prosecutions” to “the accused.” If you have something (like impeachment) that is NOT a criminal prosecution, the Amendment is silent. Full stop, period.
        As for who is demonstrating “general ignorance of the legal system,” I’ll leave that to others to decide.

        1. If you admit that Trump has due process rights, from where would those rights come if not the Bill of Rights? If your argument is that Trump has the right to confront witnesses but that it doesn’t come from the 6th Amendment, that would seem to me to be an argument without any real force or effect and just be about mere semantics.

          1. Due process comes from the 14th and 5th. Not the 6th.

          2. “from where would those rights come if not the Bill of Rights”

            From God.

            Or from Nature if you are Jeffersonian.

            1. And when government violates those rights, you look to God or Nature to vindicate them for you, right?

        2. Why isn’t the House following precedent? You know Nixon, Clinton.

          1. Did Clinton follow Nixon?
            Is the House bound by last precedent?

            But the real answer is as the House said: to keep witnesses from lying convincingly, since they can’t see if others have contradicted them.

            Trumps people are expected lie more than Nixon or Clinton’s. Even under oath.

            One guy had to refresh his memory and do a humiliating 180 already.

            1. “Is the House bound by last precedent?”

              Maybe not, but by deviating they gave Trump supporters another good argument.

              1. “Another argument” should not be confused with “another good argument.” Those are two different things, Bob.

          2. They followed the Benghazi precedent written into the rules for investigations by the GOP. So why wasn’t the chant “leave her alone” instead of “lock her up”? You can arrest a person, search them, and seize their possessions on probable cause which may be established in a proper case by an anonymous tip and certainly one from a CI found to be credible. Investigating on that basis is not a due process violation. Due process is only required at some time prior to the deprivation. The defendant gets to cross-examine the witness at trial, not when the investigator takes a sworn statement from the witness. When you report a crime, the cops should say “wait here until we find the alleged perp and let him cross-examine you–its his due process right”? How ridiculous do you want to look?

      3. One wonders if the Senate could decide that it would not begin an impeachment trial unless the impeachment proceedings in the House gave the President all of the rights he would have had in a criminal trial.

        1. I would say they absolutely could. The Senate has the power to try whatever Articles of Impeachment the House votes out. As the trier of fact, the Senate necessarily has final say on the sufficiency of any Impeachment allegations against the President. They could just declare the Articles defective and send them back to the House in the same way a trial judge declares an indictment defective before trial.

      4. John, impeachment is not removal. It does not “remove[] someone from office they lawfully hold”

      5. You can’t even fire someone from a government job or take their welfare benefits without giving them due process.

        False. When Trump fired Rex Tillerson, or Jeff Sessions, or John Bolton, or John Kelly, or Jim Comey, or Michael Flynn, or Anthony Scaramucci, or any one of scores of other people from their government jobs because Trump is too incompetent to run an administration, what due process did they get?

      6. Article 1 of the Constitution: “Each House may determine the Rules of its Proceedings”. Nothing about having to observe certain rules in serving articles of impeachment. This is basic constitutional law.

    2. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

      FFS it’s in the text.

    3. First, there is no case on point that the President lacks a 6th Amendment right to confront his accusers in the context of an impeachment investigation. Therefore, it is wrong to say the President definitely lacks such a right

      My flippant response is to say that this is the equivalent of arguing that there is no case on point that the president lacks a 3rd amendment right to free sushi in the context of an impeachment investigation, so therefore it is wrong to say that the president definitively lacks such a right.

      My serious response is to say that jubulent is simply ignorant of the caselaw.

  12. So. Could some one tell me why the House is not following precedent where 6th Amendment issues were controlling (or at least important) at this stage.

    1. I’m quite sure the Sixth was not cited as controlling either of those past impeachments.

      1. The 6th was not cited. If you look at the way things were done, it was in effect.

    2. Sure: you’re mistaken. You’ve been misled by talk radio or MAGA twitter. That didn’t happen.

  13. Trump is being charged with a high crime, today Democrats are suggesting Ukrainian bribery. That sounds like a criminal trial to me.

    1. Jesus, where did this get linked?

      Criminal or not is not defined by magic words.

      1. It is a good thing bribery is not a criminal act then.

        1. MSimon,

          WTF are you trying to say?

          Bribery is a crime.

          The fact that Trump has been alleged to have attempted to bribe/extort Ukraine and will likely be impeached on those grounds, does not make anything currently happening a criminal trial. The trial in the Senate will also not be a criminal trial as, among other things, there is no danger of imprisonment. Imprisonment would require an actual criminal trial after Trump’s removal from office. That the articles of impeachment may include allegations of a crime does not make this a criminal trial. If Trump did shoot someone on 5th Avenue and was impeached for murder, the Senate trial to remove him from office would still not be a criminal trial.

    2. The impeachment is the charge. Trump hasn’t yet been charged. If and when the House formally charges the President via impeachment, then the trial will be held in the Senate.

      This really isn’t that hard to understand.

  14. I find it disappointing how quickly the discussion in this forum dissolves into politics and irrelevancy. The question at hand is whether the process the House is now engaged in is in violation of the 6th Amendment, not whether Trump is guilty of whatever. Post contends that the 6th does not apply because it concerns only criminal proceedings. This seems incorrect to me. Surely, however, he is correct that the House impeachment inquiry, if that is what it is, is not a criminal procedure as commonly defined. Nevertheless, the Constitution says that impeachment should be undertaken when the President has committed high crimes and misdemeanors — which are criminal terms, am I right? But the House is not the judge or the jury, only a form of prosecutor. It’s silly to suggest that it is a grand jury, because the members of the committee involved in the investigation will vote on the floor, so they are not empaneled impartial jurors. It’s political committee, performing a mix of judicial and political functions. What rules should apply? One can say, as the Democrats do today, whatever rules we can get away with. But that flies in the face of tradition and, I think, law. The House is also bound by the Constitution, and the members have sworn an oath to uphold the Constitution. So, back to the point, does the 6th apply? If it’s not high crimes and misdemeanors, i.e., criminal, is it then a civil violation? Well, an accused has rights under civil procedures too, non-judicial or judicial, including Notice, Hearing, Impartial Tribunal, Confrontation and Cross-examination, Discovery, Decision on the Record, and Counsel (copied from the Legal Information Institute). The rights awarded under a civil procedure seem awfully close to what is granted under a criminal procedure, guaranteed by the 6th Amendment. And, further, the language of the Fourteenth Amendment requires the provision of due process when an interest in one’s “life, liberty or property” is threatened. It would be difficult to state that the current House proceedings do not threaten the President’s interests, broadly understood as liberty and property. In fact, it would be offensive to state that he has no interest in the proceedings. So, it would seem that the 14th Amendment provides protection for him — and the 14th, as we know, incorporates the entire Bill of Rights, at least against the States. But does it also bind the House? Well, back to the oath they take when they become members — to uphold the Constitution etc. etc. Does that mean that they are bound by the 14th and the 6th Amendments? I find that a very convincing argument. They are not free to make up their own wholly political, quasi-judicial process. They are bound by the same rules that apply to all defendants, in criminal as well as civil procedures. What they are doing today is unconstitutional and shameful — and I take absolutely no stance on whether the President was wrong in his conversation with the Ukrainian folks. That should be totally beside the point for the current issue of whether the 6th applies or not.

    1. The precedents which Professor Post cites disagree with you.

    2. Maximus,

      “Post contends that the 6th does not apply because it concerns only criminal proceedings. This seems incorrect to me.”

      Read it. The 6th Amendment expressly applies to: “In all criminal prosecutions.” Not all proceedings, not all legal proceedings, not all quasi-criminal proceedings. Just criminal prosecutions.

      “If it’s not high crimes and misdemeanors, i.e., criminal, is it then a civil violation?”

      This is kind of nonsensical. That the conduct warranting removal may include crimes does not transform the proceedings into a criminal prosecution, for all the reasons Post states. It is an impeachment and trial in the Senate for removal. It is not a criminal prosecution or a civil proceeding. It is a something else specified in the Constitution.

      “Notice, Hearing, Impartial Tribunal, Confrontation and Cross-examination, Discovery, Decision on the Record, and Counsel (copied from the Legal Information Institute).” Yeah, that’s once formal charges (or a civil lawsuit) have been filed. The House is currently conducting an investigation, not a trial. They will eventually vote on whether to impeach (presumably) and then the President will be formally charged. He will receive notice, a hearing, a tribunal (composed of Senators, so cannot possibly be impartial but that is expressly contemplated by the Constitution), there will be confrontation and cross-examination of witnesses, a decision on the record, and counsel. I doubt there is formal discovery, but Trump will know the identity of all the witnesses and have access to all of the documents used in the Senate trial. What is your process objection? That we should treat this as two trials, one in the House and one in the Senate? But that just isn’t what the Constitution says. E.g., “The Senate shall have the sole Power to try all Impeachments.”

      In short, you seem to misunderstand what is happening. The House is currently investigating. They may eventually charge. The Senate will conduct the trial where the issue of the protections you discuss would be relevant. In the House, while there undoubtedly are some due process concerns, they don’t involve cross-examining witnesses during an investigation. Criminals don’t have that right nor do civil litigants. It is only once official charges are lodged or, in the civil context, an actual lawsuit is initiated that the accused begin to have the rights you are arguing apply here. The articles of impeachment are the charges. Until that happens, this isn’t a trial. It is an investigation and grand jury-like proceeding.

    3. You say: “they are not free to make up their wholly political, quasi-judicial process”. The Constitution says: “Each House may determine the Rules of its Proceedings”. Checkmate!

    4. PS the word “interest” does not appear in the 14th amendment. So your rhetorical footwork about him having an “interest in the proceedings” is completely irrelevant. You also make a false dichotomy of assuming that all proceedings are either civil or criminal, when the whole point of impeachment is due to the fact that the President is in a highly anomalous position as head of the DoJ, and (as others have pointed out) he can’t be fined, executed or imprisoned as a result of impeachment.

  15. Former copy-editor and proofreader suggests:

    In the phrase: “…but Mr. Trump is not a “criminal defendant” in the impeachment proceedings,… “, strike “in the impeachment proceedings” and replace with “yet”.

    Brevity is the soul of wit, you know.

  16. Good lord, people are defending the op-ed.

    I don’t know what I was expecting.

    At least it seems to largely be new people who have wandered in from somewhere.

    And Bob.

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Today in Supreme Court History

Today in Supreme Court History: November 12, 1975

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11/12/1975: Justice William O. Douglas resigns.

Justice William O. Douglas

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  1. Douglas made his name as a trustbuster at the end of FDR’s second term. He clearly had his eye on the White House, so Roosevelt, who didn’t like men with a lean and hungry look, appointed him to the Supreme Court, an offer Douglas couldn’t quite turn down. (Roosevelt did the same thing with James Byrnes, who eventually resigned from the Court because he found it too boring.) According to Ronald Radosh’s famous book on the Rosenbergs, Douglas, though aggressively “left”, was also strongly anti-communist, and for a long time refused to intervene in the Rosenberg case because he felt the communist party wanted the Rosenbergs to be martyrs, and the party’s whole legal strategy was to accomplish that goal. Later, according to Radosh, he changed his mind, but the rest of the Court, except (unsurprisingly) Frankfurter, the lone Jew on the Court, “rammed through” the Rosenbergs’ execution in collusion with Attorney General Brownell.

  2. Probably the most inept legal mind ever to sit on the Court. No justice ever cared less about doctrine, or giving plausible guidance to lower courts, lawyers, and clients, or creating rules that would be workable, than Douglas.

    1. At the time Roosevelt appointed him he wanted results not reasons, and he got what he wanted.

  3. He would have resigned right after his stroke but the Congressman who had tried to impeach him (Gerald Ford) was now President and would pick his successor.

    As for his opinions, he was considered left wing, but most Americans now agree with them.

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DACA

Why DACA Is Legal

The Trump administration's justification for rescinding DACA relies heavily on the claim that the program is illegal. But it's not.

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Tomorrow, the Supreme Court will hear three consolidated cases challenging the Trump administration's decision to rescind DACA, an Obama administration policy suspending deportation of some 800,000 undocumented immigrants who came to the United States as children. DACA allows such migrants (often referred to as "dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the  country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces.

As co-blogger Josh Blackman (a longtime critic of the legality of DACA) points out, the Trump administration's position in these cases relies heavily on the notion that DACA had to be rescinded because it is itself illegal. For political reasons, the president did not want to  give the impression that he actually favors deporting the Dreamers (which would be an extremely unpopular position). Thus, he decided to hide behind the theory that his hands are tied by legal considerations. As Josh recognizes with admirable candor, this framing of the issue makes the administration's policy "nearly impossible to defend." I agree, with one slight modification: If this really is the only justification, I would strike out the "nearly" in that sentence.

While the president's motives for relying on this argument were probably political, I don't doubt that many conservatives, including some administration officials, sincerely believe that DACA is illegal. But, regardless of the reasons for putting it forward, the claim that DACA is illegal is badly wrong. I summarized the reasons why in a 2017 post from which much of what follows is adapted:

Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.

Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.

That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn't worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms.

John Yoo contends that there is a difference between using "prosecutorial discretion" to "choose priorities and prosecute cases that are the most important" and "refusing to enforce laws because of disagreements over policy." But that distinction makes little sense. Policy considerations are inevitably among the criteria by which presidents and prosecutors "choose priorities" and decide which cases are "the most important."

One reason the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. It did not even do that during the reign of Attorney General Jeff Sessions, the hard-core drug warrior who also initiated the rescission of DACA on the grounds that the program exceeds the bounds of executive discretion.

Yoo and others also argue that prosecutorial discretion does not allow the president to refuse to enforce an "entire law," as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of undocumented migrants do not meet.

Most of the points I made in this 2016 article defending the legality of Obama's later DAPA policy (which was rescinded by Trump in June 2017) also apply with even greater force to DACA, since the latter is a much more limited program. Wide-ranging presidential enforcement discretion is unavoidable in a system where there is so much federal law and so many violators that the executive can only target a small fraction of them. In the 2016 article, I explain why presidents have the power to exercise their discretion systematically as well as on a "case-by-case" basis.

Systematic exercise of discretion by the president should be particularly attractive to conservative believers in "unitary executive" theory, which holds that the president should have nearly unlimited authority to set policy priorities for his subordinates in the executive branch. Often, issuing systematic instructions may be the only way for the president to exercise effective control over the sprawling executive law-enforcement apparatus and ensure that it is following his policy priorities.

I myself have growing doubts about the validity of unitary-executive theory. In my view, Congress should, at least in many instances, be able to constrain presidential control over executive officials. But even if that is true, Congress has not in fact adopted any laws requiring the president to prioritize deportation of the "Dreamers" over other law-enforcement goals, or forbidding him from issuing categorical instructions giving absolute priority to other objectives.

The Trump administration and other DACA critics claim that the policy goes beyond enforcement discretion, because it offers "affirmative benefits" to recipients, such as the right to work legally in the United States, and accrue "lawful presence" time in the US. But the policy of giving DACA recipients work permits actually does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are "authorized … to be employed … by the attorney general."

The grant of "lawful presence" to the immigrants covered by DACA is perhaps the most questionable part of the policy. But while this may seem like a big deal, in reality "lawful presence" does not actually legalize the presence of any otherwise illegal migrants. For the most part, it merely reiterates the executive's discretionary decision not to deport the migrants covered by the order.

It does, however, also allow them to accrue time for the receipt of Social Security and Medicare benefits that, however, they are unlikely to ever actually collect unless their status is genuinely legalized at some point in the future, and they remain in the US until after retirement age.

Moreover, the "lawful presence" element of DACA  could easily have been excised separately, without affecting the other, far more important aspects of the policy. If "affirmative benefits" were the true target of Trump and Jeff Sessions' ire, they could easily have taken this approach. But they instead chose to rescind the entire program.

The fact that DACA is an exercise of executive enforcement discretion also undermines Josh Blackman and Ilya Shapiro's creative arguments that it is illegal under "non-delegation" principles, or because it attempts to resolve a "major question" that Congress would not have left to executive determination.

Like Josh and the "other" Ilya (see my handy guide to distinguishing the two of us), I believe the Supreme Court should do more to enforce the "non-delegation" doctrine, which prevents Congress from engaging in excessive delegation of legislative authority to the president. But enforcement discretion is not a legislative power. It's an inherent power of the executive itself. Thus, there is no delegation involved, and therefore no reason to worry that too much power has been delegated.

The same point applies to the "major question" canon, which holds that courts should not interpret federal laws to leave to the executive important decisions about the scope of what is or is not banned by the statute in questoin. The "major questions" at issue are questions about what sort of conduct is legal under the statute, not which lawbreakers will be prosecuted and which let off the hook by enforcement discretion.

Under the doctrine, the executive is denied the power to decide "major questions" about the meaning of a law. But DACA does not do that. It concerns enforcement priorities as between different violators of a specific federal law. It does not offer any new theory about the meaning of that law, much less resolve any "major question" about that meaning.

The extent of presidential discretion over law enforcement revealed by DACA does raise troubling issues. In a world where federal law is so extensive that not only undocumented immigrants, but most native-born Americans, have violated federal law at one time or another, the executive's ability to pick and choose which of the many lawbreakers to go after is a menace to the rule of law.

But that menace won't be ended by getting rid of DACA. Doing so will merely shift the discretion in question to lower-level officials, not eliminate it. The only effective way to truly deal with the problem of excessive executive law-enforcement discretion is to cut back on the immense extent of federal law itself.

The Trump administration could prevail in the DACA cases even if the program is not illegal. The Supreme Court might conclude that Trump still has the authority to repeal the program purely on policy grounds. But that option is, at the very least, made more difficult by the administration's failure to present a policy rationale, except at the eleventh hour. Even now, the administration still hasn't put forward a theory of why it's actually a good idea to subject DACA recipients to deportation, as opposed to claiming that rescinding DACA is desirable for such ancillary reasons as "sending a message" that laws will be enforced. That rationale that could justify pretty much any decision, since virtually any policy could be interpreted as "sending a message" to some group or other.

The Court could also rule that decisions to rescind a enforcement policy are inherently unreviewable, and that therefore the administration can essentially do whatever it wants in this area. But doing so could set a dangerous precedent for future abuses of executive power.

The justices could even conclude that the argument that DACA is illegal is "good enough for government work," even if it is badly wrong. It could perhaps still be enough to pass muster under the Administrative Procedure Act, the law under which the DACA cases are being litigated. I will leave this and other APA-related issues to commentators with greater relevant administrative law expertise.

It is, therefore, entirely possible that the Court will find a way to rule in favor of Trump without ruling that DACA is illegal. Nonetheless, the administration has put a lot of its eggs in the "DACA is illegal" basket, even if not quite all of them. Those eggs richly deserve to be crushed.

NOTE: This post addresses only a key legal issue at stake in the DACA cases. I considered the moral and policy questions raised by DACA here. It is telling that those issues are sufficiently one-sided that even an administration as deeply hostile to most immigration (including legal immigration) as this one wants to avoid looking like it actually wants to deport the "dreamers."

 

 

 

 

 

 

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  1. Trump should use the same rationale to declare non-enforcement of every other federal law that his base doesn’t like. And beneficial selective enforcement of the rest.

    1. You say this like it isn’t already what he’s doing.

      1. I’m kind of missing the law that he’s set up a formal program to systematically fail to enforce. Could you point it out?

        1. How would you characterize his (illegal) tariffs and the associated exemption program he’s running?

          That’s just one example of his systematically electing not to enforce the law that just happens to fit the arbitrary conditions you’ve articulated here. There are lots of other laws that he’s treating as dead letters or choosing to enforce only selectively – which is what Ben was suggesting Trump should try doing. Remember the Hatch Act? His selective enforcement of antitrust laws against perceived political opponents? Withholding military aid to Ukraine in order to pursue unrelated priorities? It just goes on and on with this guy.

          1. You’re just listing random things and calling them non-enforcement. That’s not very good storytelling.

            You need to add some innuendo about “I wonder what favors they got in exchange…?” And then project some dumb cost estimate out to the year 2100 so you can hyperventilate about how big the number is.

            That’s how Dems do it. Try harder.

            1. It’s really depressing to me how many people will giggle over his lawbreaking just because they think it’s pwning the libs.

              1. A bad policy done legally (blame Congress for the monstrosity) is better than a bad policy done illegally.

                Congress can always end the tariffs.

                1. How would you suggest they do so? By clarifying that “national emergencies” do not include the need to pressure other countries to agree to weak-sauce deals so that Trump has something to campaign on?

              2. “Lawbreaking” is an important part of the story. He wouldn’t be Voldemort without it.

                I guess we should all be obsessed NPC types making up new little stories in our heads all the time. About (gasp) lawbreaking or whatever else. And then deciding to believe them and getting even more obsessed, even more disconnected from the day to day reality.

                In the day to day reality, politicians aren’t what matters. It’s a nice day. Try not to be so absorbed in your unhealthy personal obsessions.

          2. You really think that, if you investigated it, you wouldn’t find he has a statutory basis for his actions? I mean, just because you don’t like it, doesn’t mean he’s doing it illegally.

            1. Obama had just as much statutory basis to implement DACA as Trump has to impose steel/auto tariffs, reallocate military spending, or suspend military aid to Ukraine.

              No statutory basis to ignore the Hatch Act, withhold his tax returns from Congress, or prevent the whistleblower complaint from going to Congress – but who’s counting, eh?

              1. The only statutory basis Obama had for DACA was Congress refusing to enact a statute. Less than zero basis, IOW.

                As far as imposing tariffs, reallocating military spending, and putting a hold on that military aid?

                You’re wrong.

                The tariffs were under Section 232 of the Trade Expansion Act of 1962.

                Reallocating military spending was under the National Emergencies Act.

                As for the Ukrainian aid holdup, haven’t researched that one yet, but I’m expecting that it’s equally based in statutory authority.

                1. The only statutory basis Obama had for DACA was Congress refusing to enact a statute. Less than zero basis, IOW.
                  Brett, you know better than this.

                  1. It was literally a discretionary decision to NOT enforce statutory law. That’s the opposite of having a statutory basis.

                    Sure, it was implemented by agencies created by statute.

                    1. Discretion is applied in specific cases. It’s what permits a cop to NOT write you a ticket when you’re speeding.

                      But a cop who just says, “I’m not enforcing any laws against rape, murder, robbery – because I don’t feel like it” is not doing his job.

                      The preamble to Obozo’s unconstitutional action on DACA was multiple instances of Obozo declaring, “I can’t legally do that!”
                      Probably the ONLY thing he was right about in his entire presidency.

                2. Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.

                  Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.

                  I had hoped for at least a fig leaf of legal reasoning here – but I find none.
                  Suffice to say that if Obozo could just get away with refusing to enforce laws, then Trump can do the same. Let’s start with welfare. Yes, it’s a law. Yes the money is allocated. No, it’s not going to be distributed any more because that’s a law that Trump decides not to enforce.
                  Or how about shooting criminal aliens at the border. Yes, the law says you’re supposed to treat them as criminals, not enemy combatants – but hey! Trump doesn’t have to obey the law, so set up the machine guns and turn all those criminals into hamburger.

                  Can you think of any other area where Trump could just decide not to enforce the law? I can. How about money being sent to liberal states? It’s allocated – but what if he just refuses to spend it?

      2. What story are you guys making up now? I haven’t heard this one yet.

        1. I’m not surprised, you guys have chosen to just tune most of the facts out.

      3. Oh? Is he directing the ATF to allow post-1986 machine guns to be registered? Is he directing NICS to pass people under 21 for handgun purchases?

    2. He should absolutely do that, if he loses this case. Call it “MAGA” instead of “DACA”, and waive enforcement of some law really stupid law that’s popular with the left, such as the one barring ownership of newly manufactured silencers.

      1. Not a rhetorical question. Which laws did you have in mind?

        DACA seemed like an obvious candidate for the left since it is wildly popular and doesn’t have a natural anti-constituency. (Even Republicans overwhelmingly support not punishing children who were brought into the country illegally by their parents.) Is there an example of a federal law that democratic and republican constituencies the country over oppose, but that Democratic political leadership (or a majority of them) supports and wants enforced? (With the understanding that there are some prominent Republican political leaders who do support DACA.)

        1. Not rhetorical answer: The prohibition on ownership of suppressors.

          They don’t lower the noise level of firearms to theatrical levels, they just get it below the point of acute hearing damage. Not enforcing that law could be easily justified as a public health measure.

          In some countries, using them is mandatory for that reason, not prohibited!

          Anti-gunners seem to want to retain the prohibition on the basis that, if they can’t keep people from owning guns, they can at least hope for them to go deaf.

          1. I don’t know many people (left or right) who would get worked up about the President refusing to enforce the non-ban on silencers. But I think it’s unlikely that he does so, since he’s stated skepticism publicly about silencers/suppressors.

    3. Obozo repeatedly said he didn’t have the Constitutional authority to create DACA. He was right about that.

      Then he did it anyway.

      When a president takes executive action, there’s no reason the next president can’t take executive action to REVERSE the prior administration’s actions. To do so is to handcuff the administration.

      Ironically, if one argues that DACA is constitutional and can’t be overturned, then one must also argue that Trump can take whatever action he wishes to take and future administrations are bound by that action in perpetuity.

      DACA is unconstitutional (maybe the only thing Obozo ever got right) and Trump should be able to kill it today and begin deporting Dreamers tomorrow.

  2. Deporting Dreamers is morally wrong.

    Some things are unclear: (1) If DACA is an exercise of prosecutorial discretion, what stops Trump from exercising that discretion differently? I.e. why does one administration’s choice on discretion bind the next one? (2) Could Trump’s EPA grant systematic exemptions from environmental laws or safety regulations?

    1. Trump can, if he abides by the APA.

      But as noted in the first paragraph of the OP, Trump’s reasoning is not an easy road to that end.

      As for 2) they already do, when permitted by law. A lot.

      1. 2) “When permitted by law”. Key words there.

        But there isn’t a blanket statement that says “Ehh….not gonna enforce it at all”.

        1. The OP lays out why DACA is permitted by law as well.

          1. Yes, but not in a way that’s persuasive. It basically boils down to, “The President doesn’t have to enforce every single law in every single case, and DACA is just an instance of failing to enforce the law in every single case.”

            And blows off that it’s an instance of setting up a formal program to systematically fail to enforce a law, complete with levying fees and spending the resulting money without statutory authorization.

            Like anybody thinks this is a general proposition Somin would agree to if he didn’t like the program in question. Like others have said: Suppose Trump up and decided it was good policy to systematically waive enforcement of some law Somin likes? How about waiving enforcement of federal laws against kidnapping, where the victim is present in the US illegally, and just charging a license fee for doing it? Set up a whole system of immigration enforcement bounty hunters?

            How is this different legally? Because kidnapping laws are good, and immigration laws aren’t? That’s not a legal argument.

            1. “And blows off that it’s an instance of setting up a formal program to systematically fail to enforce a law, complete with levying fees and spending the resulting money without statutory authorization.”

              Is it your position that DACA is unlawful entirely because of the fee and spending provisions? Or do you think those can be severed? If they were severed, would you agree that DACA is a lawful exercise of presidential discretion? If not, why bring them up at all?

              “How is this different legally?”

              You can say that about any prosecutorial discretion decision. Jaywalking and murder are both illegal. They are not different, legally. Are you arguing against prosecutorial discretion categorically? Do you the President Trump’s EO 13782 is unlawful?

              If President Trump merely granted pardon for every person convicted of [federal law of your choosing] are you saying that would be an unconstitutional use of the President’s pardon power?

              1. It’s my position that DACA is illegal because of the systematic nature of the refusal to enforce the law. It represents a failure of the President to fulfill his constitutional duty to “take care” that the law be faithfully executed.

                Systematic refusal to enforce is not faithful execution, it is its opposite.

                The extra-legal fees and expenditures are just the cherry on top, that can’t even be justified by Somin’s reasoning.

                1. “It’s my position that DACA is illegal because of the systematic nature of the refusal to enforce the law.”

                  As the author noted not enforcing laws is not that unusual. The author used the case of drug use in college dorms. Another example would be automobile speed laws. Most people understand that there is a grace provision and you can go 75 mph in a zone set at 70.
                  Finally I would not this is not a refusal to enforce the law but rather a prioritization. We deport the dreamers after we get every other undocumented person deported, or essentially never.

                  1. “Most people understand that there is a grace provision and you can go 75 mph in a zone set at 70.”

                    And some people understand that going 60 in a zone set at 70 can precipitate stops for ‘driving while black’ or ‘driving while Hispanic.’

                  2. So, let’s run with your speeding example. Speeding is illegal. It’s not broadly enforced, except in extreme examples, but it can be.

                    Now, envision a concept where instead of speeding being illegal, but not broadly enforced, instead the governor says “Speeding isn’t illegal, and we will not prosecute anyone who isn’t speeding more than 10 miles an hour over the limit. Ever.”. Furthermore, a program is put in place, where people can pay a small fee, and be invunernable from any speeding tickets. Then those who pay the fee get special lane access, and discounted, free gas from the government, to enable further speeding.

                    Would all that be OK? No. Because it would further enable speeding and actually encourage it. It would also be the executive branch essentially making new laws, rather than just not enforcing current ones.

              2. On the pardon issue, he explicitly could do that, and it would be a great basis for an impeachment, but would be fully legal.

                Because the Constitution actually gives him that power, just as it actually obligates him to see the law faithfully executed.

                1. Back to your hyper formalism, what’s the legal difference between having a formal policy refusing to enforce a law, and categorically pardoning anyone the administration comes into contact with?

                  1. The very difference that you wrote in asking the question: One is a pardon, the other is refusing to enforce the law.

                    Is the distinction unclear to you?

                    Let’s say somebody robs a bank in D.C. (Just to make it a federal crime…) Trump could pardon them. That wouldn’t make the money their’s. They’d still have to return it. It would just mean that they wouldn’t be looking at jail time over the robbery itself.

                    Pardons don’t make acts legal, they don’t give you any protection going forward if it’s a continuing offense, or you re-offend. They cover events in the past, not the future. So the President can’t preemptively pardon you for something you haven’t done yet.

                    Illegal presence in the US is a continuing offense. Even if you pardoned it, if the person didn’t immediately exit the country, they’d be just as guilty and legally liable the next day.

                    1. The distinction is as clear to me as red and blue cars.

                      “Pardons don’t make acts legal…”

                      DACA doesn’t change what is or isn’t legal.

          2. The OP says why it might be Ok, but stumbles on why Trump can’t just reverse it using the same unitary executive reasoning to create it, other than to suggest an unpopular political hit.

            I’m for removing weasel words from politicians. Reverse it if you want, and take the hit, and let the voters decide if they like the policy change.

            1. Trump can; he’s just not following the APA to do so.

              1. Something the 0blama administration didn’t do, also.

      2. You are assuming that DACA would pass the “abides by the APA” test. But all the legal arguments in favor of it have nothing to do with the APA. They rely on the theory of prosecutorial discretion.

        I’m with Brett on this one. DACA was a right moral thing to do but the way it was done is legally indefensible. If allowed to stand, it opens up precedents that put way too much power in the hands of the Executive Branch.

        1. Then challenge DACA on that front. That the administration hasn’t done so isn’t DACA’s fault.

          1. Actually, it was challenged on that front, IIRC. It passed that judicial test.

            1. IIRC: the challenge was killed on grounds of standing, not on the merits of DACA’s compliance with the APA.

              1. Fair enough. Point is that Rossami’s argument that DACA wouldn’t pass the ACA is on shaky ground.

                Also because the Obama admin took the time to put it through the appropriate procedural hoops, which the Trump Admin is only learning to do today.

                1. 1. The claim that “the Obama admin took the time to put it through the appropriate procedural hoops” is extraordinarily shaky.
                  2. That would not be a challenge that could properly brought by a subsequent Executive administration. I’m pretty sure that’s a challenge that would have to be brought by someone outside the administration itself.

                  1. Summary judgement, courtesy of Rossami and like the Center of Immigration Studies.

                    How long did the Obama admin take to get DACA buttoned up? The DREAM Act died in November 2011, and Obama didn’t announce the initiative until July 2012. And it had been working it’s way through CIS since at least January. (https://en.wikipedia.org/wiki/Deferred_Action_for_Childhood_Arrivals#Rescission)

                    Trump, on the other hand, said he was gonna repeal it and then Sessions announced it. That looks like the sum total of the work that went into a favorable procedural record.

      3. IIRC: Obama did not comply with the ACA in enacting DACA

        1. That seems in dispute.
          Certainly the Obama admin spent some trouble building a record because they know how things get done around here.

          Anyhow, doesn’t really matter except as a tu quoque for the case at bar.

    2. (1) It doesn’t. The President is free to cancel DACA. But at least against an arbitrary and capricious challenge, it is bound by the rationale it relies on. I think the rationale the administration relied on is sufficient to defeat an arbitrary and capricious challenge–at least at SCOTUS–but it is a much closer call since it hinges on the illegality of DACA, rather than just an exercise of prosecutorial discretion.

    3. Deporting Dreamers is morally wrong.

      I reject your premise. What is morally wrong is to deliberately not enforce our laws. I know, I know…you tried to think, but failed. Take a deep breath, and try again.

      1. A president should go to Congress to officialize the change, so to speak, but lack of enforcement consequences should be the decision of the voters in the next presidential election.

        “Yes!” screams the left.

        Except environmental laws. Then the courts can order enforcement.

        You are all terrible people.

      2. Your bigotry, Atlas_Shrugged, is the most important reason you are a disaffected, vanquished casualty of American progress, destined to spend the rest of your life complying with the preferences of better Americans.

        1. I think Reverend Arthur I. Kuckland is far better than you.

          1. Of course. Curb-stomped clingers need to stick together.

            Until they are replaced, that is.

      3. MLK would have some issues with blindly enforcing all laws being the moral highground.

        So would the Neurenberg trials.

  3. Dreamers should be the first ones deported, due to their heinous entitled activism. Let the hardworking illegal immigrants stay before the dreamers. Say, what is so bad about moving anyway? Most people move these days. My friends whose parents came from Mexico spend tons of time vacationing there anyway.

    1. Dreamers should be the first ones deported, due to their heinous entitled activism
      Yeah, what evil speech. Lets chill it!

      The only way to fight becoming an authoritarian state is to become authoritarian against this outgroup. Right out of the populist strongman handbook.

      1. Yeah, except that these entitled brats have outright said that they won’t let their criminal parents be used as bargaining chips. In other words, a magnanimous act of charity from the United States to let them stay will be met with immediate demands to grant it to their non-English speaking, obese parents, which of course means more Medicaid expenditures and so forth.

      2. Selecting immigrants based on their willingness and ability to contribute to this country and embrace its values is . . . straight out of the common sense handbook.

        1. Yes, and most Latin Americans don’t qualify.

        2. Choosing immigrants based on their values is actually not out of any playbook we’ve used since that creates an arbitrary horrorshow. The point of the American Dream is that you get those values once you come here because our values are that strong.

          Regardless, protesting is actually very much in the American tradition.

          1. It was absolutely part of our playbook for most of history. Our values reflect our people, they don’t transcend it. Our values don’t turn illiterate Somali Muslims into freedom-loving Americans.

            1. This thinkig is why you’re the most unamerican individual I’ve ever crossed path with.

              1. Ask the founders, in 1789, whether they believed that Somali Muslims were just like colonists from England.

    2. Wouldn’t we be better served by putting them in gulags or reeducation centers? If we deport them they can just spread their persuasive advocacy abroad.

      1. No, I wish them and their homelands all the best, and the highest good would be for them to bring their acute senses of justice to bear in places like Mexico that are collapsing into anarchic terror.

      2. Their persuasive advocacy that the country they reside in should have an effective open borders policy? I don’t think that would be particularly persuasive in Mexico, which has extensive immigration restrictions not just on those from its south, but on all potential immigrants.

        For instance, non-Mexican citizens cannot own property in the country, leading to large areas under 99 year leases that will revert to the Mexican government along with the developments on them.

        And this from someone (me) who welcomes anyone who wants to join the American experiment and is willing to endure hardship to get here. It’s a free empirical screening on personal persistence, and those are just the sort of people I want more of.

        1. I was thinking they would go to Mexico and post on the internet (for American audiences) their persuasive advocacy that the United States relax its centrally planned immigration policy. They might even argue that unfair Mexican domestic policies makes us more compelled to accept Mexicans than less. It will be harder for them to get their message out from gulags, and we could also put them to work. Better yet, we could reeducate them and release them into the public to spread the gooder word.

    3. What better way to promote the American way of life than to send those youth back to their countries, to act as evangelist for the gospel of American values, to bring those wretches countries out of their dark ages. Dreamers have no higher calling than this.

      1. Which is not a choice we must make for them. Forced evangelism isn’t.

        1. Failing to answer this call is renouncing their claim to the American Dream.

          1. Going back home an evangelizing is not the American Dream.

            And it’s not on you to dictate to them what it is, much less force them to follow your BS call.

            1. It’s called giving back. If they’re unwilling to live this American value, can they say they’re Americans?

  4. The Court could also rule that decisions to rescind a enforcement policy are inherently unreviewable, and that therefore the administration can essentially do whatever it wants in this area. But doing so could set a dangerous precedent for future abuses of executive power.

    And ruling that the executive decisions of one administration are presumptively binding on the next opens up a whole ‘nother can of worms. We know which way that ratchet works, it’s how you wind up with the idea that the Paris Climate Accord is somehow binding on the US despite the fact that the Senate never even got a look at the thing.

    1. “And ruling that the executive decisions of one administration are presumptively binding on the next opens up a whole ‘nother can of worms.”

      That’s not the ruling.

      1. That’s not the literal ruling but I’m not seeing the distinction you’re trying to make.

        For example, could President Trump with an executive order finding that prohibiting or restricting the use of hearing protection is a willful and evil-intentioned battery on any person so prohibited, and therefor directs the FBI to register a firearm silencer to every 4473 form they have, and to additionally register one without payment of fees, inclusion of serial numbers, or background checks of any kind to anyone who writes a letter to the FBI requesting one?

        I’ve picked that one because no one should have standing to sue over it themselves as no one is harmed by it (so read it in that light), and that to reverse that would require that the next President go through notice and comment rulemaking to undo it?

        It’s always seemed absurd to me that the APA prohibits summary reversal of acts that themselves violated the APA, but at least that would be consistent.

        But if so, wouldn’t (in this example case specifically) that open up the President to 1983 liability, as she’d be acting in a way clearly established by the Executive as objectively tortious? That ones just for fun, but also emphasizes that this can’t possibly be the rule.

        1. If you agree that no one has standing to challenge the hypothetical executive order, what’s the problem here?

  5. I know this post isn’t addressing the APA issue but I’m still unclear why an exercise of what is essentially prosecutorial discretion is subject to the APA anyway. If one administration can use it’s discretion not to enforce a law, then another should be allowed to use its discretion to enforce the same law. Since they aren’t interpreting what the law is only what will be enforced, I don’t know why they have to give any reason for the change.

    As it is, I think DACA should be done through Congress but is probably legal. Giving them work permits is in the bounds of what has been delegated even though pretty clearly against the spirit of what the delegation is for (just another in the many reasons why Congress should stop delegating its power). I’m not even sure what “lawful presence” means exactly so I can’t comment on that.

    1. “…I don’t know why they have to give any reason for the change.”

      They don’t. But if they do, arguably they are bound by those reasons, at least on an arbitrary and capricious challenge to the change in policy.

      I think the administration wins at SCOTUS. But they haven’t made the case any easier for themselves. See Motor Vehicle Mfrs. v. State Farm, 463 U.S. 29 (1983). I don’t agree with that case’s application here. I think (like the dissent) that BLE, 482 US 270, decides the issue. But the 9th Circuit majority disagreed. We’ll find out from SCOTUS.

  6. As co-blogger Josh Blackman (a longtime critic of the legality of DACA) points out, the Trump administration’s position in these cases relies heavily on the notion that DACA had to be rescinded because it is itself illegal. For political reasons, the president did not want to give the impression that he actually favors deporting the Dreamers (which would be an extremely unpopular position). Thus, he decided to hide behind the theory that his hands are tied by legal considerations

    Apologies for perhaps a dense question, but this suggests that the argument here is not over whether Trump may rescind a previous president’s orders, but rather whether he can have them declared illegal and therefore invalid? And that the only reason for doing that is to avoid obviously taking a very unpopular opinion?

    As I guess it has to be said these days, I’m an open borders guy, but this case confuses me.

    1. That’s the briefing the Trump admin made in court.

      ¯\_(ツ)_/¯

      1. The more interesting question, I think, is what happens if the Court decides that the Executive was in error in their determination that DACA is illegal.

        Just because they’re wrong as a factual matter doesn’t mean they didn’t have the power to undo it, so coming to that conclusion is only halfway there, and a good faith (stop laughing, it’s possible the Trump admin was acting in good faith here) conclusion on an uncertain question is almost definitionally not arbitrary and capricious – it’s just wrong.

    2. There’s a much better reason for DACA to be declared illegal.

      If it’s illegal, a future administration can’t just say “whoops, new policy, DACA is back”. They would need a law.

  7. This is the most poorly reasoned Ilya Somin piece since the one where he posited that Obama was, of all past presidents, the most helpful to the cause of religious liberty because of his numerous attacks on religious liberty. This whole article reads like an ad hoc rescue by a technocrat who is so in love with the mechanisms of the existing order that he won’t tolerate seeing it besmirched. As someone once said of Alexander Hamilton, Ilya Somin is a Tory without a king.

    I really don’t care for Trump, and I’m highly sympathetic to the Dreamers. but this is just an awful article.

    1. Care to go into your specific issues, or just gonna say it’s bad and move on?

      1. Counter example: President Trump enacts the Forever Yearning To Win program (FYTW!) under which anyone who has been a registered Republican for at least 3 years and files an application to pay $100 to the FYTW fund which will be spent on Designated FYTW sites (every one of which is a Trump resort) or the Presidential Guard Militia, and which guarantees that the applicant won’t be prosecuted for voting as many times as they want – which will be enforced by the Presidential Guard in each state.

        Lawful? That doesn’t (I think) actually violate any laws that DACA doesn’t – it’s just an enforcement prioritization that a politically favored class won’t be prosecuted.

        The difference is that DACA is generally popular, and this wouldn’t be (trolls excluded, of course).

        1. That’s an unauthorized program. DACA uses existing statutory authority.

          Plus our allowed error rate for illegal crossings has always been higher than fraud at the polls.

          1. “That’s an unauthorized program. DACA uses existing statutory authority.”

            It’s pure prosecutorial discretion.

            1. Voter fraud is a state crime as well as federal, no?

              1. It can be a state crime. That fact is completely irrelevant to the question posed by the hypothetical. On what federal principle would Robert’s hypothetical be prohibited but DACA allowed?

  8. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.

    This is a bold claim, which the linked Alex Kozinski essay utterly fails to substantiate.

    Judge(?) Kozinski gives as his main examples corporate officers who were convicted of various strict liability environmental crimes, and other “businessmen” who were convicted of a Lacey Act violation. There is certainly an argument that imposing criminal liability for this conduct is unfair. There is even an argument that most Americans would have engaged in similar conduct given the opportunity to do so. But most Americans haven’t had that opportunity, and thus haven’t committed that crime.

    Similarly, while the parameters of honest services fraud are vague (and have been narrowed by the Supreme Court since the essay was published), most Americans aren’t in a position to commit it.

    Likewise, while it’s very easy to violate 18 U.S.C. § 1001 by lying to a federal agent, it’s also something most Americans will never experience.

    The other two examples are: using illegal drugs and lying on your taxes. I’m dubious that most Americans have done that, but perhaps I’m a naïf. I certainly don’t think many people would be surprised to know that it’s illegal to possess illegal drugs or to falsify your tax return, so if that’s the point you’re trying to make, you probably ought to put it that way.

    1. “But most Americans haven’t had that opportunity, and thus haven’t committed that crime.”

      I’d guess that most Americans have improperly disposed of batteries or fluorescent light bulbs. Probably failed to pay taxes on interstate purchases, too, to name another very, very common crime.

      The question isn’t whether everybody is a criminal if the law is interpreted reasonably, with a presumption of leniency for minor offenses. It’s whether everybody is a criminal if faced with a prosecutor out to get them. And, yeah, pretty much everybody could be nailed on SOMETHING if you threw enough resources at investigating them, and didn’t care if you were being reasonable.

      Especially once you start ruining them financially with the legal costs, and offer them a plea deal in return for stopping short of totally bankrupting them.

      1. Which is why I’m such a fan of jury nullification.

        1. Me too, and also because juries that can nullify are, just as a matter of historical fact, the sort of juries the 6th and 7th amendments were guaranteeing us.

          Whether you think jury nullification a good idea or not, there’s no getting around that fact.

  9. “he shall take Care that the Laws be faithfully executed,”

    Not in force anymore?

    1. What’s your argument? The President has a duty to enforce federal laws. The duty is enforced by Congress and the American people. In this case, it isn’t. (Because neither Congress nor the American people oppose DACA.)

      1. The American people are getting the shaft, because they overwhelmingly support ending illegal immigration and reducing immigration levels, while also being OK with DACA as policy. The ruling cabal of big business interests and their monoparty says, sorry, the historically unprecedented importation of foreign populations will continue apace, and we’ll also circumvent the rule of law to instate DACA.

        1. I don’t think Americans “overwhelmingly support ending illegal immigration and reducing immigration levels”. I think both are pretty extraordinary claims. What’s the evidence?

          DACA will be the law after it is no longer an enforceable executive order. DACA was a gift to the GOP. They didn’t have to campaign against children who were brought here illegally. And so in places like Texas (where the GOP is much more pro immigrant) you didn’t have to go out on a limb. Their gamble is to protect from the right by filibustering it, and protect from the middle and left by saying nice things about children but demanding what they know are poison pills from the left. Compromise is impossible because it would not help the GOP. They should love the status quo (no law, but DACA is real).

          1. The long-running Harvard/Harris poll, for example, has asked many different questions about immigration over the years. Oftentimes, the results have shown black and Hispanic Americans to be even more in favor of reducing immigration compared to other demographic groups (which makes sense, because black and Hispanic Americans are more likely to have working class jobs that are harmed by current immigration).

            The latest says 70% of Americans would be very or somewhat likely to vote for a candidate who “stands for strengthening our border to reduce illegal immigrants”, while only 30% would be very or somewhat likely to vote for such a candidate. For a candidate that supports increasing *legal* immigration, the split is 64 unlikely / 36 likely. https://harvardharrispoll.com/wp-content/uploads/2019/09/HHP_August2019_Crosstabs_RegisteredVoters.pdf

            Another one, “Should the United States deny green cards to immigrants who might be deemed likely to be heavy welfare users?” 60% answer Yes. 80% say illegal immigration is a very or somewhat serious issue facing the country right now, 64% say the same for legal immigration. 78% say illegal immigrants should not be able to get govt health care, disability, or welfare. Etc. Some of the previous polls were even more illuminating on legal immigration levels because they provided the facts and data on those questions rather than just generalities; the polls show people aren’t generally aware of the facts and data.

            1. Note that these groups of people don’t approve of President Trump any more than the other non-outlier polls you may be familiar with. This is zeroing in on the policy issues, which is a separate matter from Trump approval.

            2. You’re new goal posts are pretty different from what NToJ quoted.

    2. President Obama, I think, could easily enough have taken the basic prosecutorial viewpoint that the Congress had not provided enough resources (both money and manpower billets) to fully deal with well over 10 million illegally resident aliens. That would have allowed him to issue an order assigning very low priority to prosecution of both the dreamers and their parents (as well as the undocumented parents of American born citizen children. He certainly would have been well aware of the near zero probability that the Congress would respond by providing those resources.

      Instead, he instituted a program establishing an officially protected class of technical criminals and gained a good deal of support from a segment of the population and anger from another. DACA (and DAPA) were political moves, plainly recognized as such by both supporters and opponents. At the same time, he provided his successor, a strong opponent, a list of registered candidates for attention and an example, as if President Trump needed one, for at- or out-of-bounds, authoritarian, executive action.

      And the Senators and Representatives pretty much ignored it beyond posturing and recriminations with content dependent on their particular electoral and other concerns.

      The fundamentally unfair aspect of all of this is that the DACAs, DAPAs, and quite a number of others jumped the line. At an amusement park it would get them thrown out. Why should it get them a pass as immigrants? That irritates me and I suspect more than a few others.

      It certainly is true, especially of the adults who consciously committed crimes, that these are the energetic, probably intelligent people with initiative and risk taking propensity who, over several generations, are likely to make disproportionate contributions to their adopted country. It also is true that they have paid a price in insecurity, but that was their choice, and is in the past. But it is for the Congress, feckless though it often is, to find and enact an equitable solution. The courts are too blunt a tool, and presidential directives insufficiently rooted in the laws fail to provide the necessary long term fix.

  10. OK, two more points.

    “The grant of “lawful presence” to the immigrants covered by DACA is perhaps the most questionable part of the policy. But while this may seem like a big deal, in reality “lawful presence” does not actually legalize the presence of any otherwise illegal migrants. ”

    So, per Humpty Dumpty, I guess we know who’s in charge here, and it’s not the words.

    I agree that non-delegation isn’t actually relevant here, in as much as Congress was asked by the prior administration to delegate it this authority, and Congress refused. So there’s no delegation here to run afoul of that doctrine. Rather, the problem is that the executive is exercising authority here Congress explicitly refused to give him.

    Finally, why should the President be bound by YOUR view of his lawful authority? Why can he not argue, “I have a less expansive view of my Constitutional authority than, say, Ilya Somin, and since no law obligates me to pursue this policy *I* think unconstitutional, (No matter what he thinks!) it is perfectly within my discretion to refuse to exercise powers I think I do not lawfully have. Indeed, am I not positively obligated by my oath of office to refrain from discretionary acts I think unconstitutional, even if somebody else thinks Presidents more powerful than I, the actual President, do?”

    This would not be an idiosyncratic view of Presidential authority: Obama, too, declared DACA unconstitutional before he went ahead and did it anyway on the novel theory that Congress refusing to enact a law entitled him to act in Congress’ place.

    1. Really, why Ilya approves of the policy, his approval of the policy is missing the Constitutional implications of such an amazingly broad executive overreach.

      I’ve addressed some below. But what other laws can the executive simply…decline…to prosecute, ever? For policy reasons, of course. Campaign finance violations? Any law that Trump may or may not violate? Can Trump just say “Nope, no prosecuting any violations there, not enough resources.”

      1. Campaign donors to no longer be prosecuted for going over the donation limits, as long as they are otherwise “reputable”.

        Taxpayers to no longer be prosecuted for underpayment, as long as their “other behavior” meets with some beneficial approval standard.

        Firearms law violations no longer prosecuted if committed while wearing a MAGA hat.

        It’s easy to imagine them. But we all know that this sort of thing is only allowed by Democrat-appointed judges, and only when done by someone like Obama or Warren.

  11. Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.

    I’m sorry Professor Somin, but this simply cannot be the case. Congress never, ever intended to grant a legal status to illegal aliens en masse. POTUS Obama DID change the enforcement of the law(s) passed by Congress. That was a step too far.

    1. I guess the general principle here is that, if it’s not a rights violation for a cop to playfully hit you with a squirt gun, it couldn’t possibly be a violation for him to knock you off your feet with a water cannon.

      Scale matters, and DACA wasn’t just a matter of discretion, it was setting up a whole new program which effectively changed the law.

      Explicitly so: Obama declared that DACA was beyond his authority, and then when Congress refused to enact it for him, set out to implement the program Congress refused to enact.

      1. Brett….That is the part I just don’t get. How on earth does Professor Somin make the argument that he does, since DACA flies in the face of what Congress intended (and passed into law)?

        1. Flatly stated, his belief that DACA is a good idea is driving his reasoning. Bad programs must cross every “t” and dot every “i”, and then fail anyway on a presumption they’re motivated by “animus”. What else could motivate them, since they’re bad?

          Good programs get cut however much slack is needed to permit them. And there will always be enough slack to let you do the right thing.

          1. That’s the best summary of liberal though process I’ve ever seen. Since their ends are morally right and just, the means are always justified.

            1. It’s a natural consequence of the left rejecting teleological ethics in favor of universal utilitarian ethics, primarily Rawlsian.

              From that perspective, not only does the end justify the means, nothing else can.

              1. “ ….. only does the end justify the means, nothing else can.”

                How is that anything Other than obviously true? What could ever justify the means, other than the ends?

                That obviously doesn’t mean that any horrible means are justified for moderately good ends (Which may be what your getting at), but that only a good end can justify any means, and a bad end can justify no means. After all, the path to hell is paved with good intentions, so even good means if used to gain bad ends are not justified, and a failure to act (no means at all) is the only moral choice remaining.

                1. “How is that anything Other than obviously true? What could ever justify the means, other than the ends?”

                  Spoken like a true Utilitarian, but not everybody is a Utilitarian. And for good reasons. Utilitarianism is an interesting metaphor, but is as a practical matter impossible to actually implement, (The calculation problem.) and so even if it were valid it would be useless under all but the most clear cut circumstances.

                  Utilitarian ethics has some characteristic flaws. The one most relevant to our current political dilemma, is that it creates an incentive towards adopting a crudely Manichean view of the world.

                  If your means are to be justified, and you are in a conflict with someone, you have every reason to exaggerate how bad they are. Because the worse they are, the worse your actions can be, and still be justified. If they’re just mistaken people of good will, you have to watch what you do. If they’re evil monsters, almost anything goes.

                  And so the left has a tendency to view everybody who opposes them as monsters. It’s freeing; If you want to punch someone, just imagine they’re a Nazi!

                  Teleological ethics has its own weaknesses, but not that one.

                2. “but that only a good end can justify any means, and a bad end can justify no means.”

                  No, even a good end can not justify any means necessary, if the means are in themselves evil, no end can justify them.

                3. Stop (consistently) using means that need justification and you won’t have to worry about the answer.

    2. The problem with Somin’s argument is that it is inherently self-defeating.

      IF DACA doesn’t change the law, then rescinding DACA doesn’t change the law. IF DACA didn’t change the law, nobody gained legal rights that they could then lose because of a change in DACA status, thus no one would have standing to sue.

  12. Let’s rephrase the program in terms that Ilya may better understand. DACA does the following.

    1. Declares a broad class of illegal activity against certain class of people “will not be enforced” (as opposed to a case by case basis) as long as…
    2. Those engaging in the illegal activity pay a non-insubstantial fee to the government (outside the normal legislative mechanisms to raise revenue). Those who fail to pay the fee pay be deported.
    3. Then spends the raised revenue outside the normal legislative distributive process.

    This is, in essence a protection racket from the executive branch that avoids Congress. Let’s assume, as Ilya says, this entire process is “constitutional”. What else can be done?

    1. Can Trump redirect the “fee” from the Dreamers towards wall construction? Why or why not?
    2. Can Trump institute a new program that says employers won’t be investigated for using illegal labor, so long as they pay a “fee” to Trump’s administration, which he can direct as he wants? Why or why not?
    3. Can Trump declare other crimes “not to be enforced”…for example Pot sales…or campaign finance violations…so long as a “fee” is paid to Trump’s administration that he can disperse. Why or why not?

    Hopefully this begins to show why DACA is an amazingly overbroad use of the executive power, and goes far beyond normal case by case prosecutorial discretion, and instead rewrites the law, ursuping Congress’s role.

    1. No. Because some Democrat-appointed judges don’t like those things and they won’t allow them. They’ll come up with a legal-sounding justification later.

    2. 2. Those engaging in the illegal activity pay a non-insubstantial fee to the government (outside the normal legislative mechanisms to raise revenue). Those who fail to pay the fee pay be deported.
      3. Then spends the raised revenue outside the normal legislative distributive process.

      Sounds like bribery. Or, to use the Constitutional term, Bribery.

      1. In other words, a quid pro quo?

  13. Let’s add one more point.

    Let’s say DACA is declared “legal.” But the Trump administration takes a few select DACA recipients, and decides to begin deportation proceedings.

    What’s the defense? “We have DACA, we can’t be deported!.” Meanwhile the government says “we’re enforcing the law, as it’s written. The person is unlawfully present”. Does an executive policy have priority over the written law? Does a statement like that have implications towards other laws?

    1. They’d start citing “reliance interests”. Which shouldn’t work, from the USCIS website:

      “Use this form to request that we consider granting or renewing deferred action on a case-by-case basis using guidelines described in the Secretary of Homeland Security’s memorandum issued June 15, 2012 (PDF). Deferred action is a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion. Individuals who receive deferred action will not be placed into removal proceedings or removed from the United States for a specified period of time, unless the Department of Homeland Security (DHS) chooses to terminate the deferral. Individuals filing Form I-821D must also file Form I-765, Application for Employment Authorization, and Form I-765WS, Form I-765 Worksheet.”

      So even in getting the deferral, they’re notified that they’re still not here legally, and can be deported if the DHS changes their mind.

      1. Deferred, is well… deferred. Deferred does not mean that we have made a promise to never do a thing, merely that we reserve the right to get around to it later.
        Deferred is much different language than the amnesty that was provided by the legislature and executive jointly, and with force of law (because, ya know, it was law) in 1986.

  14. The problem with this whole argument is that it proves too much. If DACA is nothing more than executive discretion not to enforce certain laws, then it is neither binding on the next Admininstration (or even that one), nor does it vest any rights in anyone.
    This example:
    the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms.
    proves the point. That the feds generally do not enforce a particular law does NOT mean that they cannot choose to do so going forward, nor that the persons against whom it is enforced have any defense based on past non-enforcement.
    If DACA is merely discretionary non-enforcement, then it can be reversed through discretionary enforcement.
    If, OTOH, it vests some rights in the DACA beneficiaries, then it is illegal, as Congress has to do that.
    That is really the nub here.

    1. This seems to be a valid point to me as well. If one president can just waive his arms and choose how to enforce the law, then why can’t another president wave his and change it all back? Arguments seem to be that some agree with the first president, making his changes valid, and disagree with the second president, making his invalid.
      I prefer laws that are based on actual actions, not on what some presume to be invalid motives. If people want to stop enforcing laws for young people, then change those laws. In Congress.

      1. Both of you read the OP. It addresses that particular concern in the first couple of paragraphs, I thought.

        1. You must be seeing a different first couple of paragraphs than we are.

    2. You are correct that DACA is not binding on this administration. The APA is.

  15. This just in: Trump says he just ordered federal prosecutors to not charge any abortion clinic protesters with crimes, including violent ones…also says he will use federal law enforcement authorities to prevent state authorities from enforcing state laws, and considering blanket pardons.

  16. Just a thought, but why can’t the administration just rescind DACA but not say they doing it, and just starting deporting all the Dreamers regardless. The result would be hundreds of individual lawsuits, but the administration could just let the ones who win, stay, and keep deporting everyone else. I cannot imagine a national injunction against ALL deportations.

    1. All I can say is that, after the last three years, that’s an awfully weak imagination you’ve got there.

      1. What can I say, I’m a glass half-full kinda guy.

        1. The glass is always full. just because some percentage of the glass’s volume (between 50 and 100%) is full of air rather than (liquid of your choice) that doesn’t make any part of the glass empty.

          Good luck trying to get a drinking glass to hold a vacuum.

          1. That pedantic answer reminds me of my father, who was as literal a man as ever there was (God rest his soul).

            I once asked the man the riddle, “what can you put in a barrel to make it lighter?” The correct answer is “a hole”. But he said “hydrogen or helium gas”, which he pointed out is lighter than common air, so is thus “lighter” than anything that you would put in it. He was, of course, technically correct.

            1. That makes the barrel and its contents lighter, but not the barrel itself.

    2. “…but why can’t the administration just rescind DACA…”

      Because it is headed by a coward.

  17. OK, so let’s sum up: Prof. Somin’s argument is that, if the President can order individual instances of selective enforcement as a matter of prosecutorial discretion, he can order systematic non-enforcement of a law he doesn’t like, complete with levying fees to pay for administering the program.

    Professor, we’d like an explanation of how you’d apply this reasoning to a similar program you didn’t approve of, such as my illegal immigrant bounty hunter program.

    1. This isn’t systematic non-enforcement. Illegals are getting deported at the same rate.

      1. If I were in a position to impose a rule that only people with names starting with the letters l-Z were subject to enforcement of speed limits, that would be systematic non-enforcement, even though people would still be getting tickets. You’re confusing “systematic” with “complete”.

        1. I think you’re confusing systemic with selective.

          But regardless of the semantics, I am satisfied that we’re talking about the same thing.

          Get your bounty hunter program authorized, and see how it plays as you want it to operate.

          1. I don’t want it, unless it’s statutorily authorized, because I actually do believe in the rule of law.

            I believe in it because government isn’t inherently good, it’s inherently bad; Government is, essentially, just a highly evolved protection racket, and it is always threatening to revert to type.

            The rule of law is one of the chains that keep this monster in check.

            1. Government is us.
              I could as easily say markets are inherently bad; the concentration of greed legally obligated to ignore morality in favor of growth for growth’s sake.

              I don’t believe that, because I’m partisan, but not nearly as extreme as you. Markets, like government, are us. Each with different incentives.
              Neither is an agent of morality, but each can correct the immoral excesses of the other.

              Blind obeying of the rule of law is actually pretty monstrous; I know you don’t believe anything so myopic because I’ve seen you advocate for nullification and even civil war.

              1. Like hell government is us. At most government is some of us. Sometimes very few of us.

                Jury nullification IS the law; The jury trial guaranteed by the highest law of the land is the jury trial as it was known when the Bill of Rights was adopted, and that was a jury that could nullify.

        2. The difference, Brett, is that there is no sensible reason not to enforce speeding laws against people with names starting with l-z. It’s purely arbitrary.

          1. Systematic is the opposite of random, Bernard, not of arbitrary.

  18. You know, this is a ridiculous debate.

    There appear to be at least some legal arguments on both sides of the issue. Let’s just say it’s a close call.

    Are the pro-Trumpers really willing to upend the lives of 800,000 people over a narrow, nitpicky, legal debate? Apparently so.

    Look at those who, like Blackman and Shapiro, think DACA is a good idea, but are investing time and energy in having it struck down. Why? Do they see themselves as pure warriors for The Rule of Law? Is it blind careerism, heedless of consequences?

    It’s a close call, so why create a tragedy for 800,000 people? Because you can, and George Will might mention you in his column?

    1. “Why? Do they see themselves as pure warriors for The Rule of Law?”

      Yeah, actually they do. And are. If you’re not willing to go all rule of law in cases where you don’t like the law, you don’t actually give a shit about the rule of law, it’s just a convenient excuse to get your way when the law says something you like, and a nitpicky legal issue when you don’t like the law.

      1. I’m willing, Brett.

        The difference is that you can never accept the possibility that your view of the law might not be 100% correct, and subject to no question whatsoever, to the extent that you define any disagreement as being in bad faith.

        I’m saying there is room for doubt here, and it should be resolved in favor of the dreamers.

        There are lots of other, nobler, battles for these warriors to fight for the law. They seem to like the ones that get them into the spotlight.

        1. bernard….I disagree. There is no room for doubt what the law passed by Congress actually is. We have the law. The text of the law passed is the text. Nowhere in current immigration law does it state we create a special legal status for illegal aliens so they can stay here. Period.

          Cite the relevant section of immigration law passed by Congress that enables this DACA bullshit.

          1. There is none, obviously. While the executive may have discretion to simply refrain from deporting folks, they have absolutely no authority to create a program, grant them legal status, work permits, etc. The mere fact that there is a federal case over the executive reversing DACA proves that it was illegal to begin with.

            1. And to clarify: if DACA were just an exercise of prosecutorial discretion then no one would have standing beyond their own personal case, and only to the extent to make a claim of detrimental reliance, which should fail as the DACA program itself states that DHS can change its mind at any time.

              But the courts think there’s standing, necessitating a belief in an established right. Since absent a non-prosecution agreement no one ever has a right not to be prosecuted for violating the law the courts view DACA as granting a right – not just as the absence of prosecutorial discretion.

            2. I’m not clear on this, but Somin sites a statue that is an existent program that allows work permits.

    2. Yes, we are, because these 800,000 people don’t belong here anyway, will never be good Americans, and will produce children that will demographically and politically displace us.

      1. An honest, if idiotic and bigoted, answer.

        1. Truth must hurt, huh?

        2. Maybe. I still think RestoreWesternHegemony is a parody account, but that may just be Poe’s Law at work. He hits too many points that match what leftists think conservatives believe, but there are crazies in every group so impossible to be sure.

          1. Deluding oneself is not a winning strategy. The sooner conservatives realize the truth about race, the better.

            1. Race realism doesn’t have to entail racism. Conservatives can notice the policy equivalent that the NBA is mostly black and Olympic swimmers are all white without it leading to the racist policies you advocate. Race neutral policies are what conservatives should advocate for, and let the best come out on top…which is usually the Asians or Jews anyway.

              1. Yeah, except that race neutral policies, given the fact that whites are only about 7% of the world’s population, would mean that non-whites would become the majority in every white country. That would lead to the end of conservatism.

                1. There is no one world government, what are you talking about? There should be race neutral policies in America. If you concerned about 3rd world peoples flooding the 1st world, that has nothing to do with it.

                  1. Right, but the only way to prevent that would be to end immigration entirely, or to adopt non-race neutral immigration policies.

                    1. Race neutral immigration policies that didn’t allow people from shithole countries because they were coming from shithole countries would have the same effect as explicitly racist policies that prohibited people from shithole countries because of their race. They would also have the benefit of being morally acceptable to a majority of the public.

                    2. But since non-shithole countries don’t have any sizeable number of people who want to come here, that would mean basically no immigration. Which would lead to the argument that we have plenty of space for third worlders.

    3. “upend the lives of 800,000 people ”

      Not us, their parents who brought them here without a right to be here.

      1. Um, they’re still people.

        1. Yes, people. Just not American people.

          1. Notably, bernard11’s argument of erring on the side of less misery was not limited to American misery.

            1. Notably, not our problem.

              1. Yes, it is. We’re causing the misery to line our own bottom line.

                1. Wait, how does it “line our bottom line,” which I assume to mean “profitable” to shrink the extent of the market? Modern (post-industrial revolution) economics is clear – more really is more.

                  If anything losing 800k people will decrease our prosperity, and as a rule dreamers are all in peak working years (or about to enter them), so they’re not even starting to consume subsidies yet.

                  Kicking out older people without significant savings at least might be a net monetary savings, but that’s not the Dreamers.

                  1. Low wage people do not increase our prosperity, as they and their kids cost far more than their economic output.

                  2. I’m talking about illegal immigration generally. Illegals are paid under the table, almost definitionally. Industry thus gets to avoid taxes and labor regs. And has a cohort that can’t complain about it.
                    They’re paid barely a living wage. It’s near slavery, 1920’s labor style and I wish we’d stop. But blaming the victims won’t get us there.

                    With Dreamers it’s not even about the bottom line. It seems to me it’s darker than that. They are not targeted because of anything other than symbolism. As Bernard noted, the law isn’t clear. But the cruelty is the point. Under the guise of standing up for rule of law, the unifying force of targeting an outgroup is marshaled.

                    1. They are not targeted because of anything other than symbolism.
                      Bullshit. They are targeted because they are illegal aliens and here illegally. No more, and no less than that.

                      If you want to make a compassion case; make it. But don’t make a legal case, cuz there isn’t one. Congress never intended for illegal aliens of any kind to stay here.

                    2. Lots of illegals aren’t targeted. But these are. There is no resource-based argument. And no one claims these will end illegal immigration.

                      Obeying the law just to obey the law without any interrogation of that law, especially a law with discretion, is not a modern mode of morality.

                2. “We’re causing the misery to line our own bottom line.”

                  Don’t you believe limiting immigration is a negative to our national bottom line?

                  Any misery was caused by the reckless parents.

                  1. This whole debate shows that we can make a choice to stop that misery.

                    I, and every economist but like one think that limiting immigration would hurt our productivity.

                    Doesn’t mean we shouldn’t, but that you find it unbelievable that our economy uses immigrant labor is pretty amazing. Especially after I’ve seen NToJ show you links.

                    1. It would be better to aim such arguments, valid though they are, at the Congress and the public. Those are the groups from which change should come.

                      We see in this DACA argumet a marginally lawless chief executive who, for policy and political reasons, is trying to undo the earlier work of a somewhat less lawless chief executive.

        2. Along with 6 billion others who would be better off here. Why are only Western countries obligated to flood themselves with low-IQ and illiterate third worlders?

      2. When an American citizen gravely endangers their children, they are locked up and CPS takes the kids away. Trespassing into a heavily militarily guarded border would obviously qualify. Even objecting to the chemical castration of your 7 year old son can cause the state to step in. So, what we have is a government that privileges foreigners over its own citizens, because they are seeking desperately to import as many foreigners as possible for profit and power.

        1. what we have is a government that privileges foreigners over its own citizens, because they are seeking desperately to import as many foreigners as possible for profit and power.

          You’re really going down this white genocide rabbit hole.

          You do know what these families are oftentimes running from?
          And we’re the ones who created the hazard so prosecuting people for child endangerment on that ground would be a little awkward.

          Anyhow, I don’t think we prosecute American under CHS for crossing dangerous borders.

          In short, your parallel is strained, and your thesis is one generally pushed by white supremacists. I’d pull up from this dive were I you.

          1. “white genocide”

            Poor and working class blacks suffer the most from open borders.

            Where does ML mention race btw?

            1. Sarc is “see no evil, hear no evil, speak no evil” when it comes to demography. Even the NYT is gleefully reporting these days that Virginia went Democrat blue due to immigration.

              1. Demography isn’t destiny. Certainly within a generation politics change.
                Unless, of course, one party is feverishly anti-immigrant and getting whiter by the day. Then they may have some issues with outreach.

                That’s not the fault of immigration, that’s the GOP making bad choices.

                1. Nothing is “destiny”…but it’s a fairly good indicator of where things are going…witness California, or Texas. Ask yourself why China is flooding Tibet with Han Chinese?

                  You are correct in that the GOP made a bad choice. The pro-cheap labor wing of the GOP aligned itself with the pro-open borders because we want the votes Democrats.

                  If Hispanic Catholics voted Republican, you’d be having a different take on it. Nor would I be foolishly saying to you “well, I suppose the Democrats need to be more pro-life”.

                  1. Which is why the Democrats hated the Cubans.

                2. Why did Trump do better with American Hispanics/Latinos, and American blacks, than Romney did?

                  Can you answer that Sarcastro?

                  It’s because the America First agenda benefits them too, just as much as white Americans, and it’s not race-based.

                  1. Yeah, Hillary has some history with blacks and it wasn’t great.

                    I’m not going to tell them how to vote, but I will tell you that your whole ‘they’re using foreigners to replace real Americans like you and I’ is right out of Stormfront.

                    1. Yes, the old tactic, “someone bad thought something similar so you’re wrong and evil.” I thought you decried this sort of thing all the time in the communism threads?

                      “You know who else liked orange juice? HITLER!”

                      Real Americans can be of any race. The question to you is what do you think a real American is? Just has the right paperwork?

                    2. This isn’t ‘Hilter was a vegetarian,’ it’s ‘your main thesis is a cut-and-paste of some of the worst our country has had to offer’s thesis.’

                3. Demography is destiny when certain people are genetically predisposed to a certain political leaning.

                  1. See, that’s BS. If the democrat party was telling American Blacks that this country was a meritocracy, which it mostly is, and that systematic racism was a thing of the past, which it is, then they would believe it. Moreover, there is cultural reason Asian immigrants support democrats (strong central government is normal to them) and that Hispanics vote democrat (strong central government is normal to them) etc. etc.

                    1. Even if it’s not “normal” to them, if you have a genetically low IQ (Hispanic mestizos, not East Asians), then government cheese will sound good to you, as you know you’ll never be able to make it in a limited government meritocracy.

                    2. This was a good read two years ago, and remains so.

                      http://www.anncoulter.com/columns/2017-11-15.html

                    3. Nothing is what you say, nor in Coulter’s column is evidence that genetics, or IQ, influence voting behavior of immigrants in the U.S., just some conjecture on your part. Blacks used to vote Republican ya know.

                    4. Okay, so what’s your solution? Continue to import tens of millions of third worlders and just hope that they see the light, from our shining beacon of liberty?

                    5. The U.S. is hardly a shining beacon of liberty…and only looks good by historical comparisons.

                      You could just wind down immigration, from all sources. You’re never going to get explicitly racist policies enacted into law unless those policies are racist to the benefits of blacks instead of whites.

              2. “the NYT is gleefully reporting these days that Virginia went Democrat blue due to immigration.”

                Yep. They didn’t have to come up with better ideas and convince Americans. All they had to do was sit back and get some different people in there from other countries. Is politics really war by other means?

                1. They didn’t have to come up with better ideas

                  They were glad to let the GOP promote worse ones.

            2. I italicized the ‘great replacement’ reasoning. It’s called the Great Replacement in France, and white genocide elsewhere.

              1. Where does the italicized part mention race?

                1. I leave the connection between immigration and race as an exercise to the reader.

            3. That is correct Bob. They want to take away our rights, our guns and self-defense, our livelihood, way of life, and self-government, to obtain power and a global socialist order. And the means, of mongering racism and calling everyone that disagrees white supremacist, are almost as risible as the ends.

              1. They want to take away our rights, our guns and self-defense, our livelihood, way of life, and self-government, to obtain power and a global socialist order

                This is not normal thinking.

                1. Yes their thinking is quite deranged, I agree. And it’s out of the norm compared to the American people in general. But unfortunately it’s quite commonplace, and openly stated, among leftist politicians, government officials, “intellectuals,” political donors, etc.

                  1. You’re paranoid. You sound right out of the rantings of a Klansman back in the day, or any number of populist rabblerousers arguing for violence.

                    1. Sarcastro, I am just repeating what these folks themselves have said thousands of times (here’s just one example). Are you saying I should not believe what they say? Why? Let me be clarify, I am absolutely not talking about “leftists” here, and in fact I’m including many on the “right.” That’s very important to clarify. Left/right is somewhat of a false dichotomy in this regard; it’s more of a dichotomy between the American people and establishment special interests.

                      Before signing off let me just say that I don’t harbor any ill will toward you for disagreeing with me, and I won’t attribute any nefarious motives or bad faith to you. Although I find it insulting when you constantly call me a white supremacist or compare me to a Klansman, I will assume you have genuine, good faith concerns. I’ll happily stick to my guns and defend “America First” because the truth is on my side, regardless of which politicians win or lose and even if America goes belly up.

                    2. Making it nonpartisans so it’s elites versus the rest of us doesn’t make your anti-foreigner populist raging any more palatable or less crazy.

                      I find your positions on this blog to be increasingly awful and kinda scary re: their trajectory, but I have no idea what you’re like as a person.
                      My comparisons of your quotes to that of a Klansman are an attempt to show you the rout you are going down. You’re the one with the radical quotes that can’t be seen as implying the necessity of anything less radical than violence.

                      We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress [real Americans], it’s possible that there might have to be some revengeance taken.

                      Got rid of the white part for ‘real American’ isn’t this a lot like your thinking?

                    3. I’m sorry you find facts and truth to be scary, but no, I’m not going down any route to anywhere, any more than you are becoming Stalin because you support social security or something.

                      As for your quote — no, that is nothing like my thinking. I don’t support any kind of political violence, nor especially any kind of violent overthrow of government authorities to which one is subject, even if they are terrible. I would support classic self-defense, classic national defense, just war etc.

                      It’s fascinating that you think what I’m saying implies that violence is necessary. I mean, I’m just telling you stuff I read in the New York Times and National Review. Do you become homicidal upon reading a publication? Get a grip man.

                    4. They want to take away our rights, our guns and self-defense, our livelihood, way of life, and self-government, to obtain power and a global socialist order

                      This isn’t facts, it’s speculation. To go the rout of telepathic demonization is your choice, even if you’ve told yourself it’s the only rational inference.

                      I also don’t see how you can think that the global liberal order is as powerful and evil as you seem to and yet abhor violence, though I’m glad that you do and hope you keep to that principle.

                2. Major Dem candidate Beto vows to take assault weapons (a 2nd Amendment right), and he and others want to go after the tax free status of churches that don’t accept gay marriage (conservatives’ way of life) to cheers and applause at primary debate…but that’s not normal thinking to notice?

                  Author of the “green new deal” that Dem candidates agree with admits it’s about socialism (replacing our capitalistic way of life) as much as environmentalism…but that’s not normal thinking to notice?

                  Democrats and liberals such as your self look at utilitarian fixes for world suffering that put other nations on the planet (another word for “globe”) ahead of American citizens….but that’s not normal thinking to notice?

                  Does it sound Alex Jones…yea, maybe a little, but he’s not wrong either.

                  1. You’re going to cite Beto as having his thumb on Democratic thinking? Your confirmation bias is showing.

                    I’ve been around with your paranoia about fundamentally changing America. It’s all confirmation bias. You love the fear; it justify some pretty bloody thinking on your part, as I recall.

                    1. Beto said what he said to a cheering crowd, and he nearly won a senate race in Texas (in TEXAS!). He’s fairly mainstream as far a Democrats go, and thus a good indicator of the thinking of Democrats on the whole. In a less crowded primary without a heavy hitter like Biden in the race, he could have locked in a nomination for his party.

                      Oh, and never mind that Obama said he wanted to “fundamentally transform” America. I suppose he was lying.

                    2. Why do liberals insist that we not notice the very things they do, and accept their obvious bad faith?

                    3. You off the top of your hat judge that the guy you quote as proof Dems are radical is a good example of Dem thinking. That’s confirmation bias personified.

                    4. Sarcastro, I don’t think you would know confirmation bias, or any logical fallacy, if it bit you on the nose.

                    5. You’ve found someone that confirms your thesis about how Dems think.
                      You have also, separately, decided that this person is emblematic of how Dems think, and would totally be chosen by the Dems but for some butfors.

                      You don’t see how a bit of a fallacy might have snuck into your reasoning there?

                    6. If I didn’t feel that correcting you in front of others wasn’t worth it, responding to you would be a waste of time.

                      I didn’t “find” someone, it was gleefully reported in the mainstream press about Beto, who almost won a major Senate race in Texas and was a major presidential candidate who said to a cheering crowd of democrats (you ignore that last part) that he is coming for our guns.

                      Are you that silly that you are unaware of polling data on this too? There is a huge partisan divide on it according to PEW

                      I also note, you ignore that parts about the green new deal being admittedly about socialism by its author, etc.

                    7. almost won a major Senate race in Texas Almost is key here.
                      was a major presidential candidate Is just untrue. What was his highest polling numbers?

                      You’re committed to your bias, and that requires you make Beto a huge deal. He wasn’t. He isn’t. He nearly beat Ted Cruz, who is not exactly Mr. Popular.

                      And a Texas Dem is going to do things differently. Not worse, but not standard Dem.

                      You’re working very, very, hard to pick your sources such that you can believe Dems are as opposed to you as they can be. Maybe think why you’re so into that rather than continue to look for examples that confirm your chosen narrative.

                  2. Yeah, Beto is a “major” Democratic candidate, who dropped out about a week ago after barely making a showing in polls.

                    1. Brett, the bill hadn’t passed yet either.

    4. If DACA is the morally right thing to do, then why aren’t you lobbying Congress to pass it as a law? Are the anti-Trumpers really willing to upend the lives of 800,000 people just to have a few more anti-Trump talking points rather than to change the law?

      This is not a “narrow, nitpicky, legal debate”. It’s a vital test of the constraints that keep our government in check.

      1. “If DACA is the morally right thing to do, then why aren’t you lobbying Congress to pass it as a law?”

        I won’t speak for bernard, but Democrats did submit the Dream Act in both houses of congress in 2010 and 2011. It was filibustered. There was a bipartisan Senate Dream Act bill introduced in the 115th and 116th Senate as well, but for some reason it has not made it out of committee. This year the House has already passed a bill. The Senate hasn’t voted on it, for some reason. (The President has threatened to veto it.)

        1. I’ll endorse NToJ’s response on my behalf.

          There was also an offer in 2018 to give Trump a lot of border money in exchange for his support.

          He ultimately rejected that. So, yeah. The Democrats are trying to get it passed.

          1. Again, it was a mere authorization offer. Subject to a future appropriation that would never be passed.

            Rube bait.

        2. A “Dream Act” that puts in a fix for under a million people is considerably less than 10% of what is needed here. Let the Democrats, the Republicans, or both suggest a solution to both the current problem, such as it is, of illegal resident aliens, and the related problem of large numbers of applicants for legal permanent residence. Then we might have a sensible conversation.

          1. In the current political climate, incremental change on this issue is the best you can hope for.

    5. Non-enforcement of an illegal and unwanted activity just gets you more of that activity. (see the effect of non-prosecution of shoplifting on the rate of shoplifting in california)
      We, generally and collectively as citizens, might feel poorly about shipping out people who have spent most of their lives here as a result of illegal actions of their parents.

      So if a dreamer is to obtain permanent resident status, a thing many americans might wish to offer, then there needs to be some penalty for the one who illegally brought them here: on their application for permanent residence, they must swear under oath and penalty of deportation themselves, the testimony as to who illegally brought them to the states.
      Either the dreamer came illegally (rectified by sending them back) or someone else brought them here illegally (rectified by sending that person back.)

      1. Making things punitive for illegals hasn’t proven a great disincentive.

        Eventually that thinking requires you start killing people. To make an example, of course.

  19. Motives matter, and so it is improper for a President to use a discretionary power to do an end-run around Congress, even if the same power could be exercised properly in different circumstances. A President who doesn’t have the resources to enforce all the laws all the time – in other words, every President – must make choices, and those choices can be influenced by what the impact of nonenforcement will be, but using that power to achieve a result that Congress wouldn’t support by law is wrong, equally wrong as using emergency military construction as an excuse to build a wall that Congress wouldn’t appropriate funds for.

    1. Motives matter?

      Travel ban, anyone?

  20. If you’re not willing to go all rule of law in cases where you don’t like the law, you don’t actually give a shit about the rule of law, it’s just a convenient excuse to get your way when the law says something you like, and a nitpicky legal issue when you don’t like the law.

    You mean like Trump turning over his tax returns because the law says he has to, even though he doesn’t want to.

    I haven’t heard you complaining about his refusal, oh mighty Champion of the Law.

    1. You have a cite for the law that says he has to turn over his tax returns?

    2. “because the law says he has to”

      What law says he “has to?” I must have missed that one.

      1. Internal Revenue Code.

        Ways and Means committee.

        I know – you have some BS about it – “under audit” or whatever.

        1. The law says he has to in order for Congress to determine the effects of particular tax policies on people. Not so Congress can exact retribution against its political enemies.

          1. Actually, it just says he has to.

            That other stuff is made up.

            1. Haven’t we established after Romer v. Evans that animus prohibits the otherwise lawful use of power?

    3. “turning over his tax returns because the law says he has to”

      He is contesting what the “law” means in court. He has not refused to obey a final, non-appealable court order.

      Litigation to assert a right is part of the “law” too.

  21. I don’t entirely mind watching right-wingers ride their ugly intolerance all the way down to political irrelevance in modern America, because the Republicans will take the political aspirations of gun nuts, anti-abortion absolutists, polluters, and similarly situated elements of the conservative electoral coalition down with them.

    1. The primary “intolerance” being exhibited here is the intolerance for people continuing to profit from their parents’ crimes. Should we extend the same consideration to the offspring of Bernie Madoff? Those of Jeffrey Skillings?

      1. The families of madoff and skilling are financially better off today than if those men had pursued legal yet financially less lucrative crimes.
        But nonetheless those families did not get directly punished, as they were (seemingly) unwitting benefactors.
        Likewise while we might not send the dreamers back, someone is still the criminal mastermind who brought the kids here. Kids don’t get to keep legal status for themself, and mom and pop, grandpa grandma cousin etc.
        You can stay, but only if someone responsible goes.

        1. Well, family reunification should be dead last on the list of qualifications anyway…

    2. Fuck off, slaver.

  22. the administration still hasn’t put forward a theory of why it’s actually a good idea to subject DACA recipients to deportation,

    They’ve put forward several theories, the first of which is that it’s illegal.

    Somin insists on declaring theories he disagrees with to be non theories, because simply declaring them to be mistaken theories results in the need to pass judgement over the theory, yielding Trump in control (or the courts in a place they don’t belong).

    1. None of the theories you’re thinking of, whatever they are, were put forth in the case Prof. Somin is discussing.

      Why do you think that is?

  23. YO! What part of “Deferred” is too complex to understand?? What part of Exec Order is done or UNDONE by the SITTING POTUS don’t you understand?????

    Are you stupid or just Colluding to OBSTRUCT Constitutional Powers?

    Oh, wait, that’s right, Reason went full LIBTARD!

    Never go full LIBTARD! Never!

    Woe be tide and George Mason Law Students who have to suffer this idiotic imbecile!

  24. I don’t see where Ilya “Open Borders” Somlin reconciles “prosecutorial discretion” with the affirmative act of create a program to issue work permits and spend federal dollars without Congressional appropriations.

  25. DACA and the surrounding drama poses a question for me that no one can seem to answer. Because Obama was such too weak to actually push through a piece of actual legislation, he created the DACA program by executive order. Clearly, he was either unwilling or unable to invest the political capital to legislate the program (one with which I have no objections, by the way). If one president can create a program by executive order, why can’t another president rescind it? This seems to me to be the flaw in legislating by executive order; it’s a tool for a weak leader who can’t present a cogent argument to promote worthy legislation. It seems to me that a successor President should be able to undo anything created out of thin air by his predecessor.

  26. All of this was a waste of words…

    Anything one president can do with an executive order, the next one can undo. PERIOD.

    Don’t like it? Get a new law passed.

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Plumbing the depths of artificial stupidity

Episode 287 of the Cyberlaw Podcast

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The Foreign Agent Registration Act is having a moment – in fact its best year since 1939, as the Justice Department charges three people with spying on Twitter users for Saudi Arabia. Since they were clearly acting like spies but not stealing government secrets or company intellectual property, FARA seems to be the only law that they could be charged with violating. Nate Jones and I debate whether the Justice Department can make the charges stick.

Nick Weaver goes off on NSO Group for its failure to supervise the way its customers intrude on cell phone contents. I'm less sure that NSO deserves its bad rap, and I wonder whether WhatsApp should have compromised what looks like 1100 legitimate law enforcement investigations because it questions 100 other investigatons using NSO malware.

Speaking of Facebook's judgment, Paul Rosenzweig and I turn out to be surprisingly sympathetic to the company's stand on political ads and whether "Mama Facebook" should decide their truthfulness. Meanwhile, Twitter, darling of the press, has gotten away with a no-political-ads stance that is at least as problematical.

Nate, Paul, and I go pretty far down the rabbit hole arguing whether search warrants should give police access to DNA databases.

The National Security Commission on Artificial intelligence has published its interim report, and Nick, Nate, and I can't really quarrel with its contents, except to complain that it doesn't break a lot of new ground.

And maybe all this AI is still a little overrated. Remember that AI fake news text generator that OpenAI claimed was "too dangerous to release"? Well it's been released, and it turns out to be bone stupid. We test it live, and the tool has a long way to go before it can scratch its way up to "underwhelming."

Nick tells us why nobody who ever worked with the US government should even change planes in Russia these days.

In the lightning round, Paul and I ask when blowing off Congress became a thing anybody could do. Nick dumps on both sides in the Great DOH debate. I note that Ted Cruz has called out USTR for sticking Section 230 into trade deals.

We close with This Week in Pew! Pew! Pew! It really is the 21st century now that we're using lasers to attack talking computers. Nick explains how to order fifty copies of Skating on Stilts using your neighbor's Amazon account and a laser.

Download the 287th Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the participants' firms, clients, or relatives.

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  1. Albert Einstein:
    The difference between stupidity and genius is that genius has its limits.
    Only two things are infinite, the universe and human stupidity, and I’m not sure about the former.
    artificial intelligence is no match for natural stupidity

    All machine learning was first programed by man.

  2. Mueller’s team greatly upping and expanding FARA will, by far, be his longest lasting legacy. This is likely to be a negative in the long run.

    1. FARA was one of the most (deliberately) overlooked laws for years. While trying to expand it too far – as seems to be happening in this case – is bad, it’d be wonderful if all the unregistered lobbyists for foreign governments on K Street suddenly found themselves facing criminal charges.

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Is Someone of Recent Gibraltarian Origin "Hispanic?"

No, said a New York court

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Lagrua v. Ward, 136 Misc. 655 (N.Y. Sup. Ct. 1987) involved a New York police officer who, to benefit from an affirmative action program, sought to change his ethnic classification with the police department from white to Hispanic. To substantiate his claim of Hispanic identity, Lagrua claimed that his mother was born in Gibraltar and that his maternal grandparents were of Hispanic origin. He also claimed that he had joined the Police Department's Hispanic Organization. The officer in charge of such things could not substantiate that Lagrua had ever been a member of the Hispanic Society. Moreover, though originally part of Spain, "Gibraltar is and has been under British rule since 1718; the culture there is mixed, the official language is English and the law is based on English Common law. Although Spanish is widely spoken the Gibraltarian way of life is predominantly British." The department therefore determined that Lagrua was not Hispanic, a conclusion accepted by the police department's equal opportunity office. On appeal to the New York State Supreme Court, the court concluded that this decision was not erroneous, and therefore ruled that Lagrua would remain classified as white.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Lines are hard to draw re complex but important concepts! In other news, Mid-East Peace talks stall.

    1. Lines are also hard to draw re: complex but trivial concepts. Also for ‘complex because they are irrational’ concepts.

      Complexity (as evidenced by the difficulty drawing lines) is not evidence that a concept is important. The impossibility of drawing lines, however, can be circumstantial evidence that the concept is irrational and that perhaps we ought not to be wasting our time trying to draw undrawable lines.

    2. Yeah, every time you create a nobility that has special rights, people tie themselves into knots trying to find a way they’re part of the nobility. The solution is to abolish all forms of nobility or, at least, make it strictly ceremonial. Our era of race-based nobility is no different.

      1. The idea that, say, hispanics and/or blacks are nobility in our history is laughable if it were not so tragic.

        1. Psst – 2019 is not 1955.

    3. This particular line didn’t seem hard to draw at all.

      Guy tried to claim he was Hispanic when he wasn’t and got shot down at every turn.

      What is the issue?

      1. How do you know he wasn’t Hispanic?

        You can’t use the court ruling itself, because that’s circular. And Gibraltar was part of Hispania if were going old school, so he’s at least a hispaniensis (conjugation? It’s been a long time), which translates into English as Hispanic the same as Hispanus (pretty sure I conjugated that one right) – English is a lot less precise than Latin.

        Or you could go with the Census Bureaus “a person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race,” which either excludes many people stereotypically categorized that way or includes everyone whose ever seen the most popular video in YouTube history.

        1. Absotively! “Hispanic” has nothing to do with any of the racial categories the Census Bureau uses. Hispanics can be — and are — of any “race.” The majority of American Hispanics are of Mexican ancestry, and most Mexican Americans are white — no mater how much the activists call the “people of color.”

          So the guy is not a non-Hispanic white. He’s an ordinary white, maybe even a WASP for what it’s worth.

  2. Was he then issued a white privilege card?

    I’m still looking for mine. Can I get it reissued by some governmental agency if I can’t find it?

    1. Just make clear you show them your monocle, your Maxim subscription, and even (if absolutely necessary), your Vanilla Ice CDs.

    2. Can I get it reissued by some governmental agency if I can’t find it?

      Of course you can.

      Go to your local county/state office that issues birth certificates and request a copy.

      1. I must have gotten ripped off because my birth certificate doesn’t show that.

        (About the only thing it does show is that I’m older than I want to admit.)

  3. Alas for the racial purity types, they’re going to find that many apparent People of Color are actually mischlings. I hope they tie themselves in knots fighting over who is entitled to race-based benefits.

  4. One wonders how his fellow white NY police officers (not widely known for tolerance under the best of circumstances) have reacted/will react to his decision to try and game the system. And how actual Hispanic officers reacted to that decision. He’ll probably be the subject of a few pointed squad room pranks…at the very least.

    1. 1987, he’s retired by now.

      1. Whoops! Nice catch, Bob…my bad. (The benefit of David B posting on a 1987 case is, um, unusual. When Eugene Volokh does something like this, he’ll add a comment like, “This is an old case, but I just came across it and thought it was funny.”, or, “This is an old case, but I thought it relevant in light of [fill in current event that illustrates its relevance].”

        When Conspirators doing posts about a case that interests them, I clearly have been automatically defaulting to a “This is something recent” mindset. That’s sloppy reading on my part, and I’ll make sure to avoid it here in the future.

        1. No, that’s a reasonable default rule. I suspect it was merely an oversight as I recall Bernstein having flagged posted before as based on old info.

  5. Had Mark Twain been familiar with the Volokh Conspiracy, The Adventures Of Tom Sawyer would have included a description of conservatives in public settings voluntarily precipitating discussions about Hispanics (or women, or gays, or blacks, or Asians, or Muslims, or . . .) instead of that bit about whitewashing a fence.

    1. Mark Twain would have *loved* people like you. I mean, he would love to have people like you to kick around when he was in one of his playful moods.

    2. How DARE academic lawyers talk about law, amirite?

      I mean, if it has anything to do with anyone who isn’t white and Christian or Jewish.

      Only good people of appropriate groups with the right views can talk about those people, right?

      GFY, Kirkland.

      1. you waste far to much of your “give a damn” quota, on a person of such small/absent intellect.

  6. Not sure of the point here.

    It’s a case from three decades ago when someone applied for benefits where they did not meet the qualifications.

    Or is it enough just to write “affirmative action” and then sit back and watch the teeth gnash and spittle fly?

    1. This 1987 case isn’t a historical relic since the same sort of arbitrary distinctions keep having to be drawn:

      https://reason.com/2019/10/28/on-spanish-people-and-affirmative-action/

      Why not use mockery against affirmative actio? Spittle-flecked indignation has its place, but how can supporters actually defend the arbitrariness of this system?

    2. “Not sure of the point here.”

      To show how stupid and arbitrary affirmative action racial classifications are and always have been.

      1. Really, it’s much simpler than that. Everyone, including many experts in the academic world, believe that ethnic/racial categorization for legal purposes is purely a matter of self-identification. Not true.

        1. What is an objective ethnic /racial categorization? Is there a legal definition of African American / Black? Or does it just follow the “one drop” rule?

          Gibraltar is an interesting case. If we accept that anybody from a Spanish or Portuguese speaking country is “hispanic” then if somebody from Gibraltar is not “hispanic” it could have diplomatic repercussions since Spain claims Gibraltar even if the British are currently control it.

          1. Being a cynic, I’d hazard that the legal definition depends to an extent on whatever the courts can settle on which does not put affirmative action itself in dispute.

        2. Of course its true.
          If a white couple lists their child as Negro, on a Kindergarten registration, who is going to prove that wrong and by what standard? The schools refuse to ask of the students are US citizens, forcing the parents to prove race, is something administrators will never tackle.
          Hispanic is not a race, it’s a culture. The town I live in is more that 40% of Mexican, Central, South American, Spanish speaking. Within families it is impossible, by visual cues to tell them apart from those of European dissent.

        3. […] ethnic/racial categorization for legal purposes is purely a matter of self-identification.

          Nah.

          How others perceive you has always been a big part of it.

          For example, if someone throw you out of their restaurant for being a wetback, it doesn’t actually matter if you’re from Spain or Mexico, you still suffered anti-Hispanic discrimination.

          Heck, that whole case-line about how firing for stereotypes (and not meeting them) was premised on how discrimination can be based not on what you are, but how people perceive you are (or should be).

          How you identify is part of it, sure. But how others perceive you is also an important part.

    3. ‘watch the teeth gnash and spittle fly?”

      Its just pointing out how you guys havent considered how your ‘benign’ racial discrimination will play out in a truly ethnically diverse society where major positions begin to be divvied out on the basis of ethnic spoils and grievance politics.
      There is no good justification for these policies. It harms institutional integrity and (often) even its supposed beneficiaries (mismatch)

      1. Magnifying the margins doesn’t prove much about the general function of a policy.

        Neither does your own dislike of it.

        I’m skeptical of affirmative action as focused on race (I think I prefer class/background generally), but the way things on this blog often end up evolving to either ‘you’re forcing me to be racist’ or ‘the Bell Curve was right!’ makes me think maybe we do still have some work to do on racism specifically.

        1. Its not my personal dislike of it.

          Look at Richard Sanders work for an intro to mismatch (eg: # of black law students at bottom of class and who never pass bar).

          Look into the “diversity-validity” tradeoff for AA’s impact on institutional integrity/performance.
          More: https://jacobitemag.com/2017/08/10/a-question-of-merit/

          I am not arguing that these edge cases prove the policy unworkable. What I was saying is that in our soon-to-be truly multiethnic society, AA will turn into a divisive political patronage system. There are few compelling arguments in defense of AA other than owning the cons.
          Also, 2019 America isnt the racist hellscape you believe (desire) it to be, so I think we are fine

          1. I’ve seen the work about affirmative action and passing rates. The thing is, while it’s a headwind it isn’t enough to counteract the net positive outcome.

            Your linked article seems to be more partisan screed than substantive argument, and spends more time arguing from authority (Quilette? Really) than discussing it’s own thesis, which is that the Bell Curve is legit.

            I mean, Oy.
            Progressive science is the academic wing of blank-slatist ideologues, providing a patina of scholarly respectability for their ideas
            This reads like satire of an idealogue trying to sound academic.

            Count me in the IQ isn’t real camp. It’s correlated with a bunch of success metrics, but causality is proving quite difficult for those trying to argue that the playing field is fair.

            1. ” while it’s a headwind it isn’t enough to counteract the net positive outcome” Nice unsupported assertion. The windfall really swamps out the mismatch, performance decrease etc.?

              I referenced empirically backed concepts (vast literature supporting it) and in return you just snark it up

              IQ is one of the most well-replicated constructs in psychology, feel free to go out on a limb (without any support whatsoever) though. Iq has held up in adoption studies etc. Iq is more predictive than SES and studies have consistently ruled out whatever Ad hoc explanations lefties come up with (implicit bias, stereotype threat etc.)

              Its bizarre how much mental contortion (and in California and similar states where referenda prohibiting AA are in force evasion of the law) Woke Folk will do in order to preserve their regime of racial discrimination.

            2. “The thing is, while it’s a headwind it isn’t enough to counteract the net positive outcome.”

              Its astonishing how certain people are so sure of the absolute moral superiority of their positions that they feel license to make bold unsupported statements of this nature.

              1. Are you trying to argue that blacks would have better graduation rates without affirmative action? Because if you want to talk about bold unsupported theses.

                Anyhow, enjoy your ‘blacks are genetically dumber’ world. I’ve learned that posting the many, many criticisms of that finding, and of the essentialism of IQ as a metric, don’t go far with you folks.

            3. Sarcastro wrote: “Count me in the IQ isn’t real camp.”

              And they call themselves the party of science…..

              1. Yeah, pointing out correlation isn’t causation is truly magical thinking.

                Did you look up how IQ was created? It wasn’t in a lab!

              2. Also, check out where the scientific consensus is. Hint: it’s not on the ‘IQ is real, and blacks have less of it’ camp.

    4. Systems of nobility don’t work, in part because they’re inherently unjust but mostly because people, quite rationally, game the system to try and be part of the nobility. Our current era of race-based nobility is no different. Pointing out the irrationality of the current political system is always worthwhile.

      1. Are you arguing that Blacks are the nobles of our political system??

        These threads bring out the craziest theses.

        1. The government and private institutions dole out special privileges and rights based on lineage, which are numerous in form– employment opportunities, university admissions, government contract, loans, and so forth. The only way for those not in the lineage to gain those rights is to marry into it, or to go to court and litigate that they’re actually part of the favored lineage because (reason), as this cop unsuccessfully attempted to do. The only thing that really distinguishes this from nobility is that we don’t use the word nobility.

          1. Weird how the outcome is more like whites are in all the power spots the vast majority of the time, particularly on the right side of things.

            Keep trying to push your aristocracy thesis. Sure to win friends and influence people.

        2. Christ, its a metaphor and it works really well. Nobility, as in a place in society dictated by genetic lineage.
          Exactly what this example represents. A man claiming a place in society determined by his genetic lineage.

          1. Yeah, it’s telling you think that’s what aristocracy looks like.

  7. I’m curious whether the Spanish government learned of this case. They think Gibraltar is naturally Spanish and should be returned to them. So if some court in the U. S. said Gibraltarians (?) aren’t hispanic, would this mean a diplomatic crisis?

    (OK, probably not, but I do wonder about the Spanish govt reaction if any)

  8. … wouldn’t that mean that someone with Mexican parents, born and raised in the US speaking English would be “not Hispanic”?

    Because if it’s “Spanish-speaking country and way of life”…

    (It is, of course, ludicrous.

    Because “Hispanic” is a ludicrous category when used like this – which wouldn’t matter at all if it wasn’t a gateway to Special Stuff People Want.

    If people want to help people from Mexico and Central America and their descendants, they should define the term that way, rather than “speaks Spanish and vaguely not Anglo or something”.

    cf. also “white Hispanic” for, you know, the wrong kind of “Hispanic”, when they’re inconvenient to the identity narrative.)

    1. More importantly, are Black people not Black if raised in Britain?

      1. Reminds me of a couple of engineers who used to work for me, that I’d bring around corporate bigots.

        “I’m not African American,” said the black guy, “I’m African. I’m from Nigeria.” And the white guy would add, “I’m the African American, I was born in South Africa and got my US citizenship last year.”

        Always fun to watch a bigots face when they hear that.

  9. King Juan Carlos is Hispanic we believe. I mean, as King of Spain, he must be. And of course, he is worthy of special affirmative action support, as are Julio Iglesias and Placido Domingo.
    Japanese Americans are the wealthiest ethnic group in the US. Are they also free to claim affirmative action aid?

    1. Being merely a pretty smart Japaneses American may keep you out of Harvard.

      1. Much like being black, female, or gay seems to be a general problem for anyone hoping to be nominated by Pres. Trump for the federal bench?

        (The silver lining is that the Republican Party’s association with old-timey intolerance is going to hit the gun nuts, anti-abortion absolutists, and those favoring endless privilege for religious claimants extremely hard during the next decade or so.)

  10. So, by extension, posting a flyer that says “IT’S OKAY TO BE GIBRALTARIAN” is a hate crime that will get you investigated by the FBI. Keep it to yourself whitey.

  11. Well, now.
    Since we have thrown out DNA as science, so that men can be women and women can be men just by saying so, perhaps it is time to reconsider this case.
    How can things like where you were born and raised, and what language(s) you speak, possibly outrank how you FEEL?!?!

    1. Yes gender is a social construct, but…race…like Hispanic is cooked in, or something

  12. Here is a fun game to play. Take any publication from Germany c. 1930’s and replace “Ayran” with “People of Color”. It will read just like a social justice warrior cranked it right off the presses yesterday. Fun times!

  13. Would the same issues apply to the child of someone born in the United States?

  14. The whole issue of proprietorial discretion is a smoke screen. DACA is an executive branch attempt to enact the Dream Act directly defying Congress which refused to pass the Dream Act. It is one thing to enforce or not enforce the law. It is something else to openly defy the law, including defiance of Congress’ rejection of a law.

    DACA defenders walk in the shoes of Judge Posner when he said:

    “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.”

    IMO, the Obama Administration, said “OK Congress, if you won’t pass the Dream Act, we will.”

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President Trump and DHS Secretary Dukes Made it (Nearly) Impossible to Defend DACA Rescission

SCOTUS can still uphold the rescission if it agrees that Attorney General reasonably concluded that DACA was unlawful

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In a 2017 letter, Attorney General Sessions concluded that the courts would likely find DACA illegal. Acting Homeland Security Duke relied on that legal determination (as she was bound to do by statute), and directed that that the program should be wound down. Neither the Attorney General's letter, nor the Secretary's letter, justified the rescission on any obvious policy grounds.

At the time, I struggled to understand this rationale: why would the administration handcuff DOJ's defense of the rescission? If the administration simply stated that the policy was no longer desirable, then most legal challenges would fail. (The administration still would have had to deal with 5th Amendment equal protection claims, but those counts were always a long shot.)

A new book sheds light on this quandary: "Border Wars: Inside Trump's Assault on Immigration," by Julie Hirschfeld Davis and Michael D. Shear. The authors, with Adam Liptak, published a new article in the Times that recounts the inner-workings of the DACA discussion.

Here is a brief summary. Immigration hardliners pushed President Trump to wind down DACA. But Trump was sympathetic to the Dreamers, and did not want to take responsibility for the decision. Instead, he pressured Attorney General Sessions to lead the charge. He concluded that the policy was unlawful, and the courts would likely enjoin it. Secretary Duke refused to argue that DACA was a bad policy. As a result, the entire case turned on Session's determination of DACA's legality–a question on which Duke was bound. And Sessions knew that this decision would make it very difficult to litigate the case.

Here are some of the excerpts from the article:

 When Attorney General Jeff Sessions appeared before news cameras at the Justice Department in early September 2017 to announce that President Trump was ending deportation protections for young undocumented immigrants, he knew the administration had left itself more legally vulnerable than it should have.

At a contentious meeting in the White House Roosevelt Room several days earlier, Elaine C. Duke, then the acting secretary of homeland security, had broken with the rest of Mr. Trump's team and balked at its demand that she issue a memo ending Deferred Action for Childhood Arrivals, the Obama-era program known as DACA that shields immigrants who were brought to the United States as children.

Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own. And she did not want her name on the policy rationales put forth by Mr. Sessions; Stephen Miller, the president's powerful immigration adviser; and others who argued that the program encouraged new waves of illegal immigration and was an undeserved amnesty.

She eventually relented under merciless pressure. But her refusal to cite their policy objections to the program is now at the heart of what legal experts say is a major weakness in the government's case defending the termination of the program, which will be argued on Tuesday at the Supreme Court.

The President's unwillingness to take a difficult stance, and the fact that he did not have a confirmed DHS Secretary in place who would follow his directives, has handcuffed DOJ throughout this entire process. Now, Andy Pincus explains that counsel for respondents have used these internal processes to shape their arguments.

Last week I noted that DOJ finally articulated what the "constitutional defects" were in DACA. This argument, our brief maintains, supports the Attorney General's reasonable conclusion that DACA was unlawful.

 

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  1. It’s a pretty terrifying statement about the judiciary, if “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

    But was anybody actually confused about this? Trump didn’t think DACA was a bad idea, he just thought it should have been done legally, though legislation. That’s a respectable position.

    And would they really want to have gone into court with a case based on the administration thinking DACA was bad policy, with Trump having made public statements about wanting Congress to legitimately enact it?

    1. “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

      It’s “We *think* this program will be found to be unconstitutional.” It’s perhaps a non-obvious, but important, distinction. Law is a careful thing.

      “Trump didn’t think DACA was a bad idea, he just thought it should have been done legally, though legislation.”

      Citation needed (cite specific legislation Trump has backed on this).

      1. Actually arguments about constitutionality are very serious. Potentially more troublesome are cases where the judges issue opinions on policy in the process of overriding the executive branch, when the judicial branch is given no such power. That’s why we have a democracy, to vote for people to create policy.

        At least two of the many border wall cases included a sentence, “And anyway I judge the administration’s policy as bad.” Importantly, not as a constitutional violation (e.g. animus), but as simple policy disagreement.

      2. With you on this one. I support him on his policy, but I think Trump’s position is to get DACA to be passed legally because he knows it won’t be. He wants to force the issue and get politicians to own up to the absurdity of legalizing ~1m and enabling mass chain migration and demographic replacement that will accelerate the decline of Constitutional governance and adherence to past principles.

    2. It’s a pretty terrifying statement about the judiciary, if “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

      When advancing legislation one must speak the language of legislators. The Supreme Court has decided that constitutional questions are useful only as a means to justify legislation.

    3. DACA, as implemented, is a bad idea. The proof required for whom was here prior to age 16, already too high a threshold, is too low, they don’t need to be productive by our modern economy’s standard, and there is no bar to their popping out “citizen” children who can then sponsor them at age 18.

    4. Trump didn’t think DACA was a bad idea, he just thought it should have been done legally, though legislation. That’s a respectable position.

      Bullshit, Brett. He did nothing to get it passed, just used it as a bargaining chi, and when he didn’t get everything he wanted he refused to back DACA. That’s not what you do with something you think is a good idea.

      Frankly, I doubt he gives a ff about DACA either way, since neither empathy nor rule of law seem to have the slightest importance to him. He saw it as useful for bargaining, maybe, and also as something he could oppose to rile up the bigots.

      1. Trump has this weird idea that the legislature’s job is legislating.

        1. No he doesn’t.

          He’s not a lawyer or political scientist with nuanced views of how government ought to function and all sorts of procedural rules he holds dear.

          He has demonstrated no reluctance to issue executive orders.

          I understand you’re enamored of the man, but I would have thought you had some limits.

          1. Yes, I realize that you think he’s some kind of lumbering, mindless animal, who just stumbles from victory to victory through the sheer power of his awfulness. I won’t bother pointing out again the remarkable irrationality of that view of the man.

            Yes, of course Trump issues executive orders. That’s how Presidents, all of them, do things. They want Iraq invaded, they order it done, they don’t grab an assault rifle, and start running towards Iraq shouting, “Follow me, boys!”.

            What he has demonstrated a reluctance to do, is to try to do Congress’ job of legislating for them.

            1. “Victory to victory.”

              What are these glorious victories?

              Getting a tax cut through a Republican Congress? Yeah, that’s a steep hill. You or I could manage that in our sleep.

    5. It’s a pretty terrifying statement about the judiciary, if “This program is unconstitutional” is a weaker argument than “This program is a bad idea.”

      Josh isn’t doing the peanut gallery any favors here by describing the arguments in the highly misleading way that he has. But suffice it to say that none of this is due to an issue with the judiciary. These arguments stand/fall according to legislation that binds the executive’s ability to create and rescind administrative regulations. It is, in other words, just the judiciary following duly-enacted law.

      So, first of all: the DOJ isn’t arguing that DACA is unconstitutional. The DOJ is arguing that DACA was not within the president’s authority to implement, under applicable statutes. The reason the DOJ is not arguing that DACA is unconstitutional is because doing so would amount to constraining the president’s constitutional authority to do any number of things, like regulate (or selectively deregulate) immigration, drugs, carbon emissions, and so on.

      Second: arguing that DACA was not statutorily authorized could be a perfectly valid basis for rescinding DACA… if it is the case. That’s the weakness here. Courts feel no reluctance to come to their own legal conclusions about what the law says or authorizes, so if it turns out that DACA is within the president’s authority, in the courts’ view, then Sessions’ argument falls completely apart.

      Third: The reason all of this matters is that the APA limits the president’s authority to just change regulations on a dime. We have a system of laws, not of men, after all. The president can rescind policies he doesn’t like, but he has to explain why he is doing so, and explain how doing so is consistent with his obligations to see to it that the law be faithfully executed. So if he wants to rescind DACA because it’s not authorized, he has to make that case. If he wants to rescind it because it’s bad policy, he can make that case, instead.

      So, finally, the reason why it would have been easier to defend the DACA rescission by describing it as “bad policy” is that the courts would give the president a fair amount of leeway for making that assessment. That would no longer be a pure question of law – i.e., is DACA statutorily authorized – but rather one of fact and policy that the courts generally view as within the president’s fairly exclusive purview. The president could say, “DACA encourages immigration,” and as long as that’s supported by some kind of plausible evidence, it would carry a certain weight in the courts.

      1. “So, first of all: the DOJ isn’t arguing that DACA is unconstitutional. The DOJ is arguing that DACA was not within the president’s authority to implement, under applicable statutes. ”

        Rather, they are arguing that DACA, the actual program created by executive fiat, is unconstitutional BECAUSE it wasn’t within the President’s authority implement under applicable statutes. Even if it would have been constitutional if enacted by Congress.

        “Courts feel no reluctance to come to their own legal conclusions about what the law says or authorizes, so if it turns out that DACA is within the president’s authority, in the courts’ view, then Sessions’ argument falls completely apart.”

        No, both the courts and the Executive have independent obligations to assess the constitutionality of actions, and if the Executive concludes an action is unconstitutional, and it is discretionary rather than mandated by statute, the fact that the courts have a more expansive view of Presidential authority than the President can’t obligate him to violate his oath of office.

        Only if DACA was statutory in nature, would the courts concluding it was also constitutional invoke the President’s take care obligation, forcing him to implement it over his own misgivings.

        Finally, if a program isn’t properly driven by statutory law, but instead represents a decision by the executive to implement a law Congress refused to pass, it’s questionable whether the terminating it actually falls under the APA, which applies to lawful programs, not usurpations of power.

        1. Rather, they are arguing that DACA, the actual program created by executive fiat, is unconstitutional BECAUSE it wasn’t within the President’s authority implement under applicable statutes.

          You’re just really committed to confusing the issues here.

          No, both the courts and the Executive have independent obligations to assess the constitutionality of actions,…

          The courts have an obligation to ensure that the president, when revoking regulatory actions, abides by the APA, to the extent it applies. In order to rescind DACA, under the APA, the president must provide a basis for doing so that is not “arbitrary and capricious.” The only rationale the president has so far provided for rescinding DACA is a purely legal one – that DACA was never statutorily authorized in the first place. The courts will not defer to the president’s judgment on that, because it is an inherently legal question. However, had the president made a more factual or policy-based argument, he would have been granted more deference, and may have succeeded.

          Finally, if a program isn’t properly driven by statutory law, but instead represents a decision by the executive to implement a law Congress refused to pass, it’s questionable whether the terminating it actually falls under the APA, which applies to lawful programs, not usurpations of power.

          This is completely circular.

          I’d forgotten why it is completely futile to even try to engage you on these questions.

  2. DACA, amnesty, and free health care for illegals are tools of the left to destroy America with socialism. We have 30 million illegals filling our roads, schools, hospitals, and prisons. Trump could fix this with an executive order today directing the DOJ to charge employers of illegals under the RICO Act and fine them one million dollars and one year in federal prison for each illegal employee.

    1. “DACA, amnesty, and free health care for illegals are tools of the left to destroy America with socialism.”

      Indeed, it’s part of *their* plan which also involves a fleet of black UN helicopters!

    2. Yes, and the damage is already irreversible. We need a Constitutional amendment to strip everyone granted citizenship under the 1965 Immigration Act of that citizenship.

      1. That’s silly. For all the demographic transformation caused the the 1965 Act, this nation’s problems are almost wholly caused by white liberals.

        1. Yes, the generals are white liberals, and their third world voters are the foot soldiers.

          1. Good luck on getting that amendment ratified…when many of the post 1965 people are voters, along with their kids and grand kids. Pie in the sky stuff there.

            1. It won’t get ratified without a civil war. Much the way the 14th Amendment was ratified.

              1. And remember what happened to the 14th amendment after the southern states got to vote again? Rendered moot by a bad Supreme court decision for generations.

                The basic problem with saying we’d ratify it after a civil war, is that as soon as you go off a war footing, and try to return to peacetime, everything gets crazy again.

                I think a civil war is coming, sooner or later, but I don’t expect to like what the US looks like after it, even if my side wins. The left might lose, but they wouldn’t stop being present.

                1. What’s the connection between Slaughterhouse and southern states voting again? I admit I’m ignorant on this point.

                  But yes, I agree with you generally. The hope would be that, if my side wins, the traditionalist conservatives recognize the mistakes of the past and don’t start the problem anew by letting women vote, pretending that all races are equal in ability and temperament, and so forth. Otherwise, the only solution is either separation or mass extermination.

                  And the problem with mass extermination is that the people willing to engage in aren’t going to be willing to be benevolent after the fact

                  1. The Supreme court is downstream of the elected branches, it’s incapable of maintaining a position the elected branches aren’t, on some level, comfortable with. Even controversial rulings like Roe or Obergefel tend to survive because members of Congress approve of them, and merely pretend to object for public consumption.

                    The Reconstruction amendments were ratified while the Southern states were still in a state of occupation, and particularly the 13th and 14th were not freely ratified in the South. If this state of affairs had continued, the Slaughterhouse decision could have been overturned by a new constitutional amendment, and the votes would even have been available to change the composition of the Court by impeachment to deter a repeat.

                    But by the time of the Slaughterhouse decision, the Southern states were starting to get out from under military occupation, and had enough political clout to protect the Slaughterhouse Court, and make sure no new amendments could be originated or ratified.

                  2. Are you actually advocating civil war? If so, what is the max number of lives you are willing to expend on the chance that your side prevails? Five million? Thirty million? Fifty million? More?

                    1. No, I’d much prefer to peaceably separate. But the left won’t let the right go, as the left knows that the right produces everything. And if the choice is civil war or living as a chattel slave, then yes, I’m advocating civil war, and as far as the number of lives, that’s always in the choice of the aggressor.

                    2. Basically what RWH is saying here, though we don’t always agree.

                      I don’t *want* a civil war. Nobody wins a civil war, some people just lose it worse.

                      But if the left won’t permit anyone a separate peace, if the only thing they’ll settle for is total victory, what alternatives are there but war or subjugation? It’s not like the left is, for instance, allowing the right its own institutions. Gab got deplatformed and forced into the dark web, every baker has to bake the cake, the Sisters of Mercy have to pay for birth control…

                      And it’s not like the left has some pre-defined program that you might think will chafe a bit, but you could tolerate. The left has a progressive program, a constantly moving target. You can’t say, “Well, OK, I guess I can stomach this, though I don’t like it.” because tomorrow they’ll hit you with something new and worse.

                      It’s either agree to submit to a blank check, or fight. So it’s ultimately going to come to a fight, much as I hate it.

                    3. Right. With respect to the gaystapo, first it was “Don’t arrest us for sodomy.” Then it became “Let us get civil unions so we can visit our ‘partners’.” Then “We deserve full marriage rights.” Then “Bake us a cake, or else.” These people will never stop until the West is destroyed.

                  3. I remember Falling Down, where people asked if you were supposed to feel a catharic rush as Michael Douglas resists the stupidities of modern society.

                    But it becomes apparent as the movie unfolds he is going further than that.

                    Anyway, at one point some guy hides him from the police, and shows him his Nazi souvenir room, and wonders rhetorically how many Jews do you think this (empty can of) Zyklon B killed.

                    Douglas gets pissed off, this isn’t what his anger is about at all, and trashes the place, another scene of wreckage on his descent.

                    I think it’s more than just wacky web site opportunists leaping onto Trump here. I think it’s trolling as well. Someone, for political reasons, is trying to associate in the mind any Trump support with Nazi support to discredit by toxic association.

                    I have no proof. It just seems off.

                2. Are you suggesting that things would have been just hunky-dory for blacks in the South had the 14th Amendment not been adopted?

                  You sure do bring this up a lot.

                  1. I don’t know where you get that from.

                    Look, regardless of whether you think the 13th and 14th amendments were good ideas or not, the objective, historical truth is that the Southern states ratified them at gun point. Literally in some cases, actual armed soldiers present on the legislative floor while they held the vote.

                    That historical fact doesn’t magically vanish just because you think they were good amendments.

                    My point here is that if good triumphs over evil by force of arms, and doesn’t actually KILL evil, evil remains. And if this happens within a democracy, and the democracy is at some point going to end the state of war and return to being a functioning democracy, (Rather than just pretending it is, as during Reconstruction.) at some point evil gets a vote.

                    So a civil war in a democracy doesn’t really settle things the way you might think it would, as Jim Crow after the Civil war demonstrates.

          2. the generals are white liberals, and their third world voters are the foot soldiers

            Oh, dear, it looks like you’ve stumbled into another antisemitic trope. Strange how often that happens to people like you!

            1. Come again?

              1. Just switch the demographics a bit:

                African-Americans and other minorities are the tools used by the so-called “Jewish puppeteers” to unseat the white race from the proverbial throne, white nationalists believe.
                https://www.ajc.org/news/after-poway-pittsburgh-synagogue-shootings-heres-what-jews-need-to-know-about-white-supremacy

                Google ‘blacks as tools of the Jew’ or something like that for more.

                1. By your standard, no one can ever be accused of being a tool of anyone else.

                2. A puppetmaster group using minorities as their footsoldiers doesn’t come up that often.

                  Except for you and white supremacists.

    3. I like the idea of focusing on employers, but I also want to highlight this posters’ filling our roads, which is some pretty good crazy.

  3. Article starts out with a false premise. Trump wasn’t sympathetic to the Dreamers, as much as he was using them a bargaining chip to get Dems in Congress to provide funding for the wall or other immigration reforms.

    1. True.

      And in typical fashion, when his counterparties thought they had a deal, he welshed.

      1. Is that how you frame it? One should always be ready to walk away anyway. The Dems blanched on funding the wall, but they were willing to give some sort of deal that left the door open to amnesty.

        1. The Democrats offered $25 billion in border security funding in exchange for a 10-12 year path to citizenship for Dreamers.

          Trump and Schumer disagree over whether Trump took the deal. Regardless, Kelly later called Schumer to tell him it was not acceptable.

          One should always be ready to walk away anyway.

          From a negotiation, but not from what one has already agreed to.

          1. Border security funding that didn’t include the wall.
            And it’s not a deal until the ink is on the paper, thus it was a still a negotiation.

          2. “$25 billion in border security funding”

            Not funding [i.e. actual appropriation] but authorization [i.e. a promise to pay subject to future appropriation]. In other words, illusory.

            1. The usual: Amnesty today, enforcement tomorrow.

              Nobody who actually wants the enforcement has fallen for that scam since the Reagan amnesty.

      2. Bernard, I have kin from Wales, and so, object.

        1. I was kinda wondering when that response would show up. At least he didn’t say that the Dems tried to “Jew him down” over the cost of the wall.

          1. I am fairly sure that BrotherMoves was being sarcastic, as was I. But then again, this is the internet.

            1. Maybe. Just trying to be polite.

              1. Both Kalak and Sarcastr0 are correct,
                and your response appreciated.

            2. Didn’t cost Bernard anything, so why not err on the side of courtesy?

            3. That’s very kind, though I believe the complaint about “welsh” was pure trolling. If I’m wrong correct me.

              1. And do you know what “reneged” sounds like? If you’re really sensitive to dog-whistles, I mean?

              2. Could be, Eddy.

                If so, it wasn’t either the first or last time I got fooled.

  4. It is fairly obvious that DACA esque policies encourage illegal immigration as people see that there are seldom any consequences for violating the law. Incentives matter.

    Now not only is there an absence of consequences but the potential to reap great rewards, perhaps even more than actual citizens! The frontrunners in the democratic party are promising free social services to anyone who comes over.

    This would be remarkable if one hadnt been following their electoral strategy over the last several decades. They can zip it about basic voter id requirements being suppression when they are literally trying to permanently disenfranchise large portions of the population

    On the DACA issue specifically, while these particular individuals may be sympathetic, if you dont enforce the law here I dont see when you start to

    1. Right. The demographic tipping point has already been reached in Virginia, and will be in North Carolina and Florida soon too. Now you know why I eagerly await the civil war that is coming.

  5. Trump is weak on DACA and immigration.

  6. I don’t understand why the administration’s opinion of the constitutionality of the prior policy matters. From the courts’ point of view, the only issue is new administration, new policy. The Executive can obviously take care that the laws be strictly enforced. Whether or not the Obama administration ever had the prosecutorial discretion to relax enforcement as much as it did, surely the Trump administration has discretion to tighten it.

    Whatever one thinks of the policy here, this matter isn’t the courts’ business. And courts shouldn’t grasp after red herrings and irrelevant opinions to try to take control of something that isn’t their business.

    I argued DACA was within the Obama administration’s discretion at the time. But the same discretion lets the Trump administration end it if it wants. That should end the matter so far as the courts are concerned.

    1. According to the OP, the administration did not want to make that argument.

      Elaine C. Duke, then the acting secretary of homeland security, had broken with the rest of Mr. Trump’s team and balked at its demand that she issue a memo ending Deferred Action for Childhood Arrivals, …..

      Ms. Duke was deeply bothered by the idea that she could be responsible for deporting hundreds of thousands of young people from the country they considered their own. And she did not want her name on the policy rationales put forth by Mr. Sessions; Stephen Miller, the president’s powerful immigration adviser; and others who argued that the program encouraged new waves of illegal immigration and was an undeserved amnesty.

      She eventually relented under merciless pressure. But her refusal to cite their policy objections to the program is now at the heart of what legal experts say is a major weakness in the government’s case…..

      1. “deeply bothered by the idea that she could be responsible for deporting hundreds of thousands”

        Then she should have resigned.

        Another bureaucrat with delusions of grandeur, like so many currently conspiring against Trump. Swamp indeed.

    2. I thought DACA conferred a legal ability work and receive other benefits. If so, then perhaps that goes beyond prosecutorial discretion?

  7. she did not want her name on the policy rationales put forth

    Given the left regularly engages in violence against people who have different policy ideas than them, is this really surprising?

  8. Given that Obama himself once argued that the didn’t have the power to enact a DACA-style executive order, this argument seemed like a safe bet.

    However, the whole issue is moot anyway. Bottom line is, if Obama had the power to enact it, Trump has the power to rescind it. If Obama didn’t have the power to enact in the first place, then it’s automatically rescinded. Either way, no DACA.

    1. I think you are correct if the administration had made a policy argument as to why they were rescinding DACA. But as this post points out, they didn’t make that argument. Instead, they put all of their eggs into the “DACA wasn’t legal in the first place” argument.

      1. The constitutional argument IS a policy argument, in a way: The executive branch have an independent obligation to assess the constitutionality of policies, and they aren’t obligated to pursue a (Discretionary) policy they think unconstitutional just because the courts think it’s OK.

        1. The constitutional argument IS a policy argument, in a way

          The opposing argument seems to be that Trump’s order rescinding DACA will be struck down as arbitrary and capricious if the reason given is objectively false, and the lower courts determined that the reason given (illegality) is objectively false.

          1. During the Trump era, leftist judges have intercepted “arbitrary and capricious” to mean “anything the judge doesn’t like.”

  9. The referenced Andy Pincus article says that “the best legal course for the Administration would have been to issue a new agency decision based on the exercise of policy discretion” but that they didn’t want to do this because “it would require the Administration to take responsibility for eliminating DACA, and prevent it from invoking the blame-shifting argument that the Obama Administration put in place an unlawful program,” DACA being popular with both Democrats and Republicans. Also, “a new policy rationale would have undermined all of the prior statements by President Trump and others claiming that they wanted to protect DACA recipients but needed Congress to act in order to do so.”

    So why not base the policy argument on the president’s belief that it is bad policy for such an action to be taken by executive order because such actions should be done by legislation, and that in the president’s opinion rescission of Obama’s executive order provides exactly the stimulus necessary to break the logjam in Congress? Maybe an approach like this will be followed if Trump loses in the Supreme Court. I’m not sure I buy the argument that the rationale previously given (illegality of the executive order) convinced any supporters of DACA that Trump’s desire to keep DACA in place is unconditional. Everybody knows that he’s willing to keep it only in exchange for other immigration law concessions.

    1. Actually, it appears that this argument was made in the government’s petition for cert under the heading “The rescission is reasonable in light of DHS’s additional and independent policy concerns”:

      Those reasons include the agency’s determination that (1) “DHS should enforce the policies reflected in the laws adopted by Congress and should not adopt public policies of non-enforcement of those laws for broad classes and categories of aliens under the guise of prosecutorial discretion”; (2) “DHS should only exercise its prosecutorial discretion not to enforce the immigration laws on a truly individualized, case-by-case basis”; and (3) “it is critically important for DHS to project a message that leaves no doubt regarding the clear, consistent, and transparent enforcement of the immigration laws against all classes and categories of aliens,” especially given that “tens of thousands of minor aliens have illegally crossed or been smuggled across our border in recent years.” App. 123a-124a. Respondents may disagree with these assessments, but they cannot be dismissed as irrational.

      If the respondents are able to convince the Supreme Court that this rationale should not be considered since it was not presented originally, they’ll probably start over with this as the primary rationale.

  10. My side won the culture war but still isn’t done vanquishing conservatives. AMA

    1. You really haven’t.

  11. Ok, Ok, I’m starting to wake up and smell the coffee and get what this about. It’s about Department of Commerce v. New York, right?

    The Administration indeed gets to change policy if it wishes to. But the APA requires it to state its reason for doing so, and Department of Commerce v. New York says the courts will hold the administration to the reasons it stated.

    Why is prosecuratorial discretion even subject to the APA? If a prosecutor gives written reasons for not prosecuting someone, does he then have to prosecute if the courts think those aren’t his real reasons or they aren’t good enough?

    1. Individual prosecutorial discretion wouldn’t be subject to the APA. The problem is that DACA wasn’t individual prosecutorial discretion. It was systematic, organized prosecutorial discretion implemented as a formal program.

      And formal programs are subject to the APA, even if using the APA to tell a President he can’t stop doing something he thinks the previous President was violating the Constitution by doing seems a bit questionable.

      The obvious point that has to be made is that the APA should apply to formal programs created pursuant to enacted law, not created in defiance of it.

      1. But the basis for the legality of Obama’s policy, his authority to enact DACA, arose from prosecutorial discretion. He wasn’t interpreting the statute. He was exercising discretion to sometimes ignore it. Why does formalizing a discretionary function change it?

        If a president uses a formal procedure to decide what church to go to, that obviously doesn’t bind future precedents. The procedure and written policy would be surplussage, window dressing, legally irrelevant, a meaningless piece of paper.

        Why is this different? Why is having a formal written prosecutorial discretion policy legally different from making the same set of prosecutorial discretion decisions individually? What gives presidents the right to bind their successors’ discretion just by writing their thoughts down and going through certain formal rituals? If the subject isn’t APA material in the first place, Merely going through APA-like rituals doesn’t turn it into APA material.

        In enacting the APA, Congress didn’t intend to create a cargo cult.

    2. According to the government, the APA precludes review of agency actions that are “committed to agency discretion by law,” resulting in a presumption of nonreviewability. They cite the Supreme Court in ICC v. Locomotive Eng’rs for the proposition that an otherwise unreviewable agency action does not “become reviewable” because “the agency gives a ‘reviewable’ reason.” In that case, the ICC’s decision not to reconsider a prior decision was therefore unreviewable, even though the agency based that denial on an interpretation of its legal obligations under the Railway Labor Act. The Supreme Court included among agency actions “committed to agency discretion by law” the discretion to find “facts and interpret statutory ambiguities.”

  12. The Court should ask the basic question: Are the immigration statutes constitutional? If so, DACA is *not* constitutional, since it undercuts enforcement of constitutionally-valid statutes. What happens to taking care the laws are faithfully executed? It says “faithfully” not “fitfully.”

    1. When, in 1986, the Supreme Court upheld consensual sodomy laws in Bowers v. Hardwick, it noted that prosecutions for conduct in private homes had been very rare in the previous several decades. Was every local prosecutor who didn’t prosecute during this time in violation of the constitution, since this action undercut the enforcement of constitutionally valid statutes?

      1. I can’t speak for all prosecutors, but I expect they had difficulty proving what happens in private homes between adults – the Hardwicke case only came up when the cop concocted an excuse to barge into the guy’s apartment for unrelated reasons. The Lawrence case was the cops responding to a false fire alarm.

  13. Professor Blackman,

    There’s a very good reason the Trump administration is making this argument, and it’s because of the future.

    It’s without a doubt that if the Trump administration chose as a policy matter to end DACA, they could do so. A short series of memos describing why, as a policy choice, they believe DACA to be a bad policy, would be very effective. However, there’s a problem with this strategy. The problem is, any future administration could reverse course, and now say DACA is a good policy, and reinstate DACA.

    However, a Supreme Court decision saying that such a broad, sweeping policy was unconstitutional would have rather more long-lasting effects. Then a future administration would not be able to reinstate DACA by executive order. It would need to be a law. By upholding a policy that it needs to be discontinued because it’s unconstitutional, it effectively ends DACA until a law is done.

    Furthermore, on the off chance that the Supreme Court says “yep, no constitutional issue here”, Trump and company can then look at the issue again, and make a policy decision if they want to stop DACA. (As a “bonus” if DACA was ruled constitutional for some reason in its broad, sweeping form that takes in hundreds of millions in revenue and allocates it, all without any Congressional law, well, I suppose that revenue could be reallocated towards building a wall. Right?)

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Today in Supreme Court History

Today in Supreme Court History: November 11, 1975

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11/11/1975: Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. argued.

The Burger Court (1975-1981)

Today in Supreme Court History

Today in Supreme Court History: November 10, 1975

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11/10/1975: Buckley v. Valeo argued.

Senator James Buckley

Communism

Reflections on the 30th Anniversary of the Fall of the Berlin Wall

A happy occasion - but also one with lessons that remain urgent today.

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The fall of the Berlin Wall, 1989.

Today is the thirtieth anniversary of the fall of the Berlin Wall. It is undeniably a happy occasion—not only because the fall of the Wall was good in itself, but because it presaged the collapse of communist tyranny throughout Eastern Europe and the Soviet Union. But the history of the Wall also carries some important lessons that we have not fully learned even today—lessons about the nature of communism, but also about the importance of freedom of movement across international boundaries.

Most of what I wrote on the twentieth and twenty-fifth anniversaries of the fall of the Wall remains relevant today, and much of what follows is adapted from those earlier posts:

In several ways, the Wall and its collapse are fitting symbols of communism. They demonstrate several truths about that system that we would be wise not to lose sight of. First and foremost, Cold War-era Berlin was the most visible demonstration of the superiority of capitalism and democracy over communism and dictatorship. Despite the fact that East Germany had one of the highest standards of living in the Soviet bloc, it had to build a wall to keep its people from fleeing to the capitalist West. By contrast, West Germans and other westerners were free to move to the communist world anytime they wanted. Yet only a tiny handful ever did so. Decisions to "vote with your feet" are often better indicators of peoples' true preferences than ballot box voting, since foot voters have better incentives to become well-informed about the alternatives before them. Even more powerful evidence is the fact that many East Germans and others fled communism even when doing so meant risking their lives.

Second, the Berlin Wall was an important symbol of the way in which communist governments violated the human right to freedom of movement, one of the most important attributes of a free society. If people are forcibly trapped under the rule of the government in whose territory they happen to be born, they are not truly free; rather, they are hostages of their rulers.

Finally, the sudden collapse of the Berlin Wall in 1989 vividly demonstrated the extent to which communist totalitarianism relied on coercion to maintain its rule. Some Western scholars and leftists contended that most Russians and Eastern Europeans actually supported communism or at least preferred it to the available alternatives. The events of 1989 gave the lie to this notion. Once the Soviet government and its puppet states in Eastern Europe signalled that they would no longer suppress opposition by force, the Berlin Wall was quickly torn down, and communist governments throughout Eastern Europe collapsed within months.

Despite all of the above, I am somewhat conflicted about the status of the Berlin Wall as the symbol of communist oppression in the popular imagination. My reservations have to do with the underappreciated fact that the Wall was actually one of communism's smaller crimes. Between 1961 and 1989, about 100 East Germans were killed trying to escape to the West through Wall. The Wall also trapped several million more Germans in a repressive totalitarian society. These are grave atrocities. But they pale in comparison to the millions slaughtered in gulags, deliberately created famines, and mass executions of "kulaks" and "class enemies."

The Berlin Wall wasn't even the worst communist atrocity in East Germany. As historian Norman Naimark has documented, Soviet occupation troops in East Germany raped some 2 million German women, executed thousands of political prisoners (only a minority of whom were Nazis or guilty of war crimes), and imposed extensive forced labor on much of the population. It is true, of course, that German troops committed comparable, and often even greater, atrocities in the USSR. But the one set of wrongs in no way justifies the other. Forced labor and concentration camps continued on a substantial scale even after the Soviets established an "independent" East German state in 1949.

Terrible though the Berlin Wall was, focusing on it as the main example of communist injustice may actually lead people to underestimate how awful that system truly was. It is a bit like portraying Kristallnacht or the Night of the Long Knives (both atrocities had death tolls roughly comparable to that of the Berlin Wall) as the main example of Nazi oppression, rather than the Holocaust.

It is right to commemorate the fall of the Wall, and to mourn its victims. But we should also remember that it was just the tip of a much larger iceberg of communist oppression. Indeed, those other oppressive policies were the main reason why so many Germans (and others) sought to flee communism in the first place. The true lesson of the Berlin Wall is not merely that the Wall itself was unjust, but that it was meant to perpetuate other, far more severe injustices by making it impossible to escape them. That lesson remains relevant today, as socialist dictatorships continue to oppress millions in Cuba, North Korea, and Venezuela.

In western nations, the lessons of the Berlin Wall also remain relevant because of the way "democratic socialism" has gained ground in recent years. While most of its advocates do not want to go as far as the communists did, the two ideologies nonetheless share a great deal of dangerous common ground.

In addition to overlooking the broader significance of the Wall for the nature of communism, too many people are also inclined to ignore its broader implications for the value of international freedom of movement.  For millions of people around the world today, like for East Germans until 1989, international migration is the only realistic way to escape a lifetime of poverty and oppression. Yet governments—including those of liberal democracies—routinely use coercion to stop them from "voting with their feet."

That coercion sometimes includes literal walls—like the one President Trump hopes to build on the US border with Mexico—and brutality like that which is all too common at immigration detention centers right here in the land of the free.  To top it off, building Trump's wall would require seizing the property of thousands of Americans who live along the border—a disdain for private property rights that the communist rulers of East Germany would surely find congenial.

Many try to differentiate Western immigration restrictions from the Berlin Wall on the grounds that there is a crucial difference between locking people in their homeland, and locking them out from some particular destination. Alternatively, it could be argued that East Germans were trapped in a more oppressive system than most migrants today. But these distinctions break down upon inspection. I summarized some of the reasons why here:

[Some] argue that there is a distinction between locking people in completely and "merely" preventing them from leaving for a specific destination (such as the US). But surely we would still condemn the Berlin Wall if the East German government had said its purpose was to block its citizens from moving to the West, but they were still free to leave for other communist nations. As a practical matter, moreover, the US border is Mexico's longest and most significant land boundary, by far, and blocking exit rights through that border is a major restriction on Mexicans' ability to go anywhere by land.

Another possible distinction between the two cases is that East Germans were locked into a far more oppressive regime than Mexicans would be. But Mexico's corrupt and often deeply unjust government is far from wonderful, and being confined there would force many potential migrants to endure what may well be a lifetime of poverty and exposure to violence. Moreover, the right to exit is not limited only to citizens of the most oppressive regimes. If Canada or the United States were to block their citizens from leaving, that would surely be a gross violation of human rights, even though Canada and the US are substantially freer and wealthier societies than Mexico. Forcibly confining people to the US or Canada is less unjust than confining them to Mexico. But it would be a grave injustice nonetheless.

Another possible way to justify the distinction is to analogize national governments to private homeowners or clubs, who have the right to keep people out for virtually any reason they want. But that theory has deeply illiberal implications for natives, as well as potential immigrants. If taken seriously, it would justify giving government almost as much totalitarian control over our lives as the government of East Germany once wielded over its people.

Economist Bryan Caplan has some additional criticisms of the distinction between "locking in" would-be migrants and "locking out." Among other things, he explains how the East German policy could easily have fallen within the latter category, if the communists had been willing to make a few modest modifications. Ultimately, both types of policies represent massive coercive government intervention to prevent people from taking advantage of opportunities offered by free markets and civil society.

I would add that some of the people forcibly kept out by US and other western nations' immigration policies are indeed fleeing East German-like levels of oppression. Consider, for instance, Venezuelans fleeing the horrifically oppressive socialist government of that nation, or Cuban refugees fleeing communism, who are now often barred from staying in the US, thanks to a cruel policy reversal by President Obama, which Trump has kept in place.

The oppression facilitated by Western governments' immigration restrictions is, at least in most cases, not nearly as great as that perpetuated by the Berlin Wall. But the two injustices are nonetheless similar in kind, even if—usually—different in degree. Our governments' policies are not nearly as bad as those of the East German communists. But we should aspire to a higher standard than that.

We should celebrate the anniversary of the fall of the Wall. But, at the same time, we should make a commitment to ending similar injustices that  remain all too common today.