The Volokh Conspiracy
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Supreme Court Issues Stay of District Court's "Title 42" Order
Chief Justice Roberts has issued a stay of the district court's order in Arizona v. Mayorkas. The bottom line is that the vacatur of the "Title 42" immigration order is on hold for now, with a very tight deadline for a response from the federal government. You can read more details in this Politico story. Here's a link to my earlier discussion of this case, including the tension between one court's vacatur and another court's national injunction. The unusual characteristics of this case raise fundamental questions about what kind of remedy vacatur is.
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SCOTUS did not issue the stay -- a single justice riding circuit did.
Facts matter.
Facts do matter. Such as the fact that circuit riding ended over a hundred years ago. Or the fact that this order was entered by a single Justice exercising the authority of the Supreme Court pursuant to 28 U.S.C. § 2101(f).
Or the fact that if you have no clue what you’re talking about, you should probably stop talking.
"(f) In any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari, the execution and enforcement of such judgment or decree may be stayed for a reasonable time to enable the party aggrieved to obtain a writ of certiorari from the Supreme Court. The stay may be granted by a judge of the court rendering the judgment or decree or by a justice of the Supreme Court, and may be conditioned on the giving of security, approved by such judge or justice, that if the aggrieved party fails to make application for such writ within the period allotted therefor, or fails to obtain an order granting his application, or fails to make his plea good in the Supreme Court, he shall answer for all damages and costs which the other party may sustain by reason of the stay.
Why do you think that quote is relevant to the discussion? I assure you that Noscitur a Sociis knows that procedure. I assure you that he also knows, unlike you, that no justice is "riding circuit."
This does seem to be an order of a single justice acting as a circuit justice. While requests for such orders are usually referred to the whole court, they don’t have to be, and occassionally justices give orders on their own. Like this time.
As to “riding circuit” being archaic, out language is filled with archaisms of this type. You might as well criticize phrases like “the sun rose” because the earth moves around the sun, the sun doesn’t actually move. Since each Justice is assigned a specific set of circuits and is responsible for addressing requests for stays and special orders from them, the phrase is still meaningful even if no longer literal.
“Riding circuit” refers to justices serving on U.S. circuit courts. When they did so, they were acting and issuing decisions on behalf of those lower courts (courts which have not existed for more than a century).
Single-justice orders like this one are orders of the Supreme Court. If you want to call that “riding circuit”, it’s a free country and no one’s going to stop you. But it doesn’t have any obvious connection to the historical practice and is, as far as I can tell, nonstandard. It’s certainly ridiculous to try to pendantically correct someone for not using it, as Dr. Ed tried to.
“Single-justice orders like this one are orders of the Supreme Court.”
That’s one way of looking at it, but I take Ed’s point that only Roberts and not SCOTUS en banc issued it as a worthwhile observation about what actually happened.
Was or was not Roberts involved because DC was “his”?
Certainly nothing in the quoted law indicates that as a condition, but it could be internal procedure.
This whole kerfuffle confuses me. For the record, I am an open borders kind of libertarian, but I also believe in following laws that don't shock the moral conscience, and there are things going on here that I do not understand, probably because I haven't been paying enough attention.
Forget Title 42. I understand it and its history. Unless I don't and it's part of the answer to the other questions.
Why have so many immigrants been crossing the border in the last few months? What were Trump, and presumably previous administrations, doing that kept the numbers down compared to what Biden is doing?
If the flood of immigrants is a direct result of Biden policies, why has no one challenged those policies and tried to return to previous policies?
Or have there been challenges and I just haven't been paying attention?
Biden made a lot of changes to immigration enforcement policy. Essentially all of them were in the direction of reduced enforcement, or creating a de facto amnesty.
But a lot of it is psychological: Illegal immigrants and smugglers actually follow American politics fairly closely, in an attempt to anticipate what the likelihood of capture/deportation is. The Trump administration came in promising strict enforcement, and taking him at his word, illegal immigration dropped dramatically. Getting as low as 16K in one month in 2017, the first year Trump was President.
Then it started to become evident the Republican Congress didn't have his back, and illegal immigration shot back up, hitting a peak of 144K in 2019.
Then he declared an immigration "emergency", and started circumventing Congress, and it dropped back down to more historically normal levels, in the 50K range.
But then, of course, Biden took office, with the exact opposite stance on illegal immigration. By March 2021 illegal immigration had hit levels higher than the peak during Trump's administration, 170K, and never went down again.
And with all the talk of amnesties and paths to legal status, why would it? Potential illegal immigrants are paying attention to that.
It wasn't just that the GOP didn't have Trump's back. It also became evident that Trump didn't have all that much interest in follow-through.
How exactly was he supposed to follow through, when Congress was denying him the resources? He was President, not a dictator, after all.
He made deals with Congress (e.g., on the debt limit) where his campaign promises were thrown under the bus in favor of issues more important to him than those promises. And nothing forced him to gush about "Dreamers", champion H1(b)s, resume catch and release of "unaccompanied minors". wait until after the midterms to redirect Corps of Engineers funds to Wall building, etc., etc.
I don't regret voting for him, given the alternatives and Overton effects, but I'm not going to pretend that he wasn't also a self-centered feckless fraud. So far I'm willing to give DeSantis a chance to do better and therefor hope Trump will croak or otherwise stay out.
"Why have so many immigrants been crossing the border in the last few months?"
1. Hot job market.
2. Promise of limited to no immigration enforcement once you get inside the US.
3. Biden unveiling his acts to legalize all the illegal immigrants in the US. Free US citizenship if you get inside first.
I not really sure that the policies of the two administrations are that radically different, but as Brett noted in his response there is a psychological element. Republicans have characterized the Biden Administration as having "open borders" since day one. This message gets to the people seeking to come here, likely through those making money from the people wishing to immigrate. There is no one in the Biden Administration suggesting people come, but people like Greg Abbot and Ron DeSantis are telling everyone that the borders are open.
I am not suggesting that Republicans not offer alternative policies, but I don't see any. Their message to the American people that we have "open borders" will reach everyone, not just their target audience.
I love the way that, if the Democrats are a bit dishonest about what they're doing, and the Republicans point it out, the consequences of the Democratic policy suddenly become the Republicans' fault. Like nobody with a strong interest in immigration policy would have known what Biden was up to without the Republicans telling them.
I mean, he hardly ever shut up about it.
I don't think you got my point. The policies of the two administrations are not radically different, but they are portrayed that way. If you are telling people we have an "open border" policy they people coming here are hearing that too. I am suggesting that Republican messaging is drawing people into the border with hope.
I suggest that Republicans spend less time on this message and more on a message of what they would do different.
Everyone "got" your point of shifting blame for Biden's messaging to Republicans for complaining about Biden's messaging.
Look, dummy, it's pretty simple: if the GOP messaging is to blame, then Biden's even louder messaging gets more blame. It ain't rocket science.
"The policies of the two administrations are not radically different,"
he says, in a comment on an article about the latter administration fighting in court to reverse the earlier administration's policies.
Actually, they are radically different policies. Trump fighting to put up a wall, Biden fighting to prevent a wall from being put up. Trump requiring asylum claims to be filed from Mexico, and you'd be allowed in if you prevailed, Biden wanting them brought in immediately and released on their own recognizance. The differences go on and on.
Now, if you'd said there wasn't much difference between the Republican Congress' immigration policies, and the Democratic Congress', I'd be hard put to argue with you. But the administrations? Quite different.
You write "no different" on an article about Biden fighting to terminate Title 42???
You still need to recover better from that time when you were dropped on your head.
These aren’t organic, spontaneous caravans. These are orchestrated and managed by organizations. These people get rides, debit cards, phones, and all sorts of assistance.
My guess is it’s an orchestrated effort of organizations within and external to the Democrat Federal Government.
Cuing Sarcastr0 showing up to say that's paranoid, in 3, 2, 1..
You're right, of course. There are a lot of resources being poured in to getting as many illegals across our borders as possible. A quarter million a month doesn't happen by itself, after all
The part that surprised me the most was a few northern cities whinging about a few hundred immigrants being an emergency, when every single one of the millions of immigrants have come through border cities without a hint of reaction from the feds. Somebody forgot to send the script around.
All controlled by the Jew Soros, right?
I honestly don't know who's funding them. But you don't deliver a quarter million illegals to our border a month, fed, housed, and transported, without organization and funding.
At least in part, it's the UN.
In Mexico’s Deep South, the United Nations Explains Handing Cash to U.S.-Bound Migrants
That doesn't say anything at all about caravans. Or transportation. Or organizing anything. Basically, the UN agency tasked with helping refugees is… helping refugees.
When the UN (read: the US taxpayer) is handing out resources that help get caravans to the US border I don’t need to be told by some lefty reporter that the UN (US) is helping caravans get to the US border where we (Dems, mostly) can start giving them the real money.
I know you think we’re stupid…. and I guess you’re right, given that Joe Dementia is in the White House… but not ALL of us are dumb enough to be fooled by the transparently disingenuous likes of you.
It wouldn't surprise me if he funded one or more of the NGOs doing this work. It's not like there isn't a heavy Jew influence in the NGOs facilitating the migrant invasion of Europe. Why wouldn't they also be involved here?
Jews punch above their weight all over the place (avg Ashkenazi IQ 115, for one thing), and they’re disproportionately Democrat or worse, but “Jew influence” implies a virtually nonexistent religious or ethnic coordination that makes the person who uses those words look like a nasty Jews-on-the-brain loon.
It’s not something I’m inclined to give anyone the benefit of the doubt about.
I was wondering exactly how you could have come up with a take as crazy as this.
Apparently it's the most recent party line on the topic.
Thanks, everybody. It all seems plausible, especially as something without any specific political action to trigger it and escape my radar. Guess if I wanted to be more aware of this stuff, I should have paid more attention, but I really hate politicians and talking heads.
Think of marijuana or anti-pornography legislation today, or the federal sodomy laws in the 1990s, or federal fugitive slave laws in abolitionist areas in the 19th century, or prostitution, gambling, alcohol prohibition or Sunday closing laws at various times and places in our history. Think of post Civil War civil and voting rights laws, which stayed on the books but went unenforced from the late 19th century through the first half of the 20th century.
Throughout our history, there have been laws that have been controversial, and there have been individual US attorneys or whole administrations that have declined to enforce them, either in their entirety or in specific contexts. This isn’t anything new. The Democratic Party, rightly or wrongly, advocates more liberal immigration laws. And in tandem with that, it does not support strict enforcement of existing laws. This is no different from many other laws that have been on the books but gone relatively or completely unenforced in our history. Pornography laws, sodomy laws, many others.
One may disagree with it. But this type of Executive leniency has been part of our legal history since the beginning of our country. One way to compromise between people who want to prohibit something and people who don’t, a compromise that’s occured many times in our history, is to put (or keep) a law against it on the books, but don’t enforce it very much (or at all).
Um, what federal sodomy laws? There were certainly federal court cases (thanks Justice Kennedy for your animus standard) starting the 90’s, about state laws. But sodomy was prosecuted about as often as the illegal distribution of birth control in Connecticut.
Abuses can be common, that doesn't make them less abusive. The President actually has a constitutionally imposed duty to see that the law is faithfully executed. That duty is essential to the legislative branch actually being able to make policy by legislating.
What we're looking at is a breakdown of democratic government. Systematic differences have grown up between the policy preferences of the governing class, and the general population. The governing class can't politically afford to just come out and say that they want lots of illegal immigration, because illegal immigration is very unpopular. So they keep the laws on the books, and refuse to enforce them.
One of the reasons the political establishment fought Trump so fiercely was that he had the nerve to actually side with the public in this fight.
What we’re looking at is a breakdown of democratic government.
Fucking take up arms, then. Before we put you in camps. Run by the illegal caravans we fund to replace you.
"....a compromise that’s occur[r]ed many times in our history, is to put (or keep) a law against it on the books, but don’t enforce it."
That's not a "compromise". That's a defeat for the people's laws.
For every illiterate migrant who streams across our border, there will be a minimum of three Democrat Party voters in 25 years. That's why the left wants them.
Thinking ahead. I would point out that the same would be true if the Republicans worked to get those future votes.
The only way Republicans can win those future votes is by becoming a leftist party themselves.
Low IQ mestizos who need government transfer payments to support themselves will never desire small government and individual responsibility. That's why Latin America is the way it is.
Skip the racist stuff. The immigrant of today will being working a low paying job and planning for their children's. Those children will likely get educated and get good paying job. They will vote Democrat because they don't care for the racist remarks made about their parents.
Except that the statistics don't bear that out. Descendants of Mexican immigrants, even after the 4th or 5th generations, are still far below whites in education and income.
Their 80-85 Aztec/Mayan IQs prohibit them from doing any better.
Well, that is something Trump started (becoming a leftist party), and what supposedly won him those working class white voters, who apparently were hostile to Paul Ryan's interest in addressing the imminent entitlement financial crisis. That, and free trade sending all their good paying jobs to China.
Strange, my memory is that Trump supposedly won those working class white voters by running on having borders (something about "They all must go!" and "Build the Wall!"), but you don't give it a mention.
That's not really it.
To understand, you need to understand that today's Democratic party is a bifurcated party. On one side, there is a rich, urban, liberal professional class. That is really the basis of the Democrat's party's leadership and strength today. On the other side are a class of (usually) poorer people who are dependent on government benefits.
Meanwhile, the GOP is more dependent on rural, working class individuals.
Now, what illegal immigration does, is it effectively suppresses the wages of the rural and/or working classes. This keeps labor costs low for the urban professional class, while hurting the supporters of their political opponents. Hurt them hard enough, and they drop into the class that needs government benefits, so it's a double win there. Meanwhile, illegal immigrants can't move into the urban professional class, because that requires paperwork and credentials... meaning the urban professional wages won't be affected. As a bonus to all of this, illegal immigrants can't effectively disagree with abusive government policies, which means the urban liberal class can "boss them around" in a way they can't to citizens.
And, of course, the GOP's business interests benefit from the wage suppression, too, so the GOP's office holders face mixed incentives, unlike the Democrats.
We can add that the 3/5ths clause doesn't apply to illegal immigrants, Democrats get the full apportionment benefit from them, despite the fact that they can't vote.
Our politics would look remarkably different if the House were apportioned on the basis of citizens, rather than warm bodies. Which is why the Democrats went nuclear in fighting the Census getting back to asking about citizenship status. (Which was actually a standard question until recently.)
Same reason they lie and say they don't support open borders, because they don't literally say that, but then they support policies that mean de facto open borders.
This is largely true. Plus, the third-world underclass (which includes many citizens, including families who have been here for centuries) brings third-world dysfunction, begetting even more government intervention.
All of this is interesting except that on a per capita basis rural people gets more government support. Obviously urban areas get more but economies of scale mean that they are more efficient with their government dollars.
And, typically when I see people likely to be undocumented, they are working.
No, they don't. That "government support" includes spending on roads, military and other infrastructure.
The military is a big part of it. For some reason, they don't build military bases in the middle of cities.
Yes, and then the left says "Look at all the government money North Dakota gets per capita!"
Assuming your unsourced conjecture is true, are you saying these rural places do not economically depend on military base support?
In the same sense farmers depend on people needing to eat, miners depend on industry needing raw materials. The local towns are providing ordinary economic services to a 'local industry' that just happens to be a military base.
It doesn’t count as federal support if the local industry is the federal government?
You are correct but those military bases often are the primary support for nearby towns. If the bases did not exist neither would the towns. Those towns are essentially government supported.
You've got that backwards. It's not that the military bases are supporting the towns. They're not providing fire services, plowing the roads, handling law enforcement.
The towns are supporting the military bases, by giving the people on the bases someplace to eat and shop. Sure, they get money in return, but that's just normal economic activity, not a subsidy.
Support was the language used, not subsidy.
I also think you are slicing your distinction real thin regardless.
That’s because of the “per” part of per capita. Cities get more bucks, but are much more densely populated. Obviously. The whole “such and such get more something so they’re losers” usually just comes down to mathematical masturbation.
And, as Brett points out, military bases are frequently located in rural areas and we spend a huuuuuuuuge amount of money on military bases. It skews those stats enormously even though it’s clearly not a transfer payment.
So that kind of crap is frequently used as a weapon by people who are either being disingenuous or simply don’t understand what they’re talking about.
I agree about the illegals I usually see in Texas. Usually they're working. Really really hard. But there's a limit in terms of headcount and rate at which that phenomenon disappears.
And yet, districts with military bases fight hard to keep those bases open, precisely because of the financial benefits.
Well, sure, but that doesn't change the fact that the military benefits the country as a whole, whether the base is located in San Francisco or in rural North Dakota.
Absolutely. Jobs, jobs, jobs. And more money circulating in the economy.
But jobs aren’t the same as welfare, which is the inference that a lot of those “more money per capita” statements mean for you to draw.
"All of this is interesting except that on a per capita basis rural people gets more government support."
Is that actually true though? It's always good to check these assumptions. Turns out...it's not true. Metro areas get more federal spending per capita than rural areas. In 2010, that was by almost $700 a person.
So, given the evidence against your assumption...does that change your argument or your conclusions?
https://dailyyonder.com/busting-rural-subsidy-myth/2014/01/07/
"And, typically when I see people likely to be undocumented, they are working."
I don't disagree. That's how wage suppression works. If they weren't working, they wouldn't be suppressing wages.
They want America to be a South American shit hole with an elite, and rich Federal Class ruling over an impoverished brown-skinned working class.
No middle class.
Typical left wing treason:
https://www.providencejournal.com/story/news/courts/2022/12/14/rhode-island-gun-magazine-high-capacity-ban-ruling-outcome-second-amendment-rights/69727765007/
"McConnell found that the plaintiffs Big Bear Hunting and Fishing Supply; three Rhode Island residents — Mary Brimer, James Grundy and Jonathan Hirons; and, a Newport homeowner who lives in Florida, Jeffrey Goyette, had not shown that they would suffer irreparable harm if the law was allowed to take effect, and that allowing its enforcement was in the public's interest."
So if a person has to sell or destroy his mags, and then buy them again if the ban is ultimately found unconstitutional, that's not irreparable harm, but if a gay couple is told that they have to wait a few days to get a license to affirm the fact that one ejaculates into the colon of the other, that's irreparable.
""Consistent with its obligation to protect public safety, but consonant with its fealty to the Constitution, the Rhode Island General Assembly has responded with, among other firearms regulations, the [large capacity magazine] Ban. It is inevitable that Rhode Island will one day be the scene of a mass shooting. The LCM Ban is a small but measured attempt to mitigate the potential loss of life by regulating an instrument associated with mass slaughter," the judge wrote."
No evidence needed, but of course, it's acting with "fealty" to the Constitution, simply because this Obongo judge says so.
Sodomy has become the nation’s number two priority. It’s the most critical thing in the universe, second only to silencing people who notice how rich and powerful and destructive the Jews are.
I'd put abortion above both of those.
It’s the most critical thing in the universe, second only to silencing people who notice how rich and powerful and destructive the Jews are.
Did you get that from the last neo-Nazi rally you attended or did you do your own research?
Do you deny that Jews are disproportionately wealthy, disproportionately politically connected, and disproportionately more likely to use that wealth and connections to propagate left-wing ideas than right-wing ideas?
This is not really up for debate.
The word "disproportionately" suggests you believe they are not entitled to be as wealthy and politically connected as you claim them to be. Should we take some of their wealth so that it is proportional? Perhaps we should restrict their free speech rights so that they speak only in a proportional matter.
Left-wing Jews seem to think wealth should be distributed proportionately, but not when it comes to themselves.
They also have no issue calling a white who doesn't want to marry outside of his race a "racist" but that doesn't apply to pressure they put on their children to "marry within the tribe."
That all-powerful-Jew-pressure has the following result:
But I guess that results in more Jews, according to the Nuremburg Laws about having Jewish grandparents, so there's that.
https://www.jpost.com/Blogs/History-and-Political-Musings/The-real-reason-for-high-Jewish-intermarriage-rates-521511
Your bigotry is out in the open, which is fine with me, but apparently it embarrasses you enough that you pretend otherwise.
That guy deserves to be vigorously ignored. It's a real timesaver just to gray him out..........
What a glorious clusterfuck generated by our political and media elites. The Republicans with their wanting to make it as hard as possible to get approval to come legally in a lifetime. The Democrats with their open borders. The media pushing open borders. Sanctuary cities who want to broadcast their virtue as sanctuary cities until someone shows up actually needing sanctuary.
It’s a perfect stew of idiocy and extremism. Better to own the libs/cons than fix a fucking problem like they’re getting paid to do.
And meanwhile people who are for the most part decent people suffer huge risks and discomfort.
We’re getting exactly what y’all voted for.
There are no open borders.
Every time a reform bill has been hammered out, it’s been the GOP that killed it.
The insane and racist posts in response to this are coming from one side not the other.
Quit with your predetermined symmetry. Dems are not perfect on everything, including immigration, but there is no comparison.
Your team is the one that led these poor people to believe that it’s fine to come. The migrants are telling reporters that they’re here because Biden said it was ok. Your team’s sanctuary city mayors should be ashamed of themselves. And I don’t need your lecture about the fucking GOP, as I said basically what you did.
You should quit your pre programmed homerism and quit getting pissed at me for being balanced, but your mind is too addled with partisanship to do so. Your team has fucked this one to death.
Like you said the other day, though, people being fair-minded and nonpartisan causes you physical discomfort. You admit the problem and still can’t change your behavior.
What Dems are saying that or do say that, bevis? Biden said it was OK is nonsense?
Sanctuary cities are stopgaps, and not my favorite bit of coalition performance, though certainly not the worst. What they are not is announcing we have open borders.
You're not balanced - you come in assuming both sides are equally bad, and will jump up one side or 'tother to get there. Predetermined outcomes will distort your results every time.
Remember the Gang of 6? The Gang of 8? Both bipartisan reform efforts that included beefed up border scrutiny funding and were scuttled by Republicans who could not resist pushing the illegal immigration-baiting nationalism.
I said both sides are bad, I haven’t thought about equality. The Republicans aren’t helping. But neither is your side. Your side has more people openly advocating open borders than you can shake a stick at.
While you were typing this it was announced that the Biden Administration is asking that Title 42 be terminated. Telling cities like El Paso to drop dead.
They covered this on the local news and interviewed some of the people trying to cross. Those folks said they were telling their relatives that “now is the time to come”. Wonder what’s so special about now?
Oh, and they interviewed an immigration layer - someone who dedicates their career to helping these people - and he said that 90% of the people in this surge that he sees have no valid asylum case. As was obvious, these are mostly economic refugees, not valid asylum seekers.
But there’s no sense talking to you. No fact will dent your partisan mind.
So you are into Title 42? To the point that Dems reversing it is them opening the border?
Illegals are not Democrats. Rather by definition. What they say is not like Biden saying anything.
Shutting the door to asylum seekers because you've decided they don't have a case is some anti-due process nonsense.
Their goddamn lawyer has decided they don’t have a case. But you know more than someone who has talked to dozens of these migrants because of your regular use of your Special Internet Rando Mindreading Power.
Democrats are the party of open borders. Everyone knows it. Maybe it’s compassion, maybe it’s cynical politics. Maybe it’s both. Beats me.
You keep acting as if I’m protecting the Republicans. If only I had criticized them in the second sentence of my original post. Before I criticized the Democrats.
If I had just done that you’d agree that I criticized Republicans too. I mean, being a reasonable, thoughtful guy. Right?
"b...ipartisan reform efforts that included beefed up border scrutiny funding..."
ROFL! SuperGaslightr0 strikes again.