Open Thread

What’s on your mind?

Comments

[Commenter_XY]

The narco-trafficker war goes on...USS Gerald Ford now sent to Caribbean.

Recently, the Senate voted to decline placing restrictions on POTUS Trump regarding Venezuela.
https://apnews.com/article/trump-venezuela-strikes-congress-6c0061bf5a9c417e66f76fcc6ee57405

The Congress has received briefings from the Executive Branch on kinetic activities. Congress has chosen not to place restrictions at this time.

It looks like there will be a lot of dead narco-traffickers over the next year.

[Frank Drackman]

Is that a problem?

[Commenter_XY]

https://www.foxnews.com/us/judge-ordered-release-600-chicago-illegal-immigrants-slammed-dhs-activist-putting-lives-risk

Two questions.

One, does this judge even have the authority to order the release of hundreds of illegal aliens? Didn't Congress strip art3 judges of that authority?

Two, what stops the Fed Gov't from evac'ing the entire group (n~600) and sending them to Eswatini, and then saying, "Illegals? What illegals?"

[John F. Carr]

Here is the case: https://www.courtlistener.com/docket/6952165/castanon-nava-v-department-of-homeland-security/?page=2

Lawyers sued the first Trump administration on behalf of "All current and future persons arrested without a warrant for a civil violation of U.S. immigration laws within the area of responsibility of the ICE Chicago Field Office." The Biden administration settled the case, presumably on terms unfavorable to the government. The second Trump administration may have violated the Biden administration's promises.

The federal government did in fact remove many aliens before the court could act. See docket entry 247.

To begin, in the parties’ joint status reports filed on November 7, 2025, the parties report that they have agreed—after an examination of the pertinent arrest records—that 46 class members were arrested in violation of the terms of the Consent Decree and are thus entitled to relief under the Decree. (Dckt. #244 at 3–4). However, the majority of these class members have already been removed from the United States, either involuntarily or voluntarily, and only 13 of these class members remain in detention. After meeting and conferring as to the identity of these individuals, by 12:00 p.m. on November 14, 2025, defendants shall release these 13 individuals whom the parties agree were arrested in violation of the Consent Decree, remain in custody, and who are therefore subject to release “on their own recognizance without bond or conditions of release” pursuant to Section V(E)(2) of the Consent Decree.

[Lee Moore]

One of Prof Somin’s recent pieces led via a link to one of his earlier pieces mentioning the Migration and Importation Clause of the Constitution. Leaving aside its relevance to the current debates about immigration, there’s an interesting originalism point in there struggling to get out.
Somin referencing a founder or two argued that the clause was only aimed at the importation of slaves, and that the form of words was essentially chosen as a euphemism, so that slavery would not have to be mentioned.
So we have a clause whose literal meaning encompasses any kind of person, not just slaves, but which was - I stipulate - understood by the drafters to apply only to slaves. I stipulate further that the general public would at the time have understood the form of words as a euphemism referring only to slaves.
If so it seems to me that we could fairly say that the original public meaning was the euphemism, and “migration and importation” originally meant “migration and importation as slaves.” This would not be a case of original understanding, ie where the words originally meant something else but the drafters did not appreciate that they could be applied more widely than they imagined.
Anyway it struck me as an interesting puzzle. How should textualists and originalists in particular interpret text that is deliberately drafted to disguise its true object, when everyone at the time of drafting understands that the words written do not mean what they usually mean.

[Brett Bellmore]

I think you have to distinguish between euphemism and indirection. (Maybe there's a better word.)

Are we talking about "as slaves, and ONLY as slaves"? Or are we talking about "We really mean slaves, but we made the language broader to obscure that."?

Meaning to apply just to slaves, and affirmatively nobody else? Or meaning to apply to slaves, and it's fine if other people are swept up by it?

Barring evidence of the former, I think there's no case for ignoring how broad the text is.

[Brett Bellmore]

In any event...

It's easy to forget that the migration and importation clause is a limitation on what is implied to be a pre-existing Congressional power. It doesn't authorize such laws, it prohibits them prior to 1808.

So, if we really conclude that it only applies to slaves, what's being BARRED is only laws interfering with the migration or importation of slaves, and that prohibition would not have applied to laws affecting the immigration of free people.

So, even if the reasoning is valid, it proves the wrong thing as far as Somin is concerned.

We discuss the M&I clause in the context of immigration because it stands as evidence that the founders thought that Congress DID have the power to regulate immigration; Otherwise, what was the point of temporarily limiting it?

Now, if the clause had only referred to importation, we might have supposed it was a limitation on the interstate commerce clause, and there wouldn't have been any implications for immigration. But it also refers to migration, and that would not have been considered relevant to the commerce clause at the time. So the implication of immigration powers remains.