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I used that example because, across the developed world, immigration policy is the issue that reflects the disconnect between what the public wants and what ant

I used that example because, across the developed world, immigration policy is the issue that reflects the disconnect between what the public wants and what anti-democratic checks on democracy have allowed. We literally just had an election. Both candidates ran promising to close the border, and Trump additionally promised “mass deportations.” Immigration was literally the first two issues on his platform: https://www.donaldjtrump.com/platform https://www.donaldjtrump.com/platform. He won the popular vote. He’s got the mandate, and four years to implement it and see how the public feels then. What we are seeing with the judicial and bureaucratic resistance to deportation is not the “rule of law.” In fact, the immigration laws are designed to facilitate deportations quickly and to punish those who facilitate or encourage illegal immigration. What you’re seeing is elites try to use the republic’s anti-democratic checks to impose their preferred immigration policies, according to their peculiar affinity for immigrants.

onetimeusename 2y ago
This often gets forgotten but by all appearances, Alejandro Mayorkas, the DHS sec, facilitated mass migration illegally but avoided ever being called anti-democratic, authoritarian, or whatever else people are called for doing deportations. (So importations are more democratic than deportations I guess somehow??). No one gave him a mandate to do the CHNV program flying people in, to spend money building a highway in Panama, to grant parole to alleged asylum seekers, etc. It's surprisingly missing from all this passionate debate about authoritarians, populism, and the end of the rule of law.
- notahacker 2y ago
  Mayorkas had exactly the same thin mandate as Trump appointees, and was also unpopular, but he wasn't trying to claim his mandate was so strong that he could ignore courts and the constitution. If Germany gave you a visa, would you consider it necessary to start a debate about whether such actions were authoritarian? How about if when you got there, they locked you up without trial?
  - rayiner 2y ago
    But he did! The CBO calculates 8.7 million immigrants in excess of normal levels under his watch. It’s a plainly visible policy change in charts: https://images.app.goo.gl/9N5K5DQjcfcj542a8 https://images.app.goo.gl/9N5K5DQjcfcj542a8. Biden didn’t have the mandate to do that. How did that happen? It was because Biden and Mayorkas did not “take Care that the Laws be faithfully executed.” He ignored laws that required him to keep immigrants out. He also interpreted the law in ways that were not “faithful” to Congressional intent. For example, he took a law that allows parole on a “case-by-case” basis, and gave blanket parole to hundreds of thousands. But then judges will say that these blanket protections must be revoked on a “case by case” basis. People are prattling on about the Impoundment Act and whether Trump has statutory authority to reorganize executive departments. Meanwhile, Obama created an entire amnesty program (DACA) nowhere in the INA, after failing to get the same amnesty through Congress. All of this stuff about “the rule of law” is rank hypocrisy from people who don’t believe in rules or law.
    - notahacker 2y ago
      > Biden didn’t have the mandate to do that. Course he did, by your own arguments not only did he have precisely that mandate as the president that people voted for [on a manifesto of broadening pathways to citizenship], but nobody else should have had any right to try to stop him. It's interesting that you regard Biden's administration pursuing a policy in their manifesto (but ceasing part of the parole-in-place programme as soon as the unelected judges of a state court ordered them to do so) to be a more egregious violation of the rule of law than Trump rocking up in El Salvador to sneer at the idea of abiding by a rare unanimous Supreme Court verdict. Much like your insistence that whereas Trump has a mandate to disregard court orders, Biden didn't even have a mandate to undo executive orders on border control he said he was going to undo, the "rank hypocrisy from people who don't believe in rules of law" displayed in this exchange is all yours...
      - rayiner 2y ago
        > Course he did, by your own arguments not only did he have precisely that mandate as the president that people voted for [on a manifesto of broadening pathways to citizenship], but nobody else should have had any right to try to stop him. Sorry, I was unclear. I was mirroring the language in the post to which I was replying, which assumed that the margin of Biden’s win meant he didn’t have a mandate. I think Biden had a mandate to do most of what he did. My only quibble would be that Biden didn’t campaign on opening the border, but Trump clearly campaigned on mass deportations. And yes, I view the introduction of millions of illegal immigrants as being the more egregious violation of the law than what Trump is doing. The former reflects millions of instances of the administration violating american law and americans’ right to determine the kind of society in which they want to live. The latter applies to a small number of individuals, and reflects mostly administrative flubs involving people who are undisputedly non-citizens.
notahacker 2y ago
I point to issue polling because I'm pointing out the obvious fact that much of what he and his appointees actually done isn't the will of the public, no matter how much shouting about migration or egg prices during the election resonated with certain segments of it. The fact that he has four years left to make appointments and executive orders and the public can't do anything about is an implementation detail of a republic, just as anti-democratic as similar quirks meaning that other presidents' appointees are around to thwart him in certain areas. Most of those decisions have absolutely nothing to do with issues that got Trump elected, but the rules let him get his way on many of them anyway. Contra populism: democracy /= the guy who got a plurality of the vote once getting his way on everything even when the rules and votes aren't in his favour. I do think your sequence of posts is as good an indication of the difference between populism and popularity as we're ever likely to see though. Populism isn't about making political arguments that are popular, it's about making arguments of the form that if an ultraconservative Supreme Court of presidential appointees (three of them his) determines that part of Trump's bureaucracy sending legal migrants to foreign concentration camps without even deigning to provide a reason might not be constitutional, it's because "elites try to use the republic’s anti-democratic checks to impose their preferred immigration policies, according to their peculiar affinity for immigrants...." even when the best available evidence suggests the public widely supports the court in this instance. Trump won a vote so anyone not deferring to him is guilty of overreach.
- rayiner 2y ago
  > I point to issue polling because I'm pointing out the obvious fact that much of what he and his appointees actually done isn't the will of the public The reason we have elections and not issue polls is because voters balance the totality of the circumstances in reaching their decisions. People may or may not like this or that incident in the moment, but that doesn’t mean they disapprove of the overall arc of the policy. So, for example, polls show that virtually no Trump voters regret their vote and he’d probably win a rematch: https://emersoncollegepolling.com/trump-100-days/ https://emersoncollegepolling.com/trump-100-days/ (Emerson is a good pollster, its final 2024 polls nailed Trump’s actual share, and overestimated Harris only by 2). Issue polls taken in the moment also suffer from response bias—e.g. people who approve of the overall arc of Trump’s immigration policy are less likely to respond to polling about a flub than people who are outraged by the policy itself. (The 2024 Harris bounce should be a good lesson in response bias!) And a rule based on second guessing election results based on issue polling would never be applied even handedly—judges are definitionally elites and such a rule would be applied to favor their preferences. Issue polling showed the ACA under water for quite some time. Roberts had ample basis for finding the statute unconstitutional—far less of a stretch than the expansive interpretations of asylum laws—but he admirably saved it. And I’d argue that, contrary to the issue polls, Obamas’s reelection ultimately bore out that the ACA had a mandate.
AnimalMuppet 2y ago
The judicial resistance to deportation because they didn't follow the law on how to do deportation. That is, the judicial opposition is exactly the rule of law. The courts are not saying that the administration can't deport illegal aliens. They are saying that, in order to deport illegal aliens, the administration has to follow the law. Do you have a problem with that? If so, what and why?
- rayiner 2y ago
  What does “the law” require, though? A number of these judges are liberals who adhere to the notion that the law can be found in “emanations from penumbras” of the constitutional text. But I saw little effort to look at the “emanations from penumbras” of the INA, which is a decidedly pro-deportation document. And some of the actions have been simply lawless. For example, after the Supreme Court ruled that Judge Boasberg lacked jurisdiction in the deportation flights case, the proper course would have been to dismiss. Instead, he initiated contempt proceedings based on failure to follow an order that was void ab initio, citing case law that applies to private litigants but makes no sense in a case where a district court exceeds its jurisdiction to compel a co-equal branch of government to act. Sanity prevailed and the DC Circuit administratively stayed those contempt proceedings. Judge Howell, in one of the law firm EO cases, asserted that firms had a first amendment right to pursue “progressive employment policies”—even though the first amendment obviously doesn’t apply to race-conscious employment policies. Other courts are insisting that Trump can’t revoke temporary authorizations by executive fiat that Biden granted by executive fiat. More generally, courts are abusing their injunction powers. Read Marbury v. Madison again. The court goes out of its way to avoid enjoining the secretary of state even to perform the “ministerial” task of delivering a letter the president had already signed. Marbury makes clear that, while courts have the power to declare the law, and overturn Congress’s laws, its power to compel the executive branch to act is extremely limited. The Supreme Court correctly ruled in the deportation flights case that the administration must allow detainees to file habeas petitions in the districts where they’re detained. That’s a proper exercise of district courts’ jurisdiction to adjudicate alleged deprivations of individual rights. It’s not proper for the courts to try and use that authority to enjoin entire executive policies that offend a judge’s sensibilities.

onetimeusename 2y ago

This often gets forgotten but by all appearances, Alejandro Mayorkas, the DHS sec, facilitated mass migration illegally but avoided ever being called anti-democratic, authoritarian, or whatever else people are called for doing deportations. (So importations are more democratic than deportations I guess somehow??). No one gave him a mandate to do the CHNV program flying people in, to spend money building a highway in Panama, to grant parole to alleged asylum seekers, etc. It's surprisingly missing from all this passionate debate about authoritarians, populism, and the end of the rule of law.

notahacker 2y ago
Mayorkas had exactly the same thin mandate as Trump appointees, and was also unpopular, but he wasn't trying to claim his mandate was so strong that he could ignore courts and the constitution. If Germany gave you a visa, would you consider it necessary to start a debate about whether such actions were authoritarian? How about if when you got there, they locked you up without trial?
- rayiner 2y ago
  But he did! The CBO calculates 8.7 million immigrants in excess of normal levels under his watch. It’s a plainly visible policy change in charts: https://images.app.goo.gl/9N5K5DQjcfcj542a8 https://images.app.goo.gl/9N5K5DQjcfcj542a8. Biden didn’t have the mandate to do that. How did that happen? It was because Biden and Mayorkas did not “take Care that the Laws be faithfully executed.” He ignored laws that required him to keep immigrants out. He also interpreted the law in ways that were not “faithful” to Congressional intent. For example, he took a law that allows parole on a “case-by-case” basis, and gave blanket parole to hundreds of thousands. But then judges will say that these blanket protections must be revoked on a “case by case” basis. People are prattling on about the Impoundment Act and whether Trump has statutory authority to reorganize executive departments. Meanwhile, Obama created an entire amnesty program (DACA) nowhere in the INA, after failing to get the same amnesty through Congress. All of this stuff about “the rule of law” is rank hypocrisy from people who don’t believe in rules or law.
  - notahacker 2y ago
    > Biden didn’t have the mandate to do that. Course he did, by your own arguments not only did he have precisely that mandate as the president that people voted for [on a manifesto of broadening pathways to citizenship], but nobody else should have had any right to try to stop him. It's interesting that you regard Biden's administration pursuing a policy in their manifesto (but ceasing part of the parole-in-place programme as soon as the unelected judges of a state court ordered them to do so) to be a more egregious violation of the rule of law than Trump rocking up in El Salvador to sneer at the idea of abiding by a rare unanimous Supreme Court verdict. Much like your insistence that whereas Trump has a mandate to disregard court orders, Biden didn't even have a mandate to undo executive orders on border control he said he was going to undo, the "rank hypocrisy from people who don't believe in rules of law" displayed in this exchange is all yours...
    - rayiner 2y ago
      > Course he did, by your own arguments not only did he have precisely that mandate as the president that people voted for [on a manifesto of broadening pathways to citizenship], but nobody else should have had any right to try to stop him. Sorry, I was unclear. I was mirroring the language in the post to which I was replying, which assumed that the margin of Biden’s win meant he didn’t have a mandate. I think Biden had a mandate to do most of what he did. My only quibble would be that Biden didn’t campaign on opening the border, but Trump clearly campaigned on mass deportations. And yes, I view the introduction of millions of illegal immigrants as being the more egregious violation of the law than what Trump is doing. The former reflects millions of instances of the administration violating american law and americans’ right to determine the kind of society in which they want to live. The latter applies to a small number of individuals, and reflects mostly administrative flubs involving people who are undisputedly non-citizens.

notahacker 2y ago

I point to issue polling because I'm pointing out the obvious fact that much of what he and his appointees actually done isn't the will of the public, no matter how much shouting about migration or egg prices during the election resonated with certain segments of it. The fact that he has four years left to make appointments and executive orders and the public can't do anything about is an implementation detail of a republic, just as anti-democratic as similar quirks meaning that other presidents' appointees are around to thwart him in certain areas. Most of those decisions have absolutely nothing to do with issues that got Trump elected, but the rules let him get his way on many of them anyway. Contra populism: democracy /= the guy who got a plurality of the vote once getting his way on everything even when the rules and votes aren't in his favour. I do think your sequence of posts is as good an indication of the difference between populism and popularity as we're ever likely to see though. Populism isn't about making political arguments that are popular, it's about making arguments of the form that if an ultraconservative Supreme Court of presidential appointees (three of them his) determines that part of Trump's bureaucracy sending legal migrants to foreign concentration camps without even deigning to provide a reason might not be constitutional, it's because "elites try to use the republic’s anti-democratic checks to impose their preferred immigration policies, according to their peculiar affinity for immigrants...." even when the best available evidence suggests the public widely supports the court in this instance. Trump won a vote so anyone not deferring to him is guilty of overreach.

rayiner 2y ago
> I point to issue polling because I'm pointing out the obvious fact that much of what he and his appointees actually done isn't the will of the public The reason we have elections and not issue polls is because voters balance the totality of the circumstances in reaching their decisions. People may or may not like this or that incident in the moment, but that doesn’t mean they disapprove of the overall arc of the policy. So, for example, polls show that virtually no Trump voters regret their vote and he’d probably win a rematch: https://emersoncollegepolling.com/trump-100-days/ https://emersoncollegepolling.com/trump-100-days/ (Emerson is a good pollster, its final 2024 polls nailed Trump’s actual share, and overestimated Harris only by 2). Issue polls taken in the moment also suffer from response bias—e.g. people who approve of the overall arc of Trump’s immigration policy are less likely to respond to polling about a flub than people who are outraged by the policy itself. (The 2024 Harris bounce should be a good lesson in response bias!) And a rule based on second guessing election results based on issue polling would never be applied even handedly—judges are definitionally elites and such a rule would be applied to favor their preferences. Issue polling showed the ACA under water for quite some time. Roberts had ample basis for finding the statute unconstitutional—far less of a stretch than the expansive interpretations of asylum laws—but he admirably saved it. And I’d argue that, contrary to the issue polls, Obamas’s reelection ultimately bore out that the ACA had a mandate.

AnimalMuppet 2y ago

The judicial resistance to deportation because they didn't follow the law on how to do deportation. That is, the judicial opposition is exactly the rule of law. The courts are not saying that the administration can't deport illegal aliens. They are saying that, in order to deport illegal aliens, the administration has to follow the law. Do you have a problem with that? If so, what and why?

rayiner 2y ago
What does “the law” require, though? A number of these judges are liberals who adhere to the notion that the law can be found in “emanations from penumbras” of the constitutional text. But I saw little effort to look at the “emanations from penumbras” of the INA, which is a decidedly pro-deportation document. And some of the actions have been simply lawless. For example, after the Supreme Court ruled that Judge Boasberg lacked jurisdiction in the deportation flights case, the proper course would have been to dismiss. Instead, he initiated contempt proceedings based on failure to follow an order that was void ab initio, citing case law that applies to private litigants but makes no sense in a case where a district court exceeds its jurisdiction to compel a co-equal branch of government to act. Sanity prevailed and the DC Circuit administratively stayed those contempt proceedings. Judge Howell, in one of the law firm EO cases, asserted that firms had a first amendment right to pursue “progressive employment policies”—even though the first amendment obviously doesn’t apply to race-conscious employment policies. Other courts are insisting that Trump can’t revoke temporary authorizations by executive fiat that Biden granted by executive fiat. More generally, courts are abusing their injunction powers. Read Marbury v. Madison again. The court goes out of its way to avoid enjoining the secretary of state even to perform the “ministerial” task of delivering a letter the president had already signed. Marbury makes clear that, while courts have the power to declare the law, and overturn Congress’s laws, its power to compel the executive branch to act is extremely limited. The Supreme Court correctly ruled in the deportation flights case that the administration must allow detainees to file habeas petitions in the districts where they’re detained. That’s a proper exercise of district courts’ jurisdiction to adjudicate alleged deprivations of individual rights. It’s not proper for the courts to try and use that authority to enjoin entire executive policies that offend a judge’s sensibilities.