3 ms·

The legal theory is that you, as a citizen, have a clear free speech right to say that, but that foreigners outside the U.S. don't have any free speech right at

by schoen 1y ago

The legal theory is that you, as a citizen, have a clear free speech right to say that, but that foreigners outside the U.S. don't have any free speech right at all under the U.S. constitution to say that. (In a related legal doctrine, denying people a visa in retaliation for their specific actions is officially "not a punishment".) I think this theory is pretty broken, but I also find that there are a lot of things where longstanding legal doctrines give the government humongous amounts of power and discretion, and they often did not just, like, make up the concept just 10 minutes ago. Often it's arguably been the rule for many decades. The thing that I'm more familiar with in this category is border searches. My mom was surprised to hear that people's devices (including U.S. citizens' devices) were being searched at the border without suspicion, something that would obviously violate the fourth amendment in a regular domestic context. Something my mom didn't know, but I happened to know from having studied and written about this in the past, is that we have legal precedents going back decades that specifically say that that is a power that the government has. Now, I would like to see a rule that the fourth amendment does apply at the border, but we've been far away from that for years, with important cases in 2004 and 1985 and even longer ago saying that it doesn't. (In this case, it is held not to apply to either citizens or non-citizens in the border search context.) So, I would encourage people to have a broader sense of historical perspective about the staggering amount of power and discretion that the government has repeatedly been given, and the considerable number of limitations that have been held to apply to various legal rights, while also opposing this and trying to change it. Edit: In terms of foreigners' political expression, I believe we've had rules in the U.S. at least since the 1920s that foreigners ought to be excluded from moving here, or even from visiting, for some kinds of radical politics. I also find this notion concerning, I just want to point out that it's in some sense a 100-year-old concept rather than like a 1-month-old concept.

scarecrowbob 1y ago
I understand that your theory holds a lot of sway. I am not in favor of doing anything that cedes more power to the assholes who want it. I'm not a legal scholar but it certainly feels like "removing citizenship from classes of folks" so that they can be deported to purify the body of the volk is a thing that has been done, so anything that we can to maintain the rights of non-citizens seems to be reflexively self-interested. I do understand that the government of the US will do whatever it feels like- it's never felt like that they wouldn't, like, drone strike a citizen if they felt like it. As much as I despise the views of folks like Randy Weaver, it's been a long time since I thought the US might not just shoot folks if it felt like it to. So here is a question: if they don't really care much about the doctrines of laws, why should me and mine?
- schoen 1y ago
  Well, one point is just that the Trump administration is often accused of making up government powers when, on inspection, they're kind of dusting off powers that were actually on the books for a long time. Or perhaps dusting off and oiling? Now, I think some of their interpretations are unreasonable. But some of them are actually just making things more routine and visible that have happened under many different administrations, doing those same things on a larger scale. That's why I mentioned border searches: lots of people (like my mom!) first heard about this recently and thought that the Trump administration somehow invented this power. But in fact, we've seen thousands, or tens of thousands, of border searches of electronic devices, including those of citizens, under all presidential administrations. Even for things like tariffs where the administration's interpretations just sound silly to me, we've had every single administration for decades declare and renew multiple "emergencies" in order to impose various kinds of trade restrictions by executive fiat (e.g. https://en.wikipedia.org/wiki/International_Emergency_Economic_Powers_Act#List_of_emergencies https://en.wikipedia.org/wiki/International_Emergency_Econom...). Some of those emergencies have probably been going on longer than the lifetimes of most people reading this, and they led to very expansive executive control over trade and trade-adjacent foreign policy issues. In the Trump administration case, you can find increasing numbers of border and immigration actions, like border searches, that are "political", but I remember some that were "political" under the George W. Bush administration, again including against U.S. citizens. Similarly, people's visas were cancelled and denied for political reasons all the time under prior administrations, just on a smaller scale because it wasn't (many?) people's job to identify targets for this, and we didn't have social media, and we didn't have government programs to search or archive social media in an immigration context. But we had the "revocation or denial of a visa is not a punishment" (and is generally not appealable for cause...!) doctrine for ages. I've kind of just repeated myself a bit here, but I guess my overall point is that I see lots of government powers as something like loaded weapons that we've left lying around for many years. (Or we could use some other metaphor like toxic waste, landmines, whatever kind of danger is seemingly largely inert but can still eventually be dangerous.) So it feels to me like people are concerned to see the current administration pick up or play around with some of those weapons, but to me the big picture is that lots of people should have been able to agree to dispose of some of them longer ago: to say that we don't want the government to have so much power and we don't want the president to have so much discretion. Furthermore, I even think we could still say that, and possibly find broader political consensus about that idea than we could about the personal virtue of Trump, Biden, Trump, Obama, or George W. Bush as a wielder of some of that power.

by schoen 1y ago

scarecrowbob 1y ago

I understand that your theory holds a lot of sway. I am not in favor of doing anything that cedes more power to the assholes who want it. I'm not a legal scholar but it certainly feels like "removing citizenship from classes of folks" so that they can be deported to purify the body of the volk is a thing that has been done, so anything that we can to maintain the rights of non-citizens seems to be reflexively self-interested. I do understand that the government of the US will do whatever it feels like- it's never felt like that they wouldn't, like, drone strike a citizen if they felt like it. As much as I despise the views of folks like Randy Weaver, it's been a long time since I thought the US might not just shoot folks if it felt like it to. So here is a question: if they don't really care much about the doctrines of laws, why should me and mine?

schoen 1y ago
Well, one point is just that the Trump administration is often accused of making up government powers when, on inspection, they're kind of dusting off powers that were actually on the books for a long time. Or perhaps dusting off and oiling? Now, I think some of their interpretations are unreasonable. But some of them are actually just making things more routine and visible that have happened under many different administrations, doing those same things on a larger scale. That's why I mentioned border searches: lots of people (like my mom!) first heard about this recently and thought that the Trump administration somehow invented this power. But in fact, we've seen thousands, or tens of thousands, of border searches of electronic devices, including those of citizens, under all presidential administrations. Even for things like tariffs where the administration's interpretations just sound silly to me, we've had every single administration for decades declare and renew multiple "emergencies" in order to impose various kinds of trade restrictions by executive fiat (e.g. https://en.wikipedia.org/wiki/International_Emergency_Economic_Powers_Act#List_of_emergencies https://en.wikipedia.org/wiki/International_Emergency_Econom...). Some of those emergencies have probably been going on longer than the lifetimes of most people reading this, and they led to very expansive executive control over trade and trade-adjacent foreign policy issues. In the Trump administration case, you can find increasing numbers of border and immigration actions, like border searches, that are "political", but I remember some that were "political" under the George W. Bush administration, again including against U.S. citizens. Similarly, people's visas were cancelled and denied for political reasons all the time under prior administrations, just on a smaller scale because it wasn't (many?) people's job to identify targets for this, and we didn't have social media, and we didn't have government programs to search or archive social media in an immigration context. But we had the "revocation or denial of a visa is not a punishment" (and is generally not appealable for cause...!) doctrine for ages. I've kind of just repeated myself a bit here, but I guess my overall point is that I see lots of government powers as something like loaded weapons that we've left lying around for many years. (Or we could use some other metaphor like toxic waste, landmines, whatever kind of danger is seemingly largely inert but can still eventually be dangerous.) So it feels to me like people are concerned to see the current administration pick up or play around with some of those weapons, but to me the big picture is that lots of people should have been able to agree to dispose of some of them longer ago: to say that we don't want the government to have so much power and we don't want the president to have so much discretion. Furthermore, I even think we could still say that, and possibly find broader political consensus about that idea than we could about the personal virtue of Trump, Biden, Trump, Obama, or George W. Bush as a wielder of some of that power.