In a 5-4 ruling, the Supreme Court had blocked the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program as an “arbitrary and capricious” change. Chief Justice John Roberts, joined by the four liberal judges, ruled that Trump’s decision violated the Administrative Procedure Act. It was another self-inflicted wound due to a poorly executed policy change in this area. The ruling is based on procedural failures, not the merits or the underlying authority.
Chief Justice John Roberts was joined by Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor. The majority ruled that
“the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”
In dissent, Justice Clarence Thomas, joined Justices Samuel Alito and Neil Gorsuch, wrote that any such errors were irrelevant because the underlying policy was facially unlawful”
“Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda,. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration un- less the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”
What I find the most interesting is PART IV where Roberts was supported by only three justices (with the omission of Justice Sotomayor). That section rejected the use of President Trump’s public statements as proof of racial animus. The language rejects such reliance by lower courts, particularly the Ninth Circuit.
None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. … Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.
Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as recently as three months before the rescission,” 908 F. 3d, at 519 (quoting 298 F. Supp. 3d, at 1315), referring to the June 2017 DAPA rescission memo, which stated that DACA would “remain in effect,” App. 870. But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” 908 F. 3d, at 519. It was a natural response to a newly identified problem.
Finally, the cited statements are unilluminating. The relevant actors were most directly Acting Secretary Duke and the Attorney General. As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue. Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.
The decision is already being misrepresented as a ruling on the merits or a rejection of the underlying claims of illegality. It is not.
Here is the opinion: Department of Homeland Security v. Regents of the University of California
If Obama amended the Constitution by executive order would a subsequent president have to go through the Administrative Procedures Act and Mr Roberts to restore the Constitution?
I doh’t think so.
Estovir, you are totally out of your mind! Just a nerdy loser forever trying to shock us with mindless, over-the-top language.
Regarding Above:
This was a rely to a comment that disappeared about the exact moment I posted.
Thomas’ Opinion Puts Issue In Perspective
The court’s four most conservative justices dissented. Justice Clarence Thomas said the program was illegal, and that the court should have recognized that rather than extending the legal fight.
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote. “The court could have made clear that the solution respondents seek must come from the legislative branch.”
Instead, he said, the court provided a “stopgap” measure to protect DACA recipients, and “has given the green light for future political battles to be fought in this court rather than where they rightfully belong — the political branches.”
Edited from: “Supreme Court Blocks Trump’s Bid To End DACA, A Win For Undocumented Dreamers”
Today’s Washington Post
………………………………………………………………..
Thomas rightfully notes that a solution to this matter should have come from the legislature branch. But because of Trump’s anti-immigration stance, Congress refused to deal with this matter despite strong public support for Dreamers.
In fact The New York Times coverage of this decision notes that 61% of the general public wants the Dreamers to have a path to citizenship. Coincidentally 61% of political Independents are also supportive of Dreamers. And 30% of Republicans want a deal for Dreamers.
This matter illustrates what happens when one of the two major political parties digs its feet in and says, “We refuse to deal with this”. When that happens, the matter winds up before the court for a decision that fails to resolve much of anything.
Even Trump wants a deal for Dreamers.
This entire court battle was so that congress could avoid having to come to the table and negotiate.
Trump has telegraphed repeatedly that he would trade the Dreamers for wall funding in a second.
The Democrats are the obstructionists. They are unwilling to negotiate with Trump on ANYTHING. This is an election year and EVERYTHING the media and the Democrats do will be to hurt Trump at all costs….lying, delaying, obfuscating, attacking, lying, not doing their jobs and preventing any progress that gives Trump a win….you name it….nothing gets done in Washington because the Democrats are trying like hell to RESIST everything good they could do for the country….because they want power back and they hate Trump more than they love this country. It should be obvious to most voters by now.
Just to be clear – there is no requirement that either democrats of republicans negotiate. Those are decisions each party has to make for themselves.
I do not care much that democrats are unwilling to compromise – there are times less often that republicans will not either.
I do care that the are wrong. and that on the issue of immigration a compromise with Trump is the best outcome we are likely to get.
Go out and exercise!
https://medicalxpress.com/news/2020-06-physical-million-early-deaths-worldwide.html
Darren, please remove this slanderous and false insult to Turley along with my comment about it.
Im sure you havent had a chance to see it yet, but, I can’t suffer seeing this lying defamatory garbage on Turley’s own website.
DACA isn’t a law passed by Congress, it’s an executive branch memorandum, announced by President Barack Obama on June 15, 2012. If you read the article, you know the ruling is based on “a poorly executed policy change.” So, do over in prospect.
This is what domestic lawfare looks like. Get people scrumming around in the legal weeds and soon enough, everyone loses sight of what justice looks like.
In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.
In a just system, lawyers wouldn’t be permitted to argue for the preservation of unlawful programs. That strikes me as not only unethical, but a clear violation of their oath. It’s like the Michael Flynn case; an objective observer at 10,000 feet would easily conclude this was an abuse of justice from the very beginning. But this is lawfare; not justice.
Roberts ruled on “feelings,” and he has done so before. He is the cowardly lion from the wizard of oz. This basically affirms that somehow Obama’s Executive Orders have some special mertit that means they are untouchable. While the court claims this decision is not on merit that is nonsense. Roberts ruled with liberal justices because he is terrified of the progressive hate mobs that are destroying free speech and everything else, He is a coward. There is nothing arbitrary and capricious about ending a program that the Administration and Department of Justice both feel is unconstitutional. If fact, that is the duty of the Administration and Department of Justice if they feel that way. This is a stain on the court. the Chief Justice should retire after making this decision, He has now done this a couple of times. When push cpomes to shove he will suck on his thumb and put it into the air to find which way the wind is blowing instead of making a real decision. This is exactly why I am glad the court didn’t take a 2nd Amendment case. Roberts would do the same thing. He will rule against the Second Amendment because he is to cowardly to stand up for the Constitution and rule of law. He will always find a way to rule in favor of progressives, and rule on something else other than merit so he can still pretend to follow the Constitution. He is useless.
The line from the dissent that JT cites is the most critical.
The improperly implemented policy of one administration, can not become permanently sacred.
The majority is essentially saying because Obama got away with legislating executive, we are stuck with it forever.
DACA must be implemented by congress, not unilaterally by the executive.
This is another farcically stupid decision – in a string of them this term.
Andrew Jackson knew how to deal with Supreme Court decisions he didn’t like. Not my favorite president but I am coming to appreciate his approach.
Once the Court appears to yield to pressure it invites more pressure.
Another institution takes the mask off and reveals it is corrupt.
I want to know what incompetent lawyers told Trump he could just revoke DACA with the stroke of his pen and not follow the procedures the court refered to.
“The ruling is based on procedural failures, not the merits or the underlying authority.”
Turley said that and we should take Turley seriously. The question is not what dirt there is, the question is whose job was it to make sure the DACA revocation was done with all necessary formalities, and who choked and failed to cross the i’s and dot the Ts. Incompetence, and sabotage, has ruined what little chances this administration had to stem the tide of disastrous national ruin.
I want to know the name of what lawyer was responsible for this failure. What’s the name, do they still work in the White house, are they in a law firm where, who? Trump should want to know and fire that person and give them the Twitter treatment. Incompetent, overpaid system hack, you can bet on that.
Kurz– It should not require much more formality to revoke it than to invoke it.
Roberts would have stuck his fingers in Trump’s eye no matter what.
Except, it doesnt work that way, because of the APA
the core holding is not a surprise:
“DHS’s rescission decision is reviewable under the APA and is
within this Court’s jurisdiction.”
administrative law is one of the few classes I got a rock solid A in, not even an A-…… and I saw this coming. I didn’t want to crow about it because nobody is listening to me anyhow, but Im telling you, this was totally foreseeable outcome. Now that it’s been struck, there’s no harm in me saying, they should have seen this coming. This was incompetence. It could have been done better and worked.
read turley’s article fully and the decision fully and it is not really a suprise they came down this way as a majority
and please observe “RACISM” is not part of the holding.
I did not say that racism is part of the holding. I am leaning toward stupidity and corruption.
If an executive order is plainly illegal on its face the suspension of it is self executing by virtue of existing, settled law. To say it can be stopped only by going through the APA is nonsense. What if there were an executive order saying all blacks must live in La Jolla and San Diego. Must we stumble through the APA and wait for the Georgetown cocktail circuit to tell Roberts how to rule before the order can be suspended? Illegal is illegal even if Obama rid it.
Is there someone who beleives that if Trump had followed APA Roberts would have not found another means to protect DACA ?
Further the APA is a ruse regardless, If Roberts wishes to find Some Trump action did not conform to APA – he can. That will ALWAYS be true of this kind of garbage.
The actual requirements for due process rest on criteria that have been tested in the law and courts over centuries – they are not arbitrary, and they are well understood and the flexibility is limited.
If APA does not apply to creating something – it does not apply to destroying it.
Further – if something is extra constitutional – APA does not apply.
Frankly APA should never apply to removing anything.
The purpose of constraints is to add due process to government actions that bind us all, not to make it harder to unensnare us.
Exactly!
The more I think of this the stupider this decision gets.
Roberts APA claim is just a gigantic red herring. It is probably worse than the PPACA decision – it terms of logic, not effect.
If Obama’s unilateral action was unconstitutional – this is over.
DACA is dead.
If it was constitutional – then reversing it the same way is constitutional.
If the APA did not apply to enacting it, it can not apply to removing it.
The APA is not a one way valve.
Obama claimed the foundation of APA is prosecutorial discretion.
Prosecutorial discretion is not revieable – not by congress not by the courts.
But it is completely reversable by another prosecutor.
There is not a possible logical means to reach this decision.
This is the epitomy of – make it up as you go.
It is also the epitomy of – courts making Trump specific decisions.
Obama’s EO was not unconstitutional. The Executive branch under it’s administrative responsibilities may institute policies not specified by law as long as they are consistent with and designed to effectively implement the law. Given the 12 million + illegals and the limited resources at hand – no one thinks we can remove them all – DACA was part of a judicious use of those resources with an emphasis on removing dangerous illegals. That falls entirely within that principle.
PS Unlike Trump’s order, Obama’s EO was planned and not capricious.
Reality check. Obama quit trying to negotiate an immigration deal with congress and whipped out an EO with very little Planning.
Trump telegraphed to congress REPEATEDLY that if they wanted to Keep DACA they needed to come to the negotiating table over immigration.
Trump’s EI was well planned. Further Contra Roberts – no planning and justification are needed to END something.
When FDR interned the Japanese, Did he need to spend months studing and writing a new EO to close the internement camps ?
Yes B. O. was very very clever and had a keen understanding of some of the nuances of government. The DACA program was clever in many ways. Most of all, as we can now see, precisely as you said.
Personally, I can accept deporting young people who are illegal immigrants, by no fault of their own. I realize this may create tragic personal situations, and my heart goes out to them. But I am like Javert in this way. The nation and its laws often do that, law often has a sad result, in the short run; but in the long run, we hope the pain is worth the gain.
However, most people do not share my severe orientation. Certainly i can admit that most people find deporting these kids a queasy proposition. So it was actually a popular initiative. BO was clever to seize on it and a lot of people on both sides were content with his program. It even seems Trump is genuinely sympathetic to them as well, in spite of being the guy to try and end it.
It was also clever in how it was structured and all the findings etc etc etc. The legalisms that matter, they knew up front, they set it up in a strong way.
Trump, tried to cancel it, and he lacked the nuance of understanding that BO probably had. That’s ok, he doesnt need to be a lawyer, but he needs to hire good ones! Instead, he had some incompetents or saboteurs mismanaging the process for him. Likely, some “experienced” BELTWAY REPUBLICANS on his team, and REPUBLICANS are renowned not for their cunning, but for their LACK OF IT.
We who supported Trump were not fooled by Trump; we and Trump were both fooled into thinking the Republican party could actually be a vehicle to rectify the national disintegration that’s been long underway.
Of course I had friends who think very same as me who told me that; they said, no matter how good Trump may be, the Republicans will find a way to screw things up.
If Republicans really were serious about all their talk, then they would have actually been helping Don the past 3 years instead of stabbing him in the back. But we can see, that’s what it’s all been about. And John Bolton is just the most recent example.
Now DACA is not really a big deal, keep it or let it go. But other things of greater consequence are being BOTCHED before our eyes, as the Republican rats scramble to get off what they perceive is a sinking ship.
I thought I had come to hate the party I deserted before Trump dragged me back into it, but, I am hating it more and more now. The utter incompetence is stunning.
Republican rank and file people near the bottom are good sensible folks.
But they are too kind. Be instead cruel like me, and do not fear to articulate our hatred of Republican failures and betrayals from the likes of John Bolton. Or any of the other backstabbers who have revealed themselves of late.
Oh wait, Bolton, he was Dubya’s guy too right? I disliked Dubya from day one and knew that one was going south and boy did it ever. This Bolton guy is a Bush appointee. how the heck did Trump, who made fun of Bush, ever decide to bring this guy into his fold? What a horrible awful mistake and one that Trump only could have made if he let go of his election year animus towards the Bushes, which is part of why I liked him in the first place. Trump has made a lot of mistakes and this one was right at the top.
Trump, if he wins, and he might, had better come back with a team of Republicans who have NOTHING to do with the old guard at all. The left behind toilet bowl stains of the older Republican party should be totally cashiered from every position of leadership down to local party level
OH WAIT, THERE IS NO LOCAL PARTY LEVEL FOR REPUBLICANS, BECAUSE OF MANY LONG DECADES OF INCOMPETENCE!
I think a lot of this goes back to them stabbing nixon in the back. They had no cojones then and now they don’t even have brains.
“Obama’s EO was not unconstitutional.”
Then neither was rescinding it.
The APA only applies to executive actions to impliment legislation.
There is no legislation that DACA impliments.
It is entirely an act of executive constitutional authority.
AS such the only review available to SCOTUS is constitutionality.
And if as you say Obama was constitutionally allowed to enact DACA, then Trump was allow to revoke it without review.
“The Executive branch under it’s administrative responsibilities may institute policies not specified by law as long as they are consistent with and designed to effectively implement the law. ”
Nope and this is pretty much what APA is about. The executive must follow APA when implimenting the laws passes by congress.
If as you say DACA was somehow implimenting the laws passed by congress – you could cite specific law. Further you could show where Obama fallowed the APA.
And if he did not – then DACA would be illegal and Trump could unilaterally rescind it.
There is no means by which Obama’s actions were legitimate and legal – and Trumps were not. And all instances where Obama overstepped Trump’s actions are legitimate.
“Given the 12 million + illegals and the limited resources at hand – no one thinks we can remove them all – DACA was part of a judicious use of those resources with an emphasis on removing dangerous illegals. That falls entirely within that principle.”
There is lots of gabage in there. Regardless – there is no “make it up as you go” principle in the constitution. You are wrong about several things – but even if you were right, it would not matter. The overwhelming majority of us think DACA is a good idea. But all good ideas are not constutional. And even those that are can not be implimented by any means necescary.
You can say it as many times as you like John but the other John, John Roberts, who actually gets to decide, he disagreed.
Reckon with that reality as you spin these fancies around in your head.
It’s just a lot of intellectual narcotic to dull the pain of the ugly situation we are in. This is sometimes called “hopium”
reminds me of my fellow Catholics who are always saying what “doctrine really is x, y, z”
actually, it’s just whatever the current catechism committee says it is, so long as it’s approved by the guy sitting in the chair in Rome!
we might as well be talking about the status of usury in the modern Church, which is up to its ears in it.
Mr Kurtz – doctrine is what your conscience says it is.
Que Sera, Sera and legal positivism is not a road to any place anyone sane wants to go.
Legal positivism is insane according to John Say? Wow, funny how many insane people still are signing up in law schools, and how many have been through it since Oliver Wendel Holmes established it as the predominate American legal thinking on ‘Rights” from the SCOTUS all the way down.
But, Say still does not “get” what it means, because he is attached to a libertarian conception of rights that works great for grandstanding on blogs, but has little or no relevance if you are actually in a courtroom, where people have to know what the law IS and not just have an opinion about WHAT IT SHOULD BE.
Which are usually different things. The distinction matters very much in almost every conversation. It’s fundamental
“Legal positivism is insane according to John Say? Wow, funny how many insane people still are signing up in law schools, and how many have been through it since Oliver Wendel Holmes established it as the predominate American legal thinking on ‘Rights” from the SCOTUS all the way down.”
Argumentum ad populum
Argumentum ad verecundiam,
Your position has the same flaw as BTB’s. It fails reductio ad absurdem, there is no limiting principle to BTB’s principle less nonsense that explains why the Nazi’s are not legitimate.
Pray tell what is the limiting principle to “the law is what the highest court says the law is” that spearates the US from Nazi’s ?
Pick some Scotus decision – why even bother to write oppinions to hear arguments if there are no moral legal or constitutional foundations beyond – 5 of 9 say this is the law ?
Why is Plessy not right ? Why is Koramatsu not right ? Since you like Holmes – why is Buck Vs. Bell not right ?
“But, Say still does not “get” what it means, because he is attached to a libertarian conception of rights that works great for grandstanding on blogs,”
I make libertarain arguments for my own positions. But my attack on yours is simply, Facts, Logic, Reason. There is no ideology involved. Your arguments FAIL.
“but has little or no relevance if you are actually in a courtroom, where people have to know what the law IS and not just have an opinion about WHAT IT SHOULD BE.”
We are not fundimentally arguing over what the law should be. We are arguing over what it is. If the law is self contradictory and arbitrary – it is not law.
I presume that you know enough logic to know that once you you have a contradiction in what you have accepted as true, that you will be able to prove anything.
I have been in courtrooms – as well as tribunals on administrative law for decades.
Claiming that courts are about what the law is, is laughable.
And administrative Law proceedings are almost never about what the law is. In my profession I have represented myriads of clients in administrative law proceedings. In those proceedings. I worked with the tribanal to acheive the goals and objectives of the state and those of my client – with very little concern for the law. And I was very successful. While lawyers who tried to compel compliance with the law – failed at significant cost to their clients.
To be clear – this is not how things SHOULD be, but it is how that ARE.
I am well aware of the difference between what is an what should be.
You seem clueless on that.
But then you are clueless all over.
Not only do I wonder if you have actually been inside a court room – or any administrative law proceeding – your remarks show no evidence of that. But I wonder about your grip on reality.
We are not in a courtroom right now. WE are in a forum on the internet. We are arguing about BOTH what the law IS and what is SHOULD be. You are clueless to the fact that is legitimate, just as you are clueless about what the law is.
Holmes was WRONG. Legal positivism is an immoral foundation for law that will not work. That ultimately leaves you with genocide as lawful.
“DHS’s rescission decision is reviewable under the APA and is
within this Court’s jurisdiction.”
Nope.
“administrative law is one of the few classes I got a rock solid A in, not even an A-…… and I saw this coming.”
Dopes not matter AL does not trump either constitution or logic.
“I didn’t want to crow about it because nobody is listening to me anyhow, but Im telling you, this was totally foreseeable outcome. Now that it’s been struck, there’s no harm in me saying, they should have seen this coming. This was incompetence. It could have been done better and worked.”
I am not intimately familiar with the details at this moment, but I am near certain DACA was enacted by fiat.
As I recall Obama argued that he could do so as a matter of prosecutorial discretion.
As the Cosby case (and myriads of others) established – the discretion of one prosecutor can be reversed at whim by another.
“read turley’s article fully and the decision fully and it is not really a suprise they came down this way as a majority”
Of course it is a surprise – the whole APA applies argument is garbage.
Though not as bad as Bostock this is precisely the judical activism that Trump was elected to end.
Obama acted without sufficient constitutional authority to act unilaterally.
He extended executive power into the domain of the legislature.
This decisions essentially says that were another EO 9066 passed by some future president, the next president would have to jump through innumerable hoops to rescind it.
Trump claimed that Obama’s actions were unconstitutional.
SCOTUS MUST address that claim first, and they MUST do so defering to the current president.
The same would be true for Biden seeking to reverse Trump’s actions.
What SCOTUS is saying is that if Biden is elected in 2020, that to reverse course on actions like Trump’s border wall or imigration enforcement choices, Biden would have to spend years dotting I’s and crossing T’s before he could act.
It is taking ACTION to use government power that the constitution restricts,
The ability of one executive to undo even the legitimate purely executive actions of another must be unlimted.
“and please observe “RACISM” is not part of the holding.”
The entire “racism” meme is nonsense. And it relates to the problems with Bosctick.
The more pseudo rights you create – and the more people you apply them to, the more of a gordian not you create.
We have created so many forms of barred discrimination and we are very nearly applying our laws and our rights to the planet, that we will ultimately make all private and government action impossible.
There are many reasons for limited government. Just ONE of those is that all energy expended by government is a cost – it reduces our standard of living. To be justified it must create an equal or larger benefit. That benefit must be real not immagined.
Who told Obama he could impliment DACA by “pen and phone” ?
There is no fundimental difference. It is near universally accepted that DACA is outside the presidents unilateral authority.
That should be the end of it.
John– Yes. It is crystal clear that this is a crap political decision by a crap, political ‘Court’.
actually that’s not so clear.
the core holding is not a surprise:
“DHS’s rescission decision is reviewable under the APA and is
within this Court’s jurisdiction.”
see when government invents a new “right,” succeeding adminstrations can’t just revoke it arbitrarily, because the APA doesnt allow that.
This is pretty close to black letter law 25 years ago. This is arcane, but not surprising.
Sorry but there is no getting around the need for the Republican party to get deeper in the bench, to get its act together, and not just hope the charismatic leader will do all the hard work by magic.
Where have the Republicans been for 3 years in building an infrastructure of people on the ground to support Trump in the election which is upon us?
Nowhere. They just send out “give me money” letters every couple months. The “local party leadership” are oftentimes, totally incompetent dabblers. They are actually kept in place by the higher ups, who want to make sure the local leadership are the most pliant of losers so that their national rackets are not endangered from below. This is the “Republican Party,” just take a look at your local “leadership” and it’s almost certainly a bunch of do-nothings.
They did not support the “tea party” before and that is why. They were regarded as upstarts, only to be leached off of, for some energy and donations. They were not cultivated as partners, just cynically exploited. And Trump’s support came from similar corners, and has been treated the same way.
The Republican hacks are a bunch of slicksters, they hate the people from flyover pretty much just the same way the Democrat leadership does, except they are more incompetent. They are creeps, like the supposed Republican Rosenstein. That’s them in a nutshell. butt covering liars and double talkers and slicksters in fancy suits. Oh the Democrats say this about Trump but he is exceeded by the Republican “veteran” party people in every bad way by far.
These Republican party “leaders” who have failed Trump, and us the people who supported Trump, are slicksters in suits, utterly cynical ossified bureaucratic desk jockeys, a malingering group of opportunists going back a long time, and they’ve botched a historic opportunity. I hate the Republican party infrastructure even more now than I did before, when i read this decision and understand what a grossly negligent job the President’s advisors did in preparing the initiative to cancel DACA
Trump might have had better results with his agenda if he’d run as a Democrat, unfortunately, we know that the Dem party leadership is even more horribly traitorous to the people, and also far more effective at all their scheming and looting and cynical lying.
I remember this one Republican turd who had a national office i met a few times. No names mentioned. A good looking chap, the only thing that distinguished him, however, was his hairdo. He had glassy, soulless eyes, and the handshake of a pansy. But he had nice clothes and listened well to all the big business interests who paid for him in the first place.
I still wonder to this day, how Trump even believed he could whip this sad group of my fellow citizens, lead by so many fakes and phonies into shape.
I mean, how about the cynical exploitation of the prolifers by Republicans for decades, people who could really care less. Trust me the slicksters aint praying any rosaries. Decades of watching these old ladies get exploited by the suits just makes me want to vomit. Why don’t the Republicans just be honest like Trump and say, “We can live with it” when the SCOTUS arbitrarily rewrites laws like it did by adding transgender status to title vii and move on to something we can change?
Oh, and they totally punted on the Second amendment cases. Really cute way to gut Heller without much effort, huh? If you want something to complain about where the SCOTUS is concerned this term, their certiorari picks is where to look!
it’s questionable to what extent the Presidential election matters at all. You can see how every branch will screw the POTUS if he doesn’t just toe the line of previously endorsed range of positions
We actually do need somebody like Stalin now I think. Stalin was a cunning genius when it came to bending the bureaucracies to his own will. he’s generally seen as a tyrant out there executing all his rivals, which is just caricature. Well, that came later., First he had to win over all the agencies who were filled with potential rivals. The assassination of Trotsky came long long after Trotsky had been totally sidelined. Stalin was patient and cunning and had a super long view.
Kurtz– From your view nearly every executive decision comes under the APA and is reviewable by Mr. Roberts. The judiciary is not the executive.
No, not every one, it could have been crafted otherwise. this is what Turley suggests. But it wasnt.
And if it had been crafted along the lines Turley suggests I suspect Mr. Roberts would have ‘discovered’ some other flaw that led him to the same decision.
DACA was illegal. The President is trying faithfully to execute the laws; Mr Roberts not so much.
“No, not every one, it could have been crafted otherwise. this is what Turley suggests. But it wasnt.”
You keep making the argument against you.
Roberts has been playing this game for some time.
It is not one that anyone can ever win with him.
You say it could have been crafted otherwise – sure, but then Roberts can change the rules again.
The entire point here is that the APA can not Trump the constitution it does not apply.
Obama implimented DACA claiming prosecutorial discretion.
By doing so he made it completely reversable by discretion.
The APA do not apply to DOJ prosecuting crimes.
It is about the crafting of regulations – it is the directions of congress concerning the process that must be followed to impliment legislation congress passes.
That is inside congresses authority.
Prosecutorial discretion is neither in congresses authority, nor the APA’s,
in fact it is not even in SCOTUS;s
I would note that there was one other choice Obama had that was likely in his power and not reverseable. That is he could have pardoned the Dreamers.
Again – the APA would not have applied – and SCOTUS could not have reviewed.
and Trump could not have reversed.
Thinking about this comment, Young, I would further add
because “Marbury v Madison” gives the SCOTUS a mandate to judicially review any laws outside the common law– any acts of Congress, state laws, — that the institutional of “judicial review” would eventually not just relate to Congress, or the states, but also regulations, and, eventually, as we see here and maybe in other precedents from before– that the very logica of Marbury v Madison would eventually lead to allowing the SCOTUS to touch executive orders, too.
I believe under existing laws there are XOs which will clearly fall outside judicial review, but not all of them. I don’t think the SCOTUS could swallow up all XOs into judicial review, but it could swallow some, and it has, even before this case, I am pretty sure
Let’s look forward now. To a regulation being contemplated by ATF — not yet proposed but being floated by some insiders — pistol braces, an issue which has been back and forth since 2014
If Mr Trump just signs an executive order banning “pistol braces” as an exception to the NFA law requiring rifles with a stock and a barrel under 16 inches to require a federal license, well, if he does that WITH certain findings, maybe it will not be reviewable by SCOTUS under the Second Amendment,
but if he does that WITHOUT sufficient findings, then, perhaps it will offend the APA, and could make a viable case under this precedent
Of course you may surmise that the federal judicial tyrants will do their best to support anything that is more restrictive of firearms, and this SCOTUS blew off certiorari for all the gun cases, so it seems that attitude goes all the way to the top now.
Now of course when ATF cobbles up new rules that go beyond “private letter rulings” to actual new rules– that may restrict current “Rights,” then, yes, it usually will follow the APA and have a “notice and comment period,” using the Federal Register. See the old “41F” Rule signed by Loretta Lynch about certain gun related subjects,
The fact that something is not a surprise does not make it right.
Read your own argument – you are claiming that the APA is extra constitutional.
That any president is required to follow the APA to remove even an unconstitional policy.
We are not talking about a law here – and that is the point.
We are not even talking about a regulation.
Roberts has just made APA apply in reverse to things it never applied to before – EO’s and to Trump constitutionality.
You keep ducking that argument.
You can not.
The constitution is the supreme law of the land. The president is required to uphold it.
Above all others. Above all law, above all regulations, above the APA.
Any president is entitled to claim that any existing law, regulation or EO is unconstitional. And he is free unilaterally refuse to follow it.
That refusal CAN be challenged in court – as this was.
When that occurs the FIRST question for the courts – is to determine constitutionality.
IF the courts conclude the presidents determination of unconstitutionality is correct – then the case is OVER. Nothing else matters.
Further, the burden is on the challengers. When a president asserts that some government action is unconstitutional – the presumption must be that it is.
You seem to fail to grasp that Roberts has just imposed a duty on all presidents to act unconstutionally, for portentially years over an administrative law requirement.
AL is subordinate to the constitution.
John Say – let’s remember that anyone now trying to overturn one of Trump’s EOs will have to deal with the APA. 😉
No, they will just ignore inconvenient precedent. They are lawless.
Kurtz’s argument – and Roberts is just ludicrously stupid.
This seems to be a hallmark of these bizzare roberts decsions.
It is not so much that they are right or left that is offensive.
It is that they are so much garbage.
If I taught logic – Roberts would fail.
I have no idea how he passed LSATS;
And what really bothers me is that Roberts is not likely stupid. It is highly likely he knows exactly what he is doing.
Roberts has TDS. He despises Trump. And as he publicly chided President Trump, “excuse me. there are no Obama judges or Bush judges, you are flat out wrong”…..yeah, uh, no, Trump was correct, Justice Asshat.
Thanks George W. Bush. A fine pick putting Roberts on the SC. Not.
Your digression about republicans whether true or not is irrelevant.
You keep selling this “will to power” nonsense – I guess you are channeling Nietzsche
Look arround you – I do not know how close we are to the moment that the wheels all just fall of – but we are headed there.
We are all offended as we watch Chauvin with his foot on Floyd’s throat.
Well the people have a foot on our throat increasingly pressing.
History tells us how this ends.
The meaning of Trump’s election was “back off”. That was what he was elected to accomplish.
After 16 years of increasing pressure under Bush and Obama, Trump was elected to release the heel of government from our throats.
This has resulted in unbeleiveable pushback from the left.
A complete wig out and melt down.
In every possible way they seek to press that heel even harder into our necks.
If that continues – like floyd – chaos will ensue.
This floyd protest riot mess is just a microcosm.
There is a large amount of police reform that I support.
but I also grasp that we actually are measurably doing better at policing than ever in history – perfect ? Nope.
Lost of reforms would be nice.
We can proceed carefully – an preserve the benefits of the policing we currently have while improving it.
Ir we can proceed recklessly.
Lets accept arguendo that policing is systemically racist.
Lets accept that the police are not worthy of our respect
They are still the line between chaos and some semblance of order.
We are already seeing a spike in violent crime.
What do you expect if the police decide not to work so hard ?
I do not know what will happen. But I know that it is very dangerous to send a message to 900,000 people who we depend on to prevent everything from degnerating into chaos – that we do not respect them.
What happens if they say F’it ?
Or worse still the idiots who think “abolish the police” is a good idea ?
I do not know how close we are to spiraling into chaos. Maybe the knot in my stomach is just indigestion and everything is fine – we can continue to tolerate more pressure from the heel at our throats.
Or maybe I am not wrong and we are about to blow a gasket.
Who is the “we” to which you refer? Certainly not the majority of Americans who: 1. did NOT vote for the reality TV show host; 2. have not approved of him, by historic margins and for an historic length of time; and 3. who want this unfit creature out of our White House.
“releasing the heel of government from our throats”? You can say this after your fat hero tear-gassed American citizens peacefully protesting police brutality to get them out of the way for a photo op to stand in front of a church, posing with a Bible, after it was revealed that the fat chump had been hiding out in the White House bunker like the coward he really is?
Trump’s “victory” was the product of cheating, and his “presidency” is not, and never will be, valid. He never had, and still doesn’t have, any agenda, other than self-aggrandizement, seeking praise and attention, wallowing in power, and now, obsessing over his impending removal from office. There has never been any “meaning” to Trump’s cheating his way into the White House, other than as a backlash by non-college-educated whites who resented Barak Obama’s popularity and success, as well as the success of educated women. Because he has no leadership skills or concerns for anyone other than himself, the pandemic is still not controlled, PPE is still in short supply, the economy is in shambles, unemployment is at record highs, but this modern version of Nero must have his vainglory rally because his fragile ego needs to feed on the cheers of the dumbasses that make up his base. He doesn’t care that Coronavirus infections are already surging in Oklahoma, he’s not wearing a mask, and he’s encouraging his fans not to, either. In fact, some of them are actually defiant about it. Still, they have to sign a waiver not to sue the Fat Boy or his campaign or the venue if they get sick. Virtually no physician approves of this rally, but the narcissist must feed that ego because that’s why he cheated his way into office. Is that leadership? There will be even more deaths and suffering.The mere sight of this deplorable creature is repulsive.
Yes, that IS leadership dum dum. What was Fauci right about? Nothing. But we DO know Fauci sent love letters to his idol Hillary Clinton. It’s disgusting and not out of the realm of possibility that Fauci was sabotaging Trump in every sly way he could. He is a Hillary freak fan boy. What does that tell a sane clear-thinking person? Did “physicians” approve of the weeks of massive Black Lives Matter protests and gatherings? We know the MSM did. We know the Democrats did. We know your girl Rachel Madcow did.
“Who is the “we” to which you refer? Certainly not the majority of Americans”
You seem to presume that we are in a democracy, and that democracy is not the most oppresive form of govenrment there is.
“WE” is anyone whose liberty is being infringed by the left.
“WE” is the people who are tired of being called racist, sexist, homophobic, intollerant, hateful, hating haters, by the most loathsome immoral intolerant people on earth.
“WE” is the people who understand that when you put equality ahead of liberty you get bloodshed.
Grow up get a clue, life is not fair. Nor are ANY of us equal, not can we be made so.
“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
J. S. Mill.
The majority is never justified in infringing on the rights of a minority.
Further this is not about Trump. You – the left elected him. You did so with your PC nonsense and Alinsky tactics. Trump is just the strategy and tactics of the left turned agains them. Look in the mirror – he is you.
“releasing the heel of government from our throats”? You can say this
Absolutely. YOU are ranting “racist racist racist”, You have demanded that the productive of the country pay for the whims of whatever your favorite identitarian victim group of the moment is.
You say peacefull protests ? For three days and nights before you burned and looted.
You threw stones, you tore down fences.
And you are pissed because you got told to go elsewhere ?
The national mall is a few blocks away – as is the capital.
There is room there for 100 times your number and little to burn and destroy.
And you bitch ? 2 weeks wearly we saw heavily armed lockdown protestors.
White, black. Prostesting – actually petitioning government – mayors, govenors, legislators. – at city hall, and state houses – you know the place you go to petition government. Nit a shot fired, not a stone thrown, not a building burned not a single conflict with a police officer or anyone.
When you can PEACEFULLY protest – then you can complain about smoke and pepper spray.
Why were you idiots at the whitehouse anyway ? You keep telling me that Trump has no authority to do anything. Then why are you petitioning him ?
Protest to those that can actually do something – mayors, city counsels, governors, legistators.
“Trump’s “victory” was the product of cheating,”
How so ? When you make moral accusations against another the price for being wrong is your integrity, and the burden of proof is on you.
“He never had, and still doesn’t have, any agenda, other than self-aggrandizement, seeking praise and attention, wallowing in power, and now, obsessing over his impending removal from office.”
And yet the list of accomplishements is so long.
“Barak Obama’s popularity and success”
What success ?
And why do I care about popularity.
Do we elect presidents to govern or to win popularity contests
“PPE is still in short supply,”
Really ? I had no problem buying much more than I needed at prices the same as before this.
“the economy is in shambles”
We have hit a blow from nature to our economy that is unparalelled.
And indications so far is that despite the pain of the past few months the recovery is more rapid than anyone expected.
Current data is showing 17% growth in may. Admitted that is from the trough, but even at a rapidly declining rate, that will still mean full recovery in a few months.
It even apears likely there will NOT be an actual formal recession.
1Q2020 growth was positive – barely, but still positive.
There is greater than a 50:50 chance that 2Q will be barely possitive.
And actual recession requires 3Q of negative growth.
“unemployment is at record highs,”
No it is just higher than it has been in a long time, and it is already turning.
“but this modern version of Nero must have his vainglory rally because his fragile ego needs to feed on the cheers of the dumbasses that make up his base.”
I will be happy to eat crow in a few months if as you say Rome burns – what about you ? If the recovery is strong and swift – does anyone beleive you will give Trump any credit ?
Obama presided over the longest weakest economic recovery since the great depression.
Trump is likely to preside over the fastest one in history.
“He doesn’t care that Coronavirus infections are already surging in Oklahoma,”
Studies from Europe using the IMIE model have determined that there is no government action anywhere in the world that had any effect on C19 – besides delaying the inevitable.
“he’s not wearing a mask, and he’s encouraging his fans not to, either. In fact, some of them are actually defiant about it. Still, they have to sign a waiver not to sue the Fat Boy or his campaign or the venue if they get sick.”
So maybe they will all die and that will make you happy.
Or maybe they will not.
Besides You did not seem to care much about C19 while you were burning and looting.
Why should Trump supporters ? After all the same experts you are saying condemned this also said that C19 is cured by BLM protests.
Why are you credible ?
Why would anyone beleive you ?
You know who cheated only to lose the election? Hillary Clinton. With the aid and covert assistance of the corrupt Obama administration
Natacha, What are you doing to prepare your obviously unstable emotionally fragile dysregulated brain for Trump’s reelection in November? Do you have a good grief counselor lined up yet?
It is not universally accepted.
DACA was a program invented by the executive branch to sort out who would be deported and who would be deferred. The reality is with 30 million illegal immigrants or so, it was a valid notion that some were more in need of deportation than others. The president decides how to exercise law enforcement assets, and Obama decided to make up a program sorting them out. Did he create law>? Yes. In his sphere of authority. Did he make up a right that is reviewable by APA?
Obviously he did; the SCOTUS just handed down an opinion that said so, and it is actually not much of a suprise.
Listen, I havent read the dissents. Probably the key point of the dissents are worth exploring. But normally you try and understand the core ruling before you examine the dissents.
“Enabling laws” drafted by Congress get implemented in all kinds of specific ways by agencies and different administrations. The main thing Congress can do if they don’t like something, is pass a new law making something clear.
Now Trump to his credit, invited Congress to clarify DACA but it did not. Here is now where we are.
We can’t “elect” new judges. We can aim the criticism where it counts, which is at the Democrats who want to import as many new foreigners as possible because they think they will have a lot of kids who will vote Democrat. That is a cynical decades long ploy by them going all the way back to 1965 and that is where the action is, not in the arcane interpretation of the APA.
Get a Republican majority with some cojones, and make the migration laws clearer and new administrations wont get to fiddle over these things in the first place. I could give a legislative history of examples about that just in the area of immigration law but it’s not really a good use of my time today
Anger from Trump supporters should be aimed at the Republican functionaries and failed foot draggers. Not roberts who in this case, simply went with a textbook understanding of the APA. Nobody can unelect Roberts at this point.
Fussing over the SCOTUS decisions is actually one of the most defective things that the Republican establishment encourages us to do, decade after decade. it keeps us little people in flyover busy, so we stay out of their higher level rackets.
Roe V Wade is case in point, This is not an elected law it is diktat. We can’t change it. Just focus on what you can change. Politics is the art of the possible.
A terrible wave of hatred sweeping over the RINOs and Trump’s saboteurs in the Republican party like John Bolton is what should be happening today. How about complaining about John Bolton a total lying backstabber who’s got lots of support among Republicans even now? Pathetic wretched man, and all those who support him.
“Did he create law>? Yes. In his sphere of authority. Did he make up a right that is reviewable by APA?”
Right off the rails.
If your initial predicates are true – your conclusion is false.
APA is congress made law. Congress has now constitutional power to constrain anything that a president is capable of doing unilaterally – beyond controling funding.
This is centuries old constitutional law.
This gets addressed constantly.
If the APA applies to legitimate unilateral acts of the president
then ALL constitutional unilateral acts of the president can be constrained by congress.
Congress could pass laws to restrict a presidents pardon power.
They could pass laws to dictate foreign policy.
As a rule – I think congress has delegated way too much of its own power to the president. But that does not mean I support completely eiviscerating the presidency and making it a purely cerimonial position.
The APA can ONLY apply to the powers that congress has delegated to the executive.
If the APA applies more broadly than that, then congress would have the power to constrain any presidential power in any way it wished. Congress could essentially rewrite the entirety of Article 3 of the constitution via legislation.
This whole APA argument is complete nonsense.
The APA argument was really bad as applied tot he Census – and I am not sure that it is not completely inapplicable there, that will depend on how much power over the census the constitution gives congress and how the constitution gives that power to congress.
I am also disturbed their because though I am not perfectly sure of this, I do not think that the APA was ever followed regarding the Census.
What Roberts has been telegraphing to Trump is, I am going to use the APA to bar you when I fell you have made a bad policy decision. And the APA is sufficiently nebulous that I will always be able to use it.
You said Trump should have followed wiser advice and conformed.
I will argue that it is not possible for Trump to conform – so long as Roberts wishes to find non-conformity.
“But normally you try and understand the core ruling before you examine the dissents.”
There is no “normally”.
Dissents have infinite scope.
Any dissent that says the court jumped the shark – presumed authority it does not have, or failed to establish constitutionality before proceding, is independent of the majority decision.
Put differently – a majority decision can be perfectly reasoned.
but If the majority failed to establish they underlying constitutionality,
or its jurisdiction,
or the applicability of the law it cites to the matter before it
then the majority decison is wrong and meaningless.
John say, none of what you said about dissent has any relevance to what the court had to decide. What mattered was the question before the court. They weren’t deciding on the constitutionality of DACA. They were deciding on the accuracy of the procedure that the trump administration was legally required to follow. Because they didn’t follow proper procedures they screwed up their attempt at ending DACA.
Clearance Thomas wanted to decide on the constitutionality of the order, but that wasn’t the question before the court. His dissent was out of step.
Justice Clarence Thomas: “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.”
The first thing the court had to decide was whether DACA was legal. That was the first question before the court.
That is what the dissent said.
That was also the primary reason offered for recision.
Roberts completely ignored that.
This is one of the fundimental flaws of Kurz;’s legal positivism.
It allows the courts to ignore the arguments before them, to ignore the constitution. to ignore the law and just make up the outcome they want.
I want to repeat again
Roberts completely ignored:
This is important.
Nowhere in roberts decision does it say DACA was legal.
Nowwhere in Roberts decision does Roberts actually reach any decison – except “try again”
He does not reject the arguments or actions made by DHS – he ignores them. He pretends they are not there.
He does not address the merits of anything.
There is no finding – beyond – not today..
There is nothing in this that would serve as future guidance.
It tells us nothing about the constitituyion or the law.
This is an outcome only decsion with no meaning.
Of course it was before the court.
Roberts said that DHS/DOJ violated the APA by offering no reason for rescinding DACA.
But they did – the reason offered BOLDLY was that it was ilegal.
Roberts not merely ignored that but he pretended it did not exist.
Like a man holding his hands over his eyes shouting your not there I cant see you.
I would further note this entire mess raises a HUGE issue.
Either we have a very serious flaw in our constitution or we fundimentally misunderstand it.
Our founders went way out of their way to give the federal govenrment power that it would be incredibly hard to excercise.
That is obvious to just about all.
We can argue details, but that principle is “self-evident”.
Yet we now have a system where whether it was easy or hard to enact something, it is damn near impossible to go back.
It is not merely highly unlikely that is what our founders intended,
It is also a horrible idea.
Scalia sort of addressed this when commenting on Korematzu.
He said something to the effect that it was a bad decision, bad at the time it was made, but that under similar circumstances pretty much any supreme court likely would have found in favor.
Scalia was essentially saying that under dire circumstances the courts turn a bit blind to the constitution.
Fair enough. But bad decisions made in emergencies MUST be easily reversed who the emergency is over. Ir we are on a ride to hell.
As a matter of principle it must be easier to undo the acts of government, than to impose them in the first place.
You can disagree – but the consequence of not being able to do so – is govenrment eventually fails under its own weight.
Another pipe dream. This government has more debt than any nation in history and hardly anybody could have imagined the size it would be just a few decades ago and then the dollar would keep going UP
I realize now late in life how much of the libertarian conservative soup I drank was just so much thin broth to keep me from starving and trying to break out. Weak but alive, too weak to break out, yet alive enough to keep on working away at my humble little end of it.
Of course, i had some mentors who explained this to me along the way, kindly, and if I would have really listened then I would have quit talking about law off the clock immediately and never done it again,.
but here I am giving out the free insights like some washed up old convict in the jail library hoping the kids will listen to what I was too dull to understand, too late at least.
So I’ll cut to the chase. Everything comes down to organization. Social organization, and how it is formed and used by leadership. All the stuff you were told about cowboys and individualism was all a big fat lie to keep you from gaining power in your own lifetime. It was as much a phony creed to keep you down as any false religion ever was.
If there are two things that would help the young people it would be
a) understanding that all government is a system of organized violence and the laws are nothing more than the current set of rules. some may work better than others based on the relevant factors, but they are all just rules. none are holy writ.
and b) nothing very important gets done by one person in isolation. Nothing. Nothing,. Nothing. The leader only succeeds with a powerful team. The leader can direct and lead the team efforts but if the team stinks then it’s going to fail. The team, in short, is everything.
this is the single most important insight of the Left, and the one that most repulses american conservatives.
Unfortunately it is the one thing that matters most. and its why in spite of all their manifestly retarded notions, they gain ever more political power.
and also why Trump is failing. Republicans did not help build a team around him that could really win.
This could change late in the game. Otherwise, I wouldnt have bothered to say it
Kurtz, Story telling and rambling is not argument.
You claim to have seen the light – but if you have any light in you it is deeply hidden.
You think libertarianism is thin soup and you have been guided to a better place – but you can not seem to remember how, or if you can you have not offered it or if you have it is not compelling.
You note the myriads of problems we have and then presume they are nothing at the same time.
And you sell this potpori that is a mix of a doris day song, bad Nietzsche, and an obviously immoral legal theory ?
Why should anyone listen to you.
As to some of your assertions – the US can build up as much debt as it wants – so long as someone will buy it, the dollar will remain strong so long as the rest of the world is weaker.
We are less F’d up than the rest of the world is not some proof that libertarians were wrong about anything.
If everything came down to organization – the Germans would have won WWI and WWII.
Cowboys and individualism are not principles and they are not the foundations of libertarianism.
The fundimental foundation is the concept of free will. That plus logic takes you only one place.
And the alternatives to free will are pretty dark and for most easily rejected.
John, keep on catechizing yourself with the libertarian religious thinking. It doesn’t work but that never stopped a true believer.
My world view is libertarain. My arguments are facts, logic, reason.
Your position fails. It does not fail because it is not libertarian. It fails because it is a logical disaster.
My Nazi Reductio ad abserdum is just one argument. When something is illogical there are always multiple arguments that work.
RAA is just a fairly simple way to destroy stupid arguments like legal positivism.
There is a simple fix that will cure your RAA problem – add a limiting principle, but a limiting principle is precisely what Legal positivism rejects.
I do not care much what Bolton says – became most of it is meaningless.
Bolton has said – Trump made decisions based on getting re-elected.
So what, that is what presidents and politicians do.
Most of the decisions Bolton criticises were decisions by Trump to do what he had promised.
Don;t we want presidents who say “I will do X” and then do X so that we re-elect them ?
Beyond that all Bolton’s complaints were over policy.
God knows why Trump picked Bolton. It was no secret that long before Trump entered politics Bolton;s policies were totally at odds with Trump.
Bolton wanted war with Iran.
How many are not happy Bolton did not get his way ?
Regardless, there is nothing Bolton is saying that reflects badly on Trump – which running it through a dozen spin cycles.
The big Bolton question is why did Trump EVER appoint him ?
Wait, this is the same guy who only 2 days ago claimed the intent of Congress has no weight. I assume he’s full on board Trump’s precedent setting end run around Congresses power of the purse and against it’s specific instructions to build that wall for Mexico – I’m sure they’ll pay it back.
The courts have allowed the executive branch to make decisions not specified by Congress as long as they are not inconsistent with and in furtherance of the goals of legislation under a principle of it’s exercising it’s best judgement in efficiently and effectively implementing it. Given the Executive Branch does not have the resources to round up and deport the more than 12 million undocumented and illegal workers here, DACA was justified as aimed at the most worthy, positive, and innocent group to be allowed residence and those resources then aimed at dangerous and less worthy illegals. The Obama EO was therefore in keeping with that principle.
“Wait, this is the same guy who only 2 days ago claimed the intent of Congress has no weight.”
That is correct. But the actual statutes passed by congress and the words of the constitution those have weight.
“I assume he’s full on board Trump’s precedent setting end run around Congresses power of the purse”
I actually oppose Trump using emergency powers to build the wall. His actions are legal – because he did NOT make an end run arround congress. They passed budgets that allocated emergency funds, and they pass laws that allowed reallocating emergency funds. But despite the fact that it is legal – it is a mistake. It will embolden future presidents to act for worse reasons.
Trump should have stuck with the shutdown.
“The courts have allowed the executive branch to make decisions not specified by Congress”
FALSE.
The courts do not have the power to allow the executive anything.
Powers are delegated to each branch by the constitution.
“DACA was justified”
That is irrelevant. The only question is whether it was inside the unilateral powers of the president.
If it was not – we are done.
If it was, then it is also in the powers of Trump to rescind.
The APA is an act of congresss, Congress can not constrain the powers that the constitution delegates to the president. To do that you must amend the constitution.
Simply – if DACA can be done by the president unilaterally – it can also be undone and APA does not apply.
If it can not – then it was illegal from the start and congress must pass it.
” the most worthy, positive, and innocent group to be allowed residence”
there are about 300m worthy positive innocent people throughout the world that would like residence here.
Those of us who were born here – have no claim beyond being born here.
There is no “fairness” in this. Whether you get to be an american is entirely arbitratry.
You and I did not earn it. There is no worthy or innocent standard.
There are hundreds of millions throughout the world with as good a claim as any of us
Grow up. Starting with nature – this is ultimately arbitrary and capricious – the it is pretense to claim otherwise. Doing DACA, not doing DACA will ultimately be arbitrary and capriecious no matter what. The randomly fortunate will get to decide with no basis beyond emotion who else gets the blessings of america – with no real foundation for doing so.
Maybe it was a calculated fail. Trump gets to appear tough on immigration while also playing the victim of Evil Deep State Justice Roberts. It also spares him the bad election year optics of endless stories of deported Dreamers who look and sound like any other suburbanite American.
There are rare moments when I think that Roberts is being “the devils advocate”.
That if he rules wrong often enough he will piss off the right and placate the left getting Trump re-elected.
Unfortunately I doubt that is true.
Mr Kurtz, according to Bolton. The blame lies with trump. He’s the one who always claims to be a “stable genius”. Bolton along with countless others who used to work with trump point out just how incompetent he really is. Blaming others for the obvious is not a good argument. Trump has shown clearly a disdain for complicated things. He still believes he can override state governors on their decisions. He believed all he had to do was sign an EO. Obviously he was very wrong.
“He believed all he had to do was sign an EO. Obviously he was very wrong.”
That would be Obama.
Obama turned out to be right. Trump turned out to be wrong, and that is the problem right not.
The courts are not deciding based on the merits, but based on what outcome they like.
John say, the courts are deciding based on the question before them. The law states that in order to remove DACA all they had to do was follow the law (procedures). The trump administration in its haste did a sloppy job trying to end DACA.
The constitutionality or legality of DACA was not being decided. It couldn’t be decided because it was not the issue before the court.
“John say, the courts are deciding based on the question before them. The law states that in order to remove DACA all they had to do was follow the law (procedures). The trump administration in its haste did a sloppy job trying to end DACA.
The constitutionality or legality of DACA was not being decided. It couldn’t be decided because it was not the issue before the court.”
So much wrong.
This decision is so bad there is absolutely no logical way to thread the needle.
While the APA is a red herring – congress can not constrian the exclusive constitutional powers of the executive – the APA does not apply.
If it did the APA would be unconstitutional.
But even if the APA did apply – Roberts claim is that the APA was not followed – because it requires a rationale and DOJ/DHS did not provide one.
But they did – their rationale was that DACA was illegal.
The question of the legality of DACA was before the court because it was the reason for the recision.
One of the most fundimental flaws in this decsion is that because roberts deliberately blinded himself to the actual case in front of him the decision can not be fixed.
There is nothing that DIJ/DHS can do to comply with the APA which does not even apply, that Roberts can not pretend they did not do.
Roberts did not say – DACA was legal. He said that DOJ/DHS failed to provide a reason. And yet they plainly provided a reason.
Chief Justice Roberts is the worst Supreme Court Chief Justice in history! He needs a complete physical to determine if he is already senile or suffering some kind of neurological disease. This stupid decision is as bad as his Obamacare convoluted decision and his recent decision regarding freedom of religion during this pandemic (there is NO pandemic exception to the First Amendment). Under his leadership, there seems to have been far more 5-4 decisions than anytime in history. As President Jefferson noted, the greatest threat to our democracy is our unelected, lifetime appointed federal judiciary.
Roy, that;s overlstated. Roberts is not senile
“The ruling is based on procedural failures, not the merits or the underlying authority.”
In other words, if Trump’s lawyers had done their jobs and advised him correctly on how to revise or terminate the DACA program in accordance with law, he could have got it done
Basically what we see is that the “Republican infrastructure” has failed at supporting Trump’s leadership, that is, when they were not just openly sabotaging him, like Kelly, Mattis, Bolton, or some of these “FBI Republicans”
Well, if Trump wins again, hopefully he will figure out how to hire more competent advisors.
You seem to ignore the fact that DACA was unlawful to begin with and obviously had many more inherent procedural failures than President Trump’s decision to reverse the unlawful executive order.
“Roberts is not senile”
No, the question is whether he has been corrupted.
Trump’s the one who “needs a complete physical to determine if he is already senile or suffering some kind of neurological disease.”
I often disagree with Roberts, but his brain is clearly working much better than Trump’s.
So it’s okay for President Obama to unlawfully establish DACA, but it is not okay for President Trump to reverse this unlawful executive order?
LOL at your attempt to move the goalposts from your ridiculous claim that “[Roberts] needs a complete physical to determine if he is already senile or suffering some kind of neurological disease,” which is what I responded to.
Trump has syphilis; that explains almost all of it: Stormy Daniels, grabbing meow, Melania’s separate bedroom, blithering idiocy, ranting and raving and tweeting into all hours of the night, the hair, the Swiss colored skin cream, lots of stuff.
Mock Trump’s appearance, but at least he knows how to work it to his advantage. Then look at Joe Biden with his hair plugs and bad face lift and age spots all over his old pasty white skin…and you will see an old man who is clearly not up to the job. Not so with Trump.
the only country in the world where people break our immigration laws and get rewarded.
United Kingdom.
Glad to hear it (pending reading the ruling, which I might find problematic in its particulars).
I agree with the others — somebody is holding something over Roberts’ head. Either that, or in addition to that, he feels threatened by the mob. Perhaps Secret Service should guard the justices too, just to ensure my second theory isn’t correct.
DV – I heard a commentator the other day mention that the attack on Kavanaugh was not so much to get him as to send a warning shot across the bow of the Court that they could get to the Court’s families. This may account for some of the odd decisions that have been handed down.
This is not odd. It was poorly executed policy.
Turley wrote:
“The ruling is based on procedural failures, not the merits or the underlying authority.”
IE, Trump’s team failed to follow the rules. Now, Trump doesnt know the rules, these are specialized rules, but he was supposed to have lawyers who knew. I bet they charged a lot but now we see what?
Incompetence
Maybe next time Trump needs lawyers he should give some back benchers from outside NYC or DC a chance rather than selecting all his posts from BIGLAW STOOGES who stab him in the back
Do you not know that on the federal government’s side, these cases are argued by the Solicitor General and others in the DOJ, not by private lawyers?
Yeah, Duh. Don’t need you to remind me. You’re the one not getting it.
You obviously didn’t get the point. It was when the orders revising or terminating DACA were being drafted that Trump needed the best advice, not years later when they were being argued. You don’t get that? Of course you don’t. Who was on the “drafting team?” If you think you know, say names and give a citation to authority. The Solicitor General is not the answer. That’s just the guy trying to defend it years later.
Im here explaining to folks, Seth-Peter, part of what really went wrong with this. Of course, you don’t want people to understand, you like it when your adversaries fail.
I’m neither Seth nor “Peter” (whoever that is).
And the fact remains that you referred to “BIGLAW STOOGES,” when Trump as President isn’t relying on private lawyers whether to ague the case OR to “[draft] orders revising or terminating DACA.” Throughout the process, the people aiding him would be government employees.
CTHD you think so? Are you so very sure that they were “throughout” government employee lawyers? If so which ones? What were their offices and names?
Where’s your authority that this is how drafting works an XO works and regardless of how anybody else did others, how this one worked?
Or you can just admit you dont know, or you’re saying just in general one would think they would be, etc.
My thesis is these lawyers had names, and I want to know the names
This was a reply to you that became unthreaded:
https://jonathanturley.org/2020/06/18/supreme-court-rules-5-4-against-trump-administration-of-daca-rescission/comment-page-2/#comment-1968058
CTHD said ” What I do know for certain is that there’s no justification for your claim that Trump was “selecting all his posts from BIGLAW STOOGES who stab him in the back”
you can think whatever you like. BIGLAW gets to pick the mayor of Chicago now too. Where did Lori Lightfoot come from?
BIGLAW is a curse upon America. It’s a thing people need to learn about. If you don’t know what it is look up the term. Most people outside law don’t care but they should
Kurtz said: “Trump’s team failed to follow the rules.”
If he had they would have found new rules.
Mr. Roberts knew how he was going to decide. He only thought was how he was going to put a thin patina of jurisprudence on it.
Like giving corporations the same rights as an American, $$$Kaching$$$
Like passing the buck on gun control by sending it to the local bubbas to determine, $$$Kaching$$$
We live in an oligarchy that amuses itself by watching the simpletons argue legal mumbo jumbo. It’s all a question of attitude and performance. Obama broke all records deporting Hispanics during his administration. He used the broad brush routine first then designed deportations around those that posed a problem. Those that had no part in their coming here and were contributing, he deferred. They still have to perform well, keep the peace, and still may or may not get citizenship. Not much was made in the way of political hay. With Trump it’s all BS and political hay. First he lies like the rug on his head that murderers and rapists are pouring across the border, then he starts to build a wall that is next to useless.
You can argue the legal BS until the cows come home. It all comes down to attitude. An Hispanic kid that was brought here illegally and has spent most of their life here, and is going to university with a bright future is an asset to this country. A gang member gets the boot. Attitude. Life is not Black and White but Gray. The society progressed, deals with the Gray.
“Like giving corporations the same rights as an American”
Is there any corporation in existence that is not owned and controlled by people ?
Do people lose their rights when they act as a corporation ?
Yes, corp rights should be very limited compared to citizens, but most no one remembers why the founders set it up that way.
So two people together have less rights than each alone.
And 4 less still ?
And eventually if enough people get together they have no rights at all ?
Our founders did not set it up one way or the other.
All a corporation is, is a form of contractual relationship.
There is only one aspect of a corporation that is unique, and that is that the liability of a corporation is limited to its assets, not those of owners.
Would you require the members of a church to pay up if the church did something bad ? If greenpeace does something that causes more harm than it is worth would you allow those harmed to recover from its owners ?
What about unions – if they screw up can the individual members be made to pay ?
Protection from personal liability is the only facet of a corporation that is not just a contract.
SMH that you find it impossible to believe that Roberts disagrees with you for legitimate legal reasons.
The Justices are protected by the Supreme Court Police Dept. when they’re in DC and by the U.S. Marshals elsewhere.
I don’t trust Roberts wasn’t driven to get to this result. It may be that had the administration better articulated the policy justifications he would have voted differently. I don’t believe it. They would say the articulation was deficient. Roberts thinks his end results based judging protects the institution of the court. I think he is wrong. The court has become another political animal, except that they are unelected and have a lifetime appointment.
Hal– No matter what the Administration did Roberts would have done some pretzel logic to get the result desired in the Georgetown cocktail circuit. He is a disgrace. The Court has lost much of its moral and intellectual authority. Even lower federal courts treat its decisions with contempt when it suits them.
What is in Robert’s dossier?
Roberts is fine.
“The ruling is based on procedural failures, not the merits or the underlying authority.”
THIS WAS A FUMBLE. end of story. Trump’s advisors are incompetent. He better fire somebody and let us know who screwed this up.
Stop hiring lame backstabbers like Bolton, fed to you by the very people who hate you, eh Trump? Really seems pathetic to me this kind of failure.
But of course the Republican party was a total mess when Trump showed up, so it’s not surprising they have failed to support his leadership. With some notable exceptions, of course.
I’ll say this. If Republican system managerial types don’t get fully behind Trump and think they can have a life after that, they’re wrong. Right now the only thing that would cause me to lift a finger is Trump and 90% of the rest of them are slackers, laggards, and incompetents as far as Im concerned. This case confirms it.
What leadership? King Donald Cult?
What a joke.
Hal — Here’s my suggested articulation for the next round:
The previous President established this policy because A) he wanted to, and B) because he thought he could. I wish to revoke this policy because A) I want to, and B) I know I can.
The End.
This decision is fundimentaly no different from the stupid Census decision.
Though actually worse – in the Census Trump sought to restore a status quo.
Contra Roberts he was entitled to a presumption of justification because what he sought had been noncontroversially done in the past.
SCOTUS was potentially free to find Trump’s action unconstitutional (asuming a credible case that it was) as past unconstitutional actions do not justify current ones.
But absent a constitutional flaw. The legitimacy of a previously legitimate act are presumed.
What is in Robert’s dossier and when can we see it? JW get a FOIA request out to all agencies for it, now.
I wonder how well procedures were followed when DACA was established?
They weren’t.
And it wasn’t even an Executive Order, as pathetic as that legal authority is.
Barry Crapweasel just sent a memo to Nummnuts Napolitano telling her to stop prosecuting.
That’s it.
Young, that’s a good question. But the way it works, is that it’s easier to invent new rights than take them away.
this is a dynamic of modern administrative law that explains a lot of the proliferation of the endless entitlements that are not easily erased.
Boring stuff, technicalities, but there are experts in the field. Clearly, the experts weren’t on the “drafting team” in the first place. they should have been.
Kurtz– Read Professor Hamburger’s book on Adminitrative law.
I am familiar with it, and you probably know that it is a dissenting viewpoint. Admin law is here to stay. The complexity of society is not going down so it is not going away. I could say this applies to a lot of Richard Epstein’s critical commentary on American law too. U of Chicago law school loves to speculate in these ways but it’s not all that useful to operations happening in the real world.
Wait i see Epstein is at NYU now. Well, i used to “kvetch” with him after his speeches back when he was at U of Chicago decades ago
Dissenting viewpoints are not always wrong. Being familiar with Hamburger’s work is not a substitute for studying it.
dissents can be very smart and right in a lot of ways, sometimes they reflect an older thinking or maybe they reflect what is coming. they matter. but they are not the law, that is why we call them, “dissents”
i was also a fan of “freedom of contract” and “free banking” and a lot of other things that have gone by the wayside in terms of legal thinking. mostly these days i try and figure out what the law IS, not what i want it to be, and then how to get things done for my clients in context of what IS. they don’t pay me for my ideas of what it “should be” and for that I offer my opinions here for free. but it’s important to draw a distinction between what the law IS right now under existing precedent, versus what it should be, or what is a more coherent understanding that is not yet precedent, etc.
Trump’s lawyers should have helped him write the XO more effectively. that’s my main point. they failed and we are left here late in the day with zilch to show for all the effort on DACA.
“they don’t pay me for my ideas of what it “should be” ”
Correct.
“and for that I offer my opinions here for free.”
And yet according to you no one else is allowed to do that.
“but it’s important to draw a distinction between what the law IS right now under existing precedent”
But in Kurtz world that is impossible – because legal positivism means the law is what the court decides it is.
That is a future event, not a past one.
You say Roberts decision was predictable – but an enormous number of people did not predict it. Further it was not a unanimous decision, it was razor thin. In otherwords NOT predictable.
Trump is purportedly pushing forward with ending DACA again. And we are going to have a legal mess as that procedes.
The courts have already decided DACA is unconstitutional. You can agree or disageee that this decisions did that. But the 5th circuit did and SCOTUS did not reverse.
We have roberts nonsensical oppinion – any basis is that is not arbitrary and capricious is sufficient to toss DACA – but unconstitutionality – which is obviously not arbitrary and capricious is not sufficient – or is it ? We actually do not know. Because Toberts danced all arround that but did not decide the one issue that is ALWAYS infront of the supreme court.
After Trump moves forward with Roberts “do over” – what are the lower courts going to do ?
Using YOUR legal positivist approach – If DOJ/DHS – offer any reason that is not arbitrary and capricious DACA is deed – in the next few days or weeks. And “its unconstitutional” is sufficient still. And we have ATLEAST one final (thus far) authority that says it is – again your legal positivism.
So following YOUR legal positivism – the first challenge to DACA recision II shoudl fail and no appeals court should take it up – SCOTUS has according to you spoken. Roberts was clear – ANY reason that is not arbitrary and capricious is sufficient.
How much do you want to bet that is NOT what will happen ? How much do you want to bet that no matter what Trump’s lawyer’s do there will be another nationwide injunction ? And this whole mess will be before SCOTUS again ?
Frankly, my guess is that a number of recent SCOTUS decisions had nothing to do with the merits, they had to do with SCOTUS and particularly roberts trying to avoid making SCOTUS an issue in the election.
Regardless, Recission II gets to Roberts. What stops Roberts from making up some new excuse ?
According to your legal positivism NOTHING.
Legal positivism as you have expressed it is unmored to anything.
Contrary to what you claim we do not EVER know what the law IS. we only can guess as to what it might have been, and maybe what it will be. But we have no assurance.
“or what is a more coherent understanding that is not yet precedent, etc.”
Legal positivism as you have expressed it is independent of precedent.
There is no fundimental distinction between telling a current Justice – you are wrong, because precident says X, and you are wrong because the constitution says Y, and you are wrong because the law Should be Z – except that those arguing before SCOTUS will find a way of arguing those without openly saying “you are wrong”.
“Trump’s lawyers should have helped him write the XO more effectively.”
They can’t – your legal positivism means they can only guess.
“that’s my main point.”
And a bad one.
“they failed”
Yes, they failed to anticipate that Roberts would disregard Article VI
Ilya Shapiro is not pleased with this decision either.
Gary Lawsoj, who probably wrote the Administrative Law text you used, writes favorably about Hamburger’s thesis.
Correction: Gary Lawson
I cant recal., It was thick and it was blue. I had murphy’s book on contracts and tribe’s book on constitutional law.
certainly a dissenting view can be correct or more well thought out or better. I was just saying that the decision is not really a flier, it’s pretty well in the middle of possible expected outcomes
you can go back to here to review the oral arguments
https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/
and it sounds like Republican (nut not Trump admin) lawyer Ted Oleson was pretty effective– on behalf of the DACA recipients!
Lawson ‘s book is published by The American Casebook Series and is in at least the 8th Edition.
Sounds like yours was Straus, et al
could be i dont remember & got rid of it
OT:
If the story of 911 is unbelievable, that building 7 just fell down & it turns out a missile hit the Pentagon then one of the questions becomes: What happened to Ted Olsen’s wife????
While Somin found Roberts actions proper – while somewhat damning it.
He is claiming that it is so narrow as to not exist.
Roberts purported flaw is that DHS provided no rationale besides that DACA was illegal for repealing it.
To must people – that is a perfectly good rationale and is not in anyway arbitrary and caprecious.
But Roberts found that was not sufficient.
But DHS did actually provide a rationale – and Roberts oppinion states that almost any rationale will do – it is not SCOTUS job to weigh rationale’s
But the DHS rationale was not acceptable – not because there was something wrong with it, but because it was put out a few months later and therefor could not be considered.
That is equally ludicrous. That is essentially saying that precisely what is infront of the court at this instant is being overturned – but what the administration has actually done in the real world is not.
Roberts is not actually saying that the removal of DACA has to be redone.
He is just saying that DHS needs to say “do over” and put forth the same thing it has already done – but all at the same time, and that DACA will remain inoperable for many more months, until SCOTUS gets it again and says “oops” not actually aribitrary and caprecious.
This is a remarkable display of judicial stupidity and inefficiency.
The court has demanded nothing more than a reason, and when provided one said – right not we can not see one. But bring it back friday and we will be able to.
It is irrelevant whether it is a dissenting view.
The majority of SCOTUS is reflected in Plessey v. Fergesson.
All that matters is whether it is correct.
You have refused to address any of the constitutional claims. But I realized there is another.
APA can not apply to any actions that a president has the constitutional power to undertake on his own.
Congresses only power to restrict the executive in areas where it can act constitutionally on its own is to restrict funding – that is it.
The APA can only apply to executive actions that are pursuant to legislation.
Congress can only constrain the powers that congress gives the president.
Not the ones the constitution give him.
While I would argue that Obama did not have the unilateral authority to enact DACA.
Even if you conclude that is wrong – and Obama did have that authority.
Then the enactment of DACA is not subject to APA – because it is not a power that congress has the abiltiy to constrain.
And the removal of DACA is not subject to APA – for the same reason.
The entire APA argument that SCOTUS has more recently bee relying on rests on the presumption that the APA supercedes the constitution.
This APA nonsense is exactly like the PPACA is a tax – but it is not garbage.
It is a transparent ruse to allow Roberts to make policy decisions.
That is not SCOTUS’s role.
“It is irrelevant whether it is a dissenting view.
The majority of SCOTUS is reflected in Plessey v. Fergesson.”
WRONG. ONLY TO PERPETUAL THEORIZERS DOES IT NOT MATTER
That is you John, on the soapbox every day theorizing some idealistic liberterian claptrap
“All that matters is whether it is correct.”
WRONG. CORRECT IS ABOUT AS MEANINGFUL AS WORDS LIKE JUST OR TRUE. See Thrasymachus, Plato’s Republic, 336 “justice is what favors the strong”
A practicing lawyer, which you are obviously not, needs to know what the law IS, a hundred times more than what it SHOULD BE. Opinions like “Should be” are like anuses, we all have one. Only a clear understanding of what IS can be made into something useful
See if Trump’s lawyers were all stuck with SHOULD BE and they did not reckon what IS like it or not, then they failed to advise the client.
Which they obviously did fail, or this would have worked.
Turley said: “The ruling is based on procedural failures, not the merits or the underlying authority.”
See if you can figure that out before you blab another twenty speeches from your understanding of John Locke, who is not on the SCOTUS at this time and never was.
John isn’t standing on Locke but on the Constitution. Remember, we used to have one.
And partly the declaration – the social contract is in there, the justifcation for government is in there, the ownership of government and law by the people is in their.
And finally, Kurtz likes to fixate on the is.ought problem – failing to realize he and roberts are on the wrong side of it.
Yes his decision IS what it is. But reality is what actually IS.
SCOTUS has quite frequently told us what the law IS and been obviously wrong.
We are obligated to abide by whatever idiocy 5 of 9 spout until it can be fixed.
But that does not make SCOTUS correct.
Further the more disconnected from what IS SCOTUS becomes the more dangerous things are.
Trump was elected – a signficant portion of those who elected him expected the restoration of the law as it IS.
The more games SCOTUS plays the more dangerous things become.
The declaration tells us that when government fails, we are free to alter or abolish it.
When we have tried to alter it. When we have succeeded in making the changes that were needed to restore the rule of law – to go back to what the law IS not what it OUGHT, and still the government pretends and prevents us from altering it.
THEN the next step is abolish.
What has gone on the past 4 years – from the media, from the left, from democrats, from the courts, from Obama retreads, from the deep state.
This #resistance – is not to Trump. It is to the restoration of the rule of law that those who elected Trump expect.
We saw peaceful armed lockdown protestors a few weeks ago.
What happens when the armed and currently peaceful protestors finally get fed up ?
How do you think it would go if those who were protesting the lockdowns started behaving like BLM ?
listen John, don’t get too overheated. I thought you realized?
they threw the constitution out on the administrative state subject by 1939. Im telling you this and you’re mad at the messenger!
since then, there was also the late sixties, when they threw a lot more out
they just got done telling all us to stay home, and then turned around and green lighted massive “peaceful protests” and a lot of criminal conduct besides. they do what they do because it works and they can! they aren’t bothered nor restricted by any rules of morality and certainly not theories of law that lack current precedential status.
So all this big talk about constitutional theory is old hat. we eat that old hat and just had to take a little bite more.
The fact is, we shut up and take it because we have to. We were whipped before we were born– if all we could ever do was rely on pieces of paper for our “liberties”
I’ll share a rhyming couple from a poem by Redbeard:
“Liberty has never been won,
except by deeds of war.”
And tie that into a little Sun Tzu:
“The greatest victory is that which requires no battle”
Add these two premises up wash it down with some legal positivism and that will banish all these Enlightenment fantasies from your mind. It will be bracing, but the why why why will evaporate and understanding will flow in like sunshine on a cold but clear winter morning
“listen John, don’t get too overheated.”
Stick to the arguments. You have no knowledge of my mental or emotional state.
“I thought you realized? …”
And your response to the argument this was morally and logically and legally wrong is
“Que Sera, Sera” and legal postitivism ?
I am not going to disagree with you that the progressives have made a hash of things.
“Liberty has never been won,
except by deeds of war.”
East Germany 1989
And tie that into a little Sun Tzu:
“The greatest victory is that which requires no battle”
East germany 1989.
>“It is irrelevant whether it is a dissenting view.
>The majority of SCOTUS is reflected in Plessey v. Fergesson.”
“WRONG. ONLY TO PERPETUAL THEORIZERS DOES IT NOT MATTER”
What is it that I wrote that is theory ? that is wrong ?
Are you claiming that Plessy was good law ?
“That is you John, on the soapbox every day theorizing some idealistic liberterian claptrap”
Very little I have argued regarding this case is libertarian. Most is just the normal logic that is supposed to be part of statutory and constitutional interpretation.
“All that matters is whether it is correct.”
“WRONG. CORRECT IS ABOUT AS MEANINGFUL AS WORDS LIKE JUST OR TRUE. See Thrasymachus, Plato’s Republic, 336 “justice is what favors the strong””
You are aware that we are 2 millenia past Plato ?
Should I try to sell Rousseau ?
“A practicing lawyer, which you are obviously not, needs to know what the law IS,”
You and Roberts are OBVIOUSLY on the wrong side of the IS/OUGHT barrier.
And cut the $hit about owning the law. The social contract is with the individual – though I guess you would not be familiar with that as the western social contract concept postdates plato by a couple of milenia.
You do not own the law, just because you are a judge or lawyer.
Need I cite the declaration again ? The more illogical and lawless the legal system becomes the less consent you have from the governed and the more likely very bad things will happen. The good news is you actually have to F’up alot. people tolerate an incredible amount of failure in government. But do not pretend you own the law – you don’t. The law serves the people – not the other way arround.
Your on the wrong side of the is/ought barrier,
What “is” is not some judicial opinion.
“Turley said: “The ruling is based on procedural failures, not the merits or the underlying authority.””
That is also what Somin said – as well as that the procedural failure was so tiny as to be meaningless. That DHS has already met the requirements that Roberts imposed by fiat. He just refused to look because they were not met on some arbitrary day.
From what I gather Somin’s review indicates that DHS could just re-rescind DACA tomorow using the rationale that the provided to court which is chose not to look at for probably erouneous procedural reasons and say there – Done.
And Roberts would be compelled to find an actual substance reason next time.
But the elephant in the room is Roberts said the APA requires that there be a reason that you can not change policy on an arbitrary and caprecious basis.
As the disent noted – “the prior policy was illegal” – is a reason and it is most definitely not arbitrary and caprecious, and that reason is one you must address on the MERITS not procedurally
One of the reasons you have to read the dissent is that it points out that the majority opinion is contradicted by the facts of the case.
I have not quoted Locke.
The social contract goes well beyond locke the legitimacy of government and western legal philosophy rests on it – you know some of that stuff that happened 2 milienia after plato ?
I have quoted the Decalarion of independence – are you going to say that some oppinion by Roberts is more important than the philosophical basis for western law and government as well as the standards that government must meet to be legitimate?
John– Very well said. The APA was just the tool, ruse, Roberts chose to use. Suddenly the APA supersedes the Constitution. I agree with your earlier worry that society is on the edge and may not come back. If old movies are still available in a few years people will watch them and wonder where we all went astray and how it all came apart.
I do not know if society is on the edge. I am just postulating it might be.
I grew up in the 60’s I remember Barely the jfk assassination, as well as RFK and MLK and the summer of rage, the vietnam war, the imminent prospect of nuclear anihilation.
For a long time I have argued AGAINST people saying things are going totally to hell saying – we were more bitterly divided then.
But I am changing my mind. What divides us today should be inconsequential.
I have argued here that the police are not systemically racist.
But lets say they are. They are still far better than in the 60’s or any time before today.
But not if you listen to the left.
I am actually not a big Trump fan. But I am not stupid. Things could be much worse – we could have Obama, or Bush or Clinton or Biden as president. Ir any of the twelve dwarves at the democratic debates.
But I am told every day – not “orange man bad”, but “orange man existential crisis, and end of the world” – if you think that you are bat $hit insane.
But alot of people think that. Smart people. important people, tens of millions of people.
And that is dangerous.
I want to see alot of the ideas of reforming the police happen.
But I also understand that if we keep telling the police they are evil racists,
They are going to stop doing their jobs. I am told that Atlanta had an unofficial work slow down today.
I am not prepared to see crime rates double just to get the reforms I want.
BLM has spiked its approval rating in the past month.
How long will that last if crime accross the country spikes ?
I will sell BLM under the buss in a second to reduce the odds of getting robbed.
I will tolerate some actual racism to avoid chaos.
And i have a sense that we are way too close to anarchy.
I hope I am wrong.
For the idiots who think Trump is a fascist.
Real fascists are the ones who step in to “save us” from real chaos.
They come to end chaos, not create it. The left is doing its best to bring about exactly what it fears.
“But the way it works, is that it’s easier to invent new rights than take them away.
this is a dynamic of modern administrative law that explains a lot of the proliferation of the endless entitlements that are not easily erased.”
If what you say is true then the APA is unconstitutionally overbroad.
“Boring stuff, technicalities, but there are experts in the field. Clearly, the experts weren’t on the “drafting team” in the first place. they should have been.”
Again – the APA does not trump the constitution. that should be obvious – even to you.
Say, APA has been reviewed judicially a thousand times. It may be theoretically unconstitutional, it is certainly something that was never envisioned as a possibility by Framers who thought there were 3 branches not four– the fourth being the administrative branch– which at times both makes law, executes, it and judges it.
in short admin law is an abomination from the perspective of Montesqieu– but it handles more and judges more cases every year than any other system– where? which? Social security cases
we need to make distinctions between what the law is and what the law should be. or how applied. lawyers and their clients do make both sorts of arguments, but you have to know which is which when you are doing and saying things
the SCOTUS and to a lesser degree state supreme courts, are in the position of often saying both what the law is, what it should be, or just making what ‘IS” something different before and after a case, when after it has become what they think it should be.
it’s hard to get around this dynamic in a common law system with judicial review
what i failed to say, is we can think it is or should be unconstitutional this or that, but what we think is not a holding on the parties in the case. only what the judges decide, is the law. we just have opinions.
in all our constant american talk about “equality” we can see that we have hierarchies of our own. anarachists can whine about that, but, I just live with it
If SCOTUS decides the sun does not exist – that is not what IS.
When SCOTUS makes a mistake it IS a mistake. That is not an opinion – it is a fact.
We may be bound by “bad law” but that does not make it good law.
In fact we risk delving into where it is bad law, but enforceable and at the same time not binding.
Grow too far in that direction and you end up with the american revolution.
It would not be hard to paraphrase the declaration of independence substituting Roberts for King George.
We are likely a ways from that – though the level of chaos the left is inflicting brings us ever closer. but the consequence
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,”
We need to fix Roberts and SCOTUS because the ultimate result of a judicial system that is illogical and contradictory is lawlessness, chaos and a failure to serve its purpose. And that requires abolishing it.
The Founders did understand administrative law. They just knew it as unchecked royal prerogative and they resisted it. Our theory of government evolved from the English Civil War which was also opposed to royal power. Our Administrative State claims greater powers than those that got Charles I beheaded and George III kicked out.
Young, That is true, the administrative state does show features of undivided state power.
I also agree the Founders gave us a constitution with clear demarcation of branches into executive, legislative, and judicial.
I am simply pointing out, that the constitutional concerns about that being bad, for so many various reasons, are not the current state of the law as it is. These criticisms of the adminstrative branch, were generally over-ruled many decades ago.
So, it does not matter on a certain level whether I like that or not. I actually dont like it.
I am sure you understand what I am saying, the distinction between what the law is and what the law should be according to our theory of limited government, are two different things.
John does not permit this distinction and he says my distinction is just “Stupid”
and I say John is full of empty theory without regard of reality. Which is, to borrow from St Paul in the Epistle to James, faith without works, a noisy gong or clanging cymbal.
Even mill noted that no king could ever be a tiny fraction as oppresive as a democracy.
In a common law system such as we have one can argue what the law should be in a particular case drawing on generally received legal principles. See Canterbury v Spence for an example of the process. That is entirely different from having courts legislate or choke executive authority with administrative law.
I would be shocked if the APA has ever been applied to an executive action that was not rooted in legislation.
Regardless, Kurtz, You continue to make the stupid argument that something is constitutional legal or correct, because it has been reviewed before.
Plessey V. Furgesson.
Or myriads of other bad decisions.
SCOTUS erred here – the more I read Somin it is quite litterally a one time one situation ruling with no substance.
Roberts is even wrong on his on logic – we should not be wondering how the chief justice of the supreme court passed the LSATs.
Roberts said DHS provided no rationale for revoking DACA.
DHS claimed DACA was illegal – that IS a rationale. It is by far the most important one. If true it is the only one needed
Yet Roberts pretended that rationale was not present.
The more I learn about this decision – it has nothing to do with the law or the constitution – it is just petty obstructionism.
His own oppinion finds there is plenty of reason to find for DHS, he is just choosing not to.
I am surprised the dissent is not more brutal
This is precisely the kind of nonsense that has driven conservative to vote for Trump in the first place.
I think that Trump needs to move the Supreme Court to Montana.
Sipreme Court justices keep getting the progressive virus when they move to DC.
John Say, you’re a condescending know it all, who doesnt.
I am not being very nice I realize. But you are suck a cocky know it all, I have no taste for it. I will simply try and not insult you as you have insulted me.
I have a wee bit of patience for you because you espouse many of the errors which crippled me when i entered law school. Thankfully, I dispensed with most of them in time for final exams.
Presently, your arrogant tone reveals the enmity of a novice who resents correction.
The fact is, the law is what the SCOTUS says it is, right or wrong, until a new SCOTUS says something else. This is indeed, the much derided “legal positivism” of Oliver Wendel Holmes. And it is precisely our system and even Trump has and must aquiesce to that. Or face a “constitutional crisis,” a subject that is more complicated than this simpler dispute so let’s not go there until you are ready.
Now, allow me to inform you, that lawyers call a challenge to existing law, a “novel argument” or perhaps, a re-visitation of an old legal theory to new facts, which is a “good faith challenge to existing law”
but if we don’t know what the law IS, like it or not, then we FAIL
Just as my much liked President Donald Trump’s team FAILED to get DACA cancelled effectively, because of what Justice Roberts has said. In short, they had a theory, and they acted on it, and found out after the fact, their theory was wrong. it obviously was wrong, and Turley has commented on it, and you missed entirely the point of what turley said obviously, even though I recopied the salient point about five times.
Now you can pretend that Roberts was just making it all up, which would be a baseless fantasy, or you can credit the possibility that his opinion fell within the range of the law AS IT IS whether you like it or it is even BLATANTLY WRONG or not.
Now, instead of telling me I am stupid you arrogant fool John Say, why don’t you educate yourself about “legal positivism” which is simply the proposition that the law is what the authorities say it is, like it or not, and you need to figure out what that is before you go criticizing it on whatever merits
https://plato.stanford.edu/entries/legal-positivism/
“The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.). Austin thought the thesis “simple and glaring”. While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.”
Mr Kurtz – are you telling me that John Roberts believed in this APA thingie before this case was brought? And that even unconstitutional EOs should have to go thru it? Do you really think he thought that before this case was ripe?
I beleive Roberts made an APA argument with respect to the Census case.
It was bad then, but it is worse now.
Yes Paul I do believe that was Robert’s thinking. It is black letter law. the idea is that if a right is somehow “Created” by an order, (like, the “Right” of DACA program recipients to “stay” in spite of them being illegal immigrants because whatever) then, curtailing it may fall within the ambit of APA. I remember the conversation coming up in law school a ways back in both constitutional law and administrative law.
The shock and outrage over this decision is understandable in light of our illegal immigration problem, but, the outcome of this case is not really surprising to me.
And that is why I say the President’s advisors failed him in assisting him in preparing this order. Incompetence. All this gibberish and grandstanding is obscuring a key point Republicans should want to grasp if they want to win. Winning is more important than theoretical grandstanding about outcomes that are patently impossible now like ending our system of administrative agencies as such.
if an unconstitutional action creates a right – there is no right.
What if Obama extended his dreamer order to every person on the planet who wanted to immigrate to the US ?
That is obviously unconstitutional,
but aside from scale is otherwise no different from DACA.
By your argument the some 360M people world wide who desire to come to the US would now have a right enforceable by US courts, that would require following the APA to infringe on.
Kurtz, you are arguing nonsense.
And please lets dispense with the libertartian insults.
My criticism of you bad logic – is not libertarain. Logic has no ideology.
wrong, under existing law, that is to say, the law you don’t care about because you are an amateur, but under existing law, “unconstitutional rights” most certainly can be created, and until a higher court says they are unconstitutional, they may not be “unconstitutional” they are actually presumptively valid. depending on how they come up. in this case it was DACA but the situation has existed many times before. i told you this was well within the range of expected outcomes which is based on what the law IS not just what bigmouths like you want it to be– but you are an arrogant jerk and think you know better. ok, whatever!
but that legal positivism thing you’re trying to dispense with all the time is sticky. it keeps on coming back at those who want to kick it out of the way like tar baby. well, sorry, and if you need a precedent to figure it out, at least you wont have to look far.
the logic is all much more simple than pretzel brained guys like you have twisted it to be. pick any illiterate lout out of jail and he understands what the law IS can be wholly different than what somebody WANTS IT TO BE
“wrong, under existing law,”
Would that be the law that Roberts made up ?
Does it say that in the APA ?
Is there someplace in the constitution were it says that the powers granted the executive are really powers of the legislature ?
“but under existing law, “unconstitutional rights” most certainly can be created, and until a higher court says they are unconstitutional, ”
You are the one fixated on this legal positivism – so you should be able to find plenty of examples.
I can think of numerous instances were the courts have F’d up. But I am aware of no instance were the courts have said an unconstitutional bu enforceable right exists – please enlighten us all – find the clear example of that.
“they may not be “unconstitutional” they are actually presumptively valid.”
Nope – if something is not constitutional it is not inside the power of the federal government at all.
This line of argument is just logical (and legal) nonsense. You have just found another way to legitimize Dredd Scott.
“in this case it was DACA but the situation has existed many times before.”
Then you should be able to list many examples.
“i told you this was well within the range of expected outcomes”
Of Course it was – Roberts does not give a crap about the constitution – nor do 4 other justices.
Kudos, you can predict stupidity.
“which is based on what the law IS”
Nope – not constitutional – end of story.
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
Nit the tiniest bit of legal positivism there.
“not just what bigmouths like you want it to be”
Ad Hominem – not argument.
“but you are an arrogant jerk and think you know better.”
Ad Hominem – not argument.
“but that legal positivism thing you’re trying to dispense with all the time is sticky.”
Kurtz, my guess is that you are not even advocating for your own theory correctly.
Though i am no fan of Holmes.
Regardless, I am arguing the logical error of what YOU are selling.
If that actually is the theory of “legal positivism” – it is still error.
“it keeps on coming back at those who want to kick it out of the way like tar baby.”
So ? Dredd Scott is no longer the law of the land, nor is Plessy, Nor are the Nazi Race laws.
That did not happen because people like you won your argument on legal positivism. It happened because you LOST.
“the logic is all much more simple than pretzel brained guys like you have twisted it to be.”
The only pretzel logic is yours.
You are not only wrong – you are obviously wrong.
“pick any illiterate lout out of jail and he understands what the law IS can be wholly different than what somebody WANTS IT TO BE”
Nope, they know neither. What they presumably know is right and wrong – the foundations of the law.
The jury does not go – did he know what the law is.
I would further note that if a jury choose to ignore what A judge tells them is the law:
They can not be prosecuted,
and the decision of the jury is not appeal-able.
Another “legal positivism” fail.
Kurtz– You make a thoughtful and powerful argument but it is the type of argument that leads me to think that philosophy has little to offer law except, perhaps, confusion.
I think it was Holmes who said law is what judges say it is, maybe in his work on the common law, and that is true in the literal application when a case is before a judge.
But why do the judges say what it is; what sources do they draw from? Precedent surely, but the precedents are drawn from deeper wells, a community sense of what is just and customary and drawn from what is written into statute, but not without analysis.
Remembering the deep foundations of law, Holmes’ statement seems arrogant, true locally but mistaken generally. That is why we can sometimes say with confidence that a statute is wrong or a line of precedents has arrived at fundamental error or that a judge, or justice, needs correction.
The law is what it is, but challenge its reasoning when it is wrong. Roberts is wrong. The foundations do not support his opinion.
Holmes also said “three generations of imbeciles is enough”
He said it. Apparently he was wrong. And who would have thought so many would become judges and politicians?
“But why do the judges say what it is; what sources do they draw from? Precedent surely, but the precedents are drawn from deeper wells, a community sense of what is just and customary and drawn from what is written into statute, but not without analysis.
Remembering the deep foundations of law, Holmes’ statement seems arrogant, true locally but mistaken generally. That is why we can sometimes say with confidence that a statute is wrong or a line of precedents has arrived at fundamental error or that a judge, or justice, needs correction.
The law is what it is, but challenge its reasoning when it is wrong. Roberts is wrong. The foundations do not support his opinion.”
This is a well formed thought and the higher we go in the hierarchy up to SCOTUS the more they actually need to look to those deeper foundations of law.
However, I am not sure he could have dispensed with this so easily, as the dissent or at least one of them suggested, keeping in mind there was more than one dissent. It might have had a broader impact on the APA
And, those effects might give the POTUS as an office with even broader range of power which, once Trump is gone, might work a lot more against us than letting DACA stay in place.
Again, there is a current ATF issue under discussion which may be formed into a proposed new “pistol brace” rule subject to APA — however, if a future Democrat president just skips the “notice and comment” process and heads directly to an XO to implement his idea of what gun controls should be, above and beyond the explicit overall guidelines of the NFA as a statute– well, this case here is the kind of case that might work to limit just hat kind of XO dictate.
“This is a well formed thought and the higher we go in the hierarchy up to SCOTUS the more they actually need to look to those deeper foundations of law.”
And yet Roberts did not.
“However, I am not sure he could have dispensed with this so easily, as the dissent or at least one of them suggested, keeping in mind there was more than one dissent. It might have had a broader impact on the APA”
Of course he could Even DACA itself stated plainly that it did not create any rights (because if it did it would be unconstitutional).
To the vast majority of people this is obviously a game to circumvent the constitution.
“And, those effects might give the POTUS as an office with even broader range of power which, once Trump is gone, might work a lot more against us than letting DACA stay in place.”
Pretty much the opposite. What Roberts has just said is that Trump or any president can put in place unconstitutional programs by EO, that could take more than the term of the next president to displace.
And that is if we are lucky enough to get a president that actually wants to get rid of them.
“Again, there is a current ATF issue under discussion which may be formed into a proposed new “pistol brace” rule subject to APA — however, if a future Democrat president just skips the “notice and comment” process and heads directly to an XO to implement his idea of what gun controls should be, above and beyond the explicit overall guidelines of the NFA as a statute– well, this case here is the kind of case that might work to limit just hat kind of XO dictate.”
I do not know the ATF case you are talking about, but whatever it is, you have the logic reversed.
DACA was implimented by XO, It did not follow APA – according to the XO if did not have to – because it was not tied to legislative action.
Obama was pretending that it was constitutional. DACA is not constitutional.
Yet Roberts has claimed it must stay until he says get rid of it.
If as you say a future president skips the “notice and comment period” (which was not part of Roberts decision), and impliments it – he will have done exactly what Obama did with DACA and we will not be able to get rid of it.
I will address a different issue.
In US v Texas – affirmed by SCOTUS, the 5th circuit found various problems with DACA – including that the law itself violated the APA.
In 2016 SCOTUS affirmed the 5th Circuit
After Trump’s election US v Texas was Stayed in expectation that Trump would recind DACA which he did.
As best as I can tell DACA has not been “the law of the land” since 2015.
Given that SCOTUS has ruled the 5th Circuit Stay can be lifted, and the 5th Circuit can kill DACA.
And that is not likely apealable as US v. TX has already been to SCOTUS.
“John Say, you’re a condescending know it all, who doesnt.””
Pot, meet kettle.
“I am not being very nice I realize. But you are suck a cocky know it all, I have no taste for it. I will simply try and not insult you as you have insulted me.”
Regardless, ad hominem is still not argument.
I do not beleive I have insulted you – if I am wrong about that – show me and I will appologize.
I have insulted your argument. That is not the same thing.
“I have a wee bit of patience for you because you espouse many of the errors which crippled me when i entered law school. Thankfully, I dispensed with most of them in time for final exams.”
Mr. Kurtz, My wife went to UofP as an adult. She took the train home every night and studied, Much of the time her study partner was … me. She graduated Summa.
Guess who tutored her for the bar ? She nearly clerked for a federal feeder judge, She did clerk for a federal judge. She is a prominent criminal appellate lawyer and I am still the person she goes to for constitutional law.
I do not have the temperment to be a lawyer. I do not tolerate fools well and the vast majority of judges are arrogant fools. Telling them that is not effective advocacy even if it is true.
That said you rant about administrative law. That is quite often practiced by other professionals. And I am a professional. In fact, I have multiple professions.
One of those requires far better logical skills than law, and is completely unforgiving about logic errors. I am very good at logic. I have to be. One of my professions requires it.
The other profession is architecture where one of my specialities was building codes. I have spent about 25 years arguing administrative law in front of administrative law tribunals. You do not have to be a lawyer to do that. And I have an excellent track record. My clients have been universally happy with the results, and I have the respect of those I have appeared before. And they have an attribute that most court judges do not – they are not arrogant fools.
You claim I am a “know it all” – look in the mirror.
“Presently, your arrogant tone reveals the enmity of a novice who resents correction.?”
Again – try a mirror.
“The fact is, the law is what the SCOTUS says it is”
Nope – you confuse truth with power. You do that constantly.
SCOTUS has power – they must be obeyed. That is all.
Sometimes they are right, sometimes they are wrong.
The law however, is what it is regardless of what SCOTUS says.
Worse still When what SCOTUS says is wrong – they actually undermine “the law”.
In fact you are even wrong about Power – as the declaration of independence notes – the power of government comes from the governed.
The american revoltion demonstrated that. If you are old enough you will remember a moment in 1989 when the people of one of the most repressive and “powerful” regimes in the World – East Germany, peacefully said “no” and the govenrment vaporized. We nearly saw the same at tienman square – and do not doubt the Chinese government knew that. Why do you think the conjflicts in Hong Kong right now are so significant ? They are people attempting to withdraw their consent to be governed. Look at it. It takes enormous amounts of force to overcome that.
When SCOTUS F’s up it undermines the power of government. Each mistake is only a grain of sand, but eventually the grains add up.
You claim I am naive, but you have learned nothing about the power that you seem to think is so critical.
“And it is precisely our system”
You share a delusion with the left – that the system is designed rather than discovered. This not “precisely out system” – it is merely what has evolved so far.
I am not so at odds with it as you think – you keep lecturing me on thing that nearly everyone knows – as if you are educating me – and you posit my arrogance.
But you forget or do not know so much. It is not some subsequent SCOTUS that magically at whim changes the state of the law. It is challenge and argument and logic and the consequences of error. Things do not get fixed because Gorsuch has indigestion one night and the next dies say – lets try something different. Bad SCOTUS decisions are changed by ARGUMENT, By facts, logic reason.
Maybe not by the exchanges you and I are having, but by similar exchanges by others.
Your rant that “it is what it is, and you must accept it” – is total bunk. It is also the road to hell. Roberts erred, I am not close to alone in that assessment. 4 other justices made damning counter arguments – some of the same ones I am making, and many lawyers far sharper than you are also making some of the arguments I am making.
So when you are lecturing me – you are also telling a whole army of legal minds that have a far better reptutation than you or I that they too are naive idiots.
I am fully prepared to stand up and say to Roberts “I am right and you are wrong”.
Are you prepared to do the same to the 4 disenting justices ?
I am not asking you to tell them Roberts says you are wrong.
I am asking you to stand on your own two feet. Make you own argument – yourself.
So far I have not seen you do that.
Your counter continues to be “that is the way it is” – that is not logic.
“Just as my much liked President Donald Trump’s team FAILED to get DACA cancelled effectively,”
Wrong – they failed to anticipate that Roberts would conflate the constraints on changing the implimentation of legislation with changing the implimentation of purely executive powers.
They failed to do so – because Roberts is in error, and it is very difficult to anticipate the errors that others will make.
There is also another pretty obvious issue – one that guaranteed their failure no matter what – which we have seen repeatedly – and long before Trump.
Roberts has no interest in the constitution His rulings on pretty much everything are just made up mush. He decides the outcome he wants and then manufactures an opinion. That is not a game that you can win. If Roberts has decided the outcome against you – the only route to a valid decision is to persuade one of the left judges to go along. Fortunately – or maybe worse – Roberts is not inherently predictable. You can not know how he will decide based on the constitution, based on ideology, based on his own history. He tends to lean more conservative overall. But he has no principle of any kind that informs him. As a result he quite often contradicts himself.
You talk about the process by which decisions are reversed.
You presume that Roberts actually sets precident. He almost deliberately seems to avoid that. His decisions are often deliberately structured to be on offs.
Even this decision – it has absolutely no precidential value. Even if you accept the APA applies to something that is not derived from actions of congresses, and that you can duck the issue that the action being rescinded was recinded on the claim that it was ilegal – a claim roberts does not address, The core of the decision becomes – I decided not to look at your rationale – which even I admit I would likely have to defer to because of a timing glitch that i do not have to care about – but I have decided to hang my hat on.
DHS could fully consistently with this decision re-recind DACA today, using the rationale that Roberts refused to look at.
And there would still be no predicting how Roberts would respond.
You can not work to reverse decisions that are deliberately structured to have no precidential value.
It is unlikely you will ever see this decision cited in the future. That is not accidental.
It is intentional. It is commonplace is most of Roberts decsions.
I am hard pressed to think of a roberts decision that even if I agreed with the outcome, had any constitutional foundation
“why don’t you educate yourself about “legal positivism” ”
Why would I want to more deeply educate myself on a thesis that is WRONG on its face? This is a proposition that the nazi’s were only wrong because they lost. Why is it that we should place any weight in a legal thesis that has no moral foundation and provides fake justification for immorality.
Put simply your legal positivism fails reductio ad absurdem.
It is logically false. PERIOD.
there is so much wrong with that long winded gibberish john but the apparent blind self confidence blinds you to it.
“This is a proposition that the nazi’s were only wrong because they lost” [sic-nazis is the plural of nazi, not apostrophized]
No, not ONLY. But in respect of German law, it is what the courts say it is., Now it is what they say it is, and sometimes it is “wrongful” in the sense of stupid, but it IS what they SAY it is. This is precisely what law is. As any common hoodlum understands. And you have tied your brain into a big pretzel thinking the law is anyhing besides what the government in power says.
Not until a new regime takes power and redefines the law, sufficiently, does it change
Trump bit off more than he could chew. He could have bit it off differently and won. That was Turley’s point. But you have been busy here now for days arguing with this important insight because you wanted to advance some legal notion of your own which is in a word, archaic. And not current law. See the law that matters for the US is the current law not however Moses, or Madison, was thinking. Moses and Madison are influential, but, what matters is current precedent and current statutes and how they all weave together.
Trump’s legal advisors failed. Why are you obscuring this? We should demand that Trump’s lawyers do better. Not give some archaic legal thinking up as an excuse for their failings. DACA could have been ended and saying “Roberts would have just found something else” is sour grapes talk. Actually a better drafting of the XO might have worked and PROBABLY WOULD HAVE.
I want to be clear – you are actually argument that the nazi genocide was lawful ?
Atleast according to german law ?
I am guessing that you are then argument that the Nuremberg Tribunals are lawful – essentially because the allies won ?
Ultimately, your entire position devolves to “might makes right”.
In Kurtz world there is no actual morality – just power – correct ?
John you keep on bringing up “nazis” like that will troll me into a big retraction. It won’t. I could care less how many times you compare me to hitler or nazis or whatever. Im not the kind of guy who cares about your slanders.
I’ll raise you, too.
“sine legem sine poena” is the ancient Roman princple of law and it’s in the US constitution– “no ex post facto law.,”
German NS leadership was tried for various “crimes” like “genocide” that were not LAWS whatsoever. Where was “genocidee” in the US code circa 1945?
How was a head of state even subject to the US code? They were not. Sovereigns.
Now there were some laws they broke that were violative of Treaties like executing the escaped American POWs and some other things– but “crimes against humanity” was not in a single law-book anywhere at the time.
IMMORAL ? YES. ILLEGAL? NO.
I am not alone on this., Justice Jackson the prosecutor at the time, was troubled by the exc-post-facto legal theories that he himself was advancing as a prosecutor. Now, maybe this is above your head, go look it up. I dont like wasting all this time on arrogant fools like you.
Stalin just wanted to shoot them all. Drumhead court. Would have been more honest.
Instead the US cobbled up the Nuremberg trials which were window dressing for the “justice of the victor.”
If you understand this, then, the Nuremberg trials actually PROVE THE MAXIM MIGHT MAKES RIGHT — at least,
when it comes to law.
Because as YOU said, the nazis lost, and because they lost, they were not might, and they were executed.
Stop for a moment in your arrogance and answer me this little quizlet: which one of the men executed at Nurember was not even a member of the armed forces or government?
And quizlet 2– what man was given a LIFE SENTENCE for “crimes’ that had not been committed when he was already in Allied custody in 1939, and it was impossible, factually, that he had any part of them?
here was another one: the charge Germans “Waged aggressive war.”
SHOW ME THE LAW THAT SAYS THAT WAS ILLEGAL IN 1939
ACTUALLY IT WAS LEGAL AND HAD BEEN SINCE THE TREATY OF WESTPHALIA 3 CENTURIES BEFORE
“John you keep on bringing up “nazis” like that will troll me into a big retraction. ”
Nazi’s. Stalin, Mao, Pol Pot, it does nto matter.
It is just a simple reductio ad absurdem.
Those are trivial to overcome for legitimate arguments and usually impossible for bogus ones.
It is not “trolling”. The Nazi’s are most frequently used – because pretty much everyone is familiar with the fact that the Nazi’s did very evil things, and did so through the standard legal process. You are familiar with the Nuremberg laws.
Are you familar with the laws empowering Mao ? Stalin ? Pol Pot ? Chavez ? ….
I do not have to explain alot about Hitler’s Germany.
“It won’t. I could care less how many times you compare me to hitler or nazis or whatever.”
If you can not tell the difference between comparing you to Hitler and saying that your argument would legitimize Hitler’s genocide then your logical skills are crap.
” Im not the kind of guy who cares about your slanders.”
I have not slandered you. I have made a valid reductio ad absurdem argument against yours.
“I’ll raise you, too.
“sine legem sine poena” is the ancient Roman princple of law and it’s in the US constitution– “no ex post facto law.,””
So much for legal positivism.
So if Roberts allows an “ex post facto law” does that mean your ancient principle is no longer valid ?
Kurtz, I can do this all day. So long as you assert that the law is what 5:9 say it is, there are no legal principles at all.
For the entire concept of legal principle to mean anything, it must bind even SCOTUS.
Previously you have argued precedent – same flaw.
I can find many ways of invalidating the Nazi’s laws.
But your “legal positivism” recognises only a single one – that is that some later authority changed their mind.
Your legal positivism makes no room for other legal principles.
And the moment that you make room for “sine legem sine poena” or any other principle, you have opened the door to every argument I have made.
Ultimately the only meaning to your “legal positivism” is “the burden is on the party challenging the current state of the law”.
That is it. Most of us accept that. But it is no impendiment to saying “roberts is full of $h#t”
Which you repeatedly claim it is.
“Now, maybe this is above your head”
speaking of arrogance.
“I dont like wasting all this time on arrogant fools like you.”
Ad hominem is not argument.
“If you understand this, then, the Nuremberg trials actually PROVE THE MAXIM MIGHT MAKES RIGHT — at least,
when it comes to law.”
Or they prove that law has foundations beyond your arbitrary and caprecious “legal positivism”
“The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.”
“If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
“Our protection against all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others, lies not in their forbearance but in the limitations of our Constitution.”
“But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principles of racial discrimination in criminal procedure, and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking, and expands it to new purposes.”
Jackson is not very friendly to your legal positivism.
“Stop for a moment in your arrogance and answer me this little quizlet: which one of the men executed at Nurember was not even a member of the armed forces or government?”
Julius Streicher – several were not members of the armed services. Atleast one only served in local government.
“And quizlet 2– what man was given a LIFE SENTENCE for “crimes’ that had not been committed when he was already in Allied custody in 1939, and it was impossible, factually, that he had any part of them?”
Rudolf Hess.
Hess was not in custody until 1941 and had taken part in the invasion of Poland.
here was another one: the charge Germans “Waged aggressive war.”
“SHOW ME THE LAW THAT SAYS THAT WAS ILLEGAL IN 1939
ACTUALLY IT WAS LEGAL AND HAD BEEN SINCE THE TREATY OF WESTPHALIA 3 CENTURIES BEFORE”
You undermine your own points.
I would also note that I looked up “legal positivism” One of its early authors was Bentham.
It has several errors, but it is quite different from what you claim.
“a legal system is a closed, logical system in which correct decisions can be deduced from predetermined legal rules without reference to social considerations;”
legal positivism requires logic (all law requires logic) and Roberts decision fails logic.
But the fundimental flaw in legal positivism is that it divorces itself from moral considerations.
While Humans are prone to false moral pronouncements, that does not alter the fact that all law rests on moral foundations.
We did not decide that murder was illegal in a vaccuum. It is illegal because it is an unjustified violation of anothers rights by force.
It is illegal because it is immoral.
See John this is where over confidence in a poorly thought out position can lead you. To making my point for me
“In Kurtz world there is no actual morality – just power – correct?”
NO JOHN I WASNT TALKING ABOUT MORALITY AT ALL.
i was talking about WHAT IS THE LAW
these are two different propositions.
for example: abortion.
Immoral? Yes.
Illegal? No. Or, maybe sometimes– but we don’t consult the POPE for that answer, we ask a lawyer to interpret statutes and cases! For what the law IS not what it “SHOULD BE”
you have been failing to understand me or credit my argument fairly the entire time, because you are a blowhard, a blustering, arrogant fool who shows little self restraint on uttering moralistic opinions. Usually i get that from a Democrat cheerleader, but I am pleased i had the chance to hear it from a Republican ,so we could all learn to detect how it arises in a different place.
Now, before i forget, here’s another distinction you are not fit to discuss, but is raised at times in this sort of talk:
what is the difference between power and authority?
But we can’t even get to that stage of conversation because you are still stuck on the most basic proposition, what the law IS versus what YOU THINK IT SHOULD BE. these two things can be very, very different. maybe get these basics down before you start calling Justice Roberts names and telling us how much smarter you are than him.
“See John this is where over confidence in a poorly thought out position can lead you. To making my point for me”
“In Kurtz world there is no actual morality – just power – correct?”
“NO JOHN I WASNT TALKING ABOUT MORALITY AT ALL.
i was talking about WHAT IS THE LAW
these are two different propositions.”
False.
for example: abortion.
You seem under the delusion that the relationship between law and morality is binary.
either law and morality are exactly the same or they are totally different.
Postive morality is the domain of individuals. It is not the domain of govenrment or law.
You can choose to live the golden rule, you can not impose it by force on others.
Negative morality – you may not use force against others without justification – not even government – is the domain of the law.
As to abortion:
Lets say you are a brilliant doctor, on the verge of curing cancer, but you have a rare disease that requires regular blood transfusions, and there is only one person on the planet whose blood is a perfect match – me.
Can you force me to provide you blood to keep you alive ?
Permutations of this question were resolve centuries ago.
The proper legal answer to abortion is that no one can force a woman to carry a preganancy to term if she choses not to.
It is irrlevant whether the “fetus” is fully human or not.
HOWEVER, the woman has a right to “not be preganant”, to not provide her body to assist in the survival of another.
Governments can if they so choose step in an insist that any steps necescary to ensure the survival of the fetus that do not significantly increase the risk to the woman be taken.
Not only that but should the child live the state can demand child care from the woman – just as had she kept the child she could demand it from the father.
There is an absolute right to control of your own body, including to not be pregnant. There is no right to kill another.
But if the dependence of another rests solely on your right to your body, and without it that other dies – that is between you and your god.
BTW both Lawrence Tribe – fairly left constitutional scholar, and Walter Block – anarcho capitalist, independently came up with that.
The fact that SCOTUS did not, just demonstrates how poor the knowledge of rights and the constitution is on the courts and how stupidly cowed by science and medicine – which is NOT the domain of law, the Rowe court was.
A bad decision has us at war for a lifetime.
“you have been failing to understand me or credit my argument fairly the entire time”
You have not made much of an argument. You just repeat over and over – “it is as I say it is, and you are wrong” – that is not an argument.
“because you are a blowhard, a blustering, arrogant fool who shows little self restraint on uttering moralistic opinions. Usually i get that from a Democrat cheerleader, but I am pleased i had the chance to hear it from a Republican ,so we could all learn to detect how it arises in a different place.”
Who said I was republican ?
I would BTW note that your legal positivism has little to separate it from “living constitutionalism” and pretty much nothing to separate it from post modernism – you know that FAR LEFT ideology that is burning the country down.
They too beleive there is no foundation, that everything is an opinion and the only opinion that matters is that imposed with the most power. Now today they construct a framework of power based on victimhood points. But that is not fixed in the ideology.
And your logical positivism is far worse than that of Bentham. His atleast required conformance to logic. He required consistancy.
You have abandoned even that.
“Now, before i forget, here’s another distinction you are not fit to discuss, but is raised at times in this sort of talk:
what is the difference between power and authority?”
Why am I obligated to answer irrelevant questions from you –
Might that be “because you are a blowhard, a blustering, arrogant fool who shows little self restraint” ?
“But we can’t even get to that stage of conversation because you are still stuck on the most basic proposition, what the law IS versus what YOU THINK IT SHOULD BE. these two things can be very, very different. maybe get these basics down before you start calling Justice Roberts names and telling us how much smarter you are than him.”
Kurtz – your logical positivism has no “IS”. It is a guessing game trying to decipher what it will be based on what it probably was.
There is no “IS” in your legal positivism. Atleast Bentham did not make that error.
You can reject moral foundations – though your Judge Jackson did not, but you can not claim that the law is whatever 5:9 say it is, without any constraints – or you fail reductio ad absurdem and you legitimize every despot that ever was.
Even Bentham – and my quess is Holmes, though I do not hold him in much regard, did not go so far.
They required that law constrain itself to logic.
The common hoodlum has no idea what the law says – but he knows what is right and what is wrong.
We assert as a matter of legal principle that ignorance of the law is not an excuse – not because we are arbitrary and caprecious, but because we know that the hodlum may not know the law, but he knew right and wrong.
This is also why in the past – less so today, we did not subject those who did not know right and wrong to the law.
By your own argument – Trump’s legal advisors COULD NOT succeed.
YOU are saying roberts is right because he and 4 others says so. That the law is what it is BECAUSE he says so.
NOT that he reached that conclusion via facts, logic, reason that Trump’s lawyers could anticipate.
Your legal positivist position ultimately means one needs to do infinite work to comply with the law and when defending what we have done we need to fire a shotgun of arguments – because god only knows what Roberts and Company will rely on to make their decision – as they are free to act arbitrarily.
This is already the argument many have raised that Roberts decsion is highly flawed.
I would further note:
since you seem fixated on ideology that you legal positivism is about as anti-conservative as one can possibly get.
And it makes SCOTUS monarch’s they are not apealable, they are always right. They can obliterate congress with a stroke of a penn so they need not fear impeachment. They can rewrite the constitution as they please.
You have said there is no limit on this “the law is what the courts say the law is” principle.
Bull. It didn’t require infinite work. It required competent work at drafting XOs.
You are obscuring a lesson to be learned. Hire competent advisors or fail.
Republicans actually need to learn how badly they have been failing for decades and perhaps it is in no small part to hiring incompetent silk-stocking lawyers from crony big law firms instead of hiring the best lawyers in the areas on which they presume to have some meaningful effect.
Democrats have been crushed Republicans in their overall organizational competence. Many folks don’t realize there is such a thing. You want to see what a competent lawyer can do in tandem with other competent lawyers in government? Mostly if you can find great examples they will all be DEMOCRATS
Now, why do i waste my time with this?
because if Republicans got past some of the stuffy, archaic, flawed mental habits we see here, then, they might actually be in a position to WIN and do the most necessary things to have effect in government: GAIN POWER, USE IT, AND KEEP IT.
actually AG Barr is a good example of the kind of competent lawyer Republicans need to elevate to acting authority.
Compare him to Sessions and it should be clear.
“Bull. It didn’t require infinite work. It required competent work at drafting XOs.”
And when following you “legal positivism” Roberts rejects that ?
BTW I am pretty sure that Trump did NOT end DACA by executive order.
Sessions and DHS rescinded it. It was unconstitutional. It was already suspended by the 5th circuit,
Its last renewal had explired – and even Obama’s XO was limited in time.
No XO was needed.
“You are obscuring a lesson to be learned. Hire competent advisors or fail.”
You can not hire advisors who will come up with the bullet proof argument against someone who has already decided the ends they want and does not care about the means.
If the APA applied – DACA is unconstitutional and the 5th circuit can convert suspension to termination at the drop of a hat – the 5th circuits decsion that DACA was unconstitutional went to the supreme court years ago and was affirmed.
You claim falsely that Trump can not just end it – are you going to say that the 5th circuit can not ?
Are you saying that every prior finding of a court that a law or executive action was unconstitutional, does not end that law or action – that it still must be wound down following APA, and lying arround on life support for years ?
The more I learn the more I suspect that Roberts made his decision deliberately for political purposes.
Had he terminated DACA that would have been an election issue for democrats. It would have made both DACA and SCOTUS election issues.
Deciding as he has, he has made both DACA and SCOTUS an election issue for Republicans.
Republicans are far more motivated to vote over SCOTUS.
Democrats have been placated – they might be able to trust that Roberts will protect their sacred cows.
At the same time Roberts decision is meaningless. DACA is currently suspended.
Trump was unlikely to start deporting Dreamers had SCOTUS given him what he wanted.
Everyone knows the “real” reason for trying to kill DACA – the same reason that Obama did it in the first place – political leverage to negotiate a favorable immigration bill. That was not happening before 2020 no matter what.
Roberts, in classic roberts fashion constructed an opinion that has no precidential value, that he can disown trivially.
My speculation of course. But it does not change that Roberts decision was wrong and damages the court.
“Republicans actually need to learn how badly they have been failing for decades”
Not a republican.
“and perhaps it is in no small part to hiring incompetent silk-stocking lawyers from crony big law firms instead of hiring the best lawyers in the areas on which they presume to have some meaningful effect.”
I am not impressed by most lawyers regardless of politics.
“Democrats have been crushed Republicans in their overall organizational competence”
Absolutely.
“Many folks don’t realize there is such a thing.”
Do not disagree.
“You want to see what a competent lawyer can do in tandem with other competent lawyers in government? Mostly if you can find great examples they will all be DEMOCRATS”
There we part company. However bad GOP lawyers are – democrats are no better. Obama fared badly infront of favorable judges with democrat lawyers.
“if Republicans got past some of the stuffy, archaic, flawed mental habits we see here, then, they might actually be in a position to WIN and do the most necessary things to have effect in government: GAIN POWER, USE IT, AND KEEP IT.”
Trump won is 2016 against all odds for good reason. Because he did all these things you are talking about better than Hillary.
I do not know what 2020 will bring. I am really dubious that current polls are real or meaningful.
I would not be surprised if the election were actually held today – that Trump would win – handily. That is how suspicious I am of current polls. Though I would note that polling hase been incredibly self contradictory for atleast 6 months.
But all that is speculation.
What is not is that Trump starting in 2015 has used the tools and techniques of the left against them.
Trump is hated by the left for much the same reasons Clinton is hated by the right.
Because he is playing the game by their rules and winning.
Clinton said “its the economy stupid”. Trump took the insults of the left and threw them back at them.
“actually AG Barr is a good example of the kind of competent lawyer”
Something we agree on.
“Compare him to Sessions and it should be clear.”
Something else we agree on.
You say Trump’s lawyers failed. But by your own logic and Roberts – how are they supposed to succeed ?
Roberts has said that all Trump must do to comply with APA is provide a reason – almost any reason will do.
But Sessions and Neihlson provided a reason – the law is unconstitutional. Lower courts found that. Roberts did not reverse.
That reason meets the minimal requirements Roberts claims the APA imposes, Yet while openly noting that DOJ/DHS provided that reason, roberts later in his opinion pretends they did not.
Why is Roberts trustworthy ? Why should Trump beleive that if he provides an army of reasons that Roberts will accept them ?
You are arguing an infinite loop.
If there are no constraints besides your legal positivism. If it is impossible for SCOTUS to be wrong, no matter what they decide,
it is not possible for Trump’s lawyers to get it right without mind reading – as the is what SCOTUS WILL say it is.
“If there are no constraints besides your legal positivism. If it is impossible for SCOTUS to be wrong, no matter what they decide, it is not possible for Trump’s lawyers to get it right without mind reading – as the is what SCOTUS WILL say it is.”
ONLY FOR A SIMPLETON WHO WANTS TO DECLARE DEFEAT SO HE DOESN’T HAVE TO TRY
I can spot this mentality from a mile away., I used to be crippled by it myself. Grow up.
“If there are no constraints besides your legal positivism. If it is impossible for SCOTUS to be wrong, no matter what they decide, it is not possible for Trump’s lawyers to get it right without mind reading – as the is what SCOTUS WILL say it is.”
“ONLY FOR A SIMPLETON WHO WANTS TO DECLARE DEFEAT SO HE DOESN’T HAVE TO TRY”
You do that naked assertions are not arguments ?
“I can spot this mentality from a mile away., I used to be crippled by it myself. Grow up.”
You have made very few arguments – none of them any good,
You have mostly sprayed fallacies.
And you can not find your way out of a simple reductio ad absurdem.
Further you are not very disciplined. You behave like these snowflake lefties. Conflating arguments you do not like with personal insults.
I have on rare occasion insulted you – you spray out some many insults it is hard not to respond in kind.
But conflating a pretty standard reductio ad absurdem involving nazi’s with calling you a nazi is incredibly thin skinned and illogical.
The point of the reductio ad absurdem is that your position can and has lead to and legitimized nazi’s.
At worst I am calling you an extremely unwitting nazi appologist. But even that is only if you cling to an argument that can not survive a simple reductio ad absurdem.
There are other flaws in your argument, but RAA’s are only effective on notoriously bad arguments. Why dig deeper ?
Social securtiy was created by an act of congress.
If you want APA to apply to DACA – pass a dreamers act.
This is not about what the law should be.
The law is what is says it is – assuming that it may constitutionally say what is does.
I doubt that APA says it applies to the unilateral powers of the president. I doubt it says it applies to anything beyond the administrations implimentation of the laws that congress passes.
It is Roberts oppinion that is nonsense about what should be.
At the very least you owe a cite of a case where SCOTUS found the APA applies to something other that the administration of statutes.
Are you going to claim that the APA applies to the schedule of the first lady ?
To the Gardening of the whitehouse ?
The APA applies to the lease of the following:
What it explicitly says it applies to.
What congress has authority over.
That is an IS not a SHOULD.
Ni one here is arguing that Roberts opinion is not binding.
Only that it is bad in a long list of ways, that it is illogical in a long list of ways,
that it is a mistake in a long list of ways.
That is does not even fall within your IS/SHOULD scope.
It is neither the law as it is, nor as it should be.
This decision does not even comport with the idiotic living constitution nonsense.
This is manufactured jurisdiction.
blah blah blah. go read some cases in the hornbook and get back to me when you are able to grasp the basics. And I don’t OWE you one dime.
Nope you do not owe me anything.
But your arguments so far are crap. And your legal positivism argument is something that those selling should be ashamed of. It is morally bankrupt.
If you are offering a theory of law that would have no problem with Plessy or the nazi racial law – I am certainly not interested.
Plessy was the law until it wasnt. The Nuremberg laws were the law until they werent. Yes, that is how a working lawyer and not a theorist, thinks. The law is exactly what the current authority says it is. This is a tough pill to swallow, it took me a while to figure it out, immersed as I was in all the usual American liberty stuff.
Your notion is an old one which goes way back before the US however. In spite of it not being current legal thinking. It goes back to St Augustine: “Lex iniusta non est lex ”
BUT THAT IS NOT THE LAW IN AMERICA IN 2020. TRUST ME IT AINT THE LAW. IT IS JUST A SAYING.
John Say’s opinion about what the law “IS” — is NOT binding on one single court. . You can think whatever you like; but you are not an authority.
“Plessy was the law until it wasnt. The Nuremberg laws were the law until they werent.”
atleast you are consistant.
“Yes, that is how a working lawyer and not a theorist, thinks. ”
I think almost every lawyer on the planet left and right can confirm you are wrong on that.
Every single thing every lawyer has ever argued about the constitution, textualism, originalism, living constitutionalism all forms of statutory construction presume there is some means to know what the law is independent of the whim of 5:9.
The law is exactly what the current authority says it is. This is a tough pill to swallow, it took me a while to figure it out, immersed as I was in all the usual American liberty stuff.
Your notion is an old one which goes way back before the US however. In spite of it not being current legal thinking. It goes back to St Augustine: “Lex iniusta non est lex ”
BUT THAT IS NOT THE LAW IN AMERICA IN 2020. TRUST ME IT AINT THE LAW. IT IS JUST A SAYING.
“John Say’s opinion about what the law “IS” — is NOT binding on one single court. . You can think whatever you like; but you are not an authority.”
You “legal positivism” leaves nothing binding at all. Even the opinions of SCOTUS are not teally binding – because if a lower court rules otherwise that is the law until they are overturned.
Ni I am not an expert – no one is. You seem to think the law belongs to the judges and the courts. It does not.
“Plessy was the law until it wasnt. The Nuremberg laws were the law until they werent.”
I guess you are not able to understand that Plessy etc. were overturned by someone saying
Legal positivism is bulls shit, this is not what the law, morality. the constitution dictate
The entire purpose of “originalism” is to establish that what the law “is” is not – to quote Roberts – “arbitraryu and caprecious.
This oppinion violates the APA – except that the APA does not apply to SCOTUS decisions – as it does not apply to the non-legislative decisions of the executive – why ? Because congress can not constrain either the courts or the executive except within the scope of congresses powers in the constitution.
Regardless, what the law “IS” is not supposed to be “arbitrary and caprecious”
You can not run a society or govenrment that way.
The job that the supreme court does, could actually be done by a computer.
We keep saying that courts interpret the law, and issue opinions.
With very few exceptions the decisions made at an apelate level are very close to rote. What does the constitution say (where applicable) what does the law say, is the plain meaning as understood today different from when it was enacted ?
That is it. I will cede that there might be times when there is not perfect clarity on that. Though this is not even close to one of those.
Regardless it is clearly Roberts that has failed Hume’s guilotine and jumped the is/ought barrier.
I have made atleast half a dozen arguments, Almost all are rooted in logic – close to pure logic.
Roberts decision results in logical contradictions several ways.
Valid law does not result in contradictions.
NO!
The role of the courts is NEVER to decide what the law SHOULD be.
That is the role of congress and the president.
The role of the court is to decide based on what they have enacted what it IS int he case before them, And separately whether what it IS is in conflict with other law or the constitution.
That is it. Should is explictly the domain of the elected
Ha John more Mostesquieu.
Quit beating around the bush, you have a problem with https://en.wikipedia.org/wiki/Marbury_v._Madison
or maybe you just dont understand it?
You seem to think That I care ?
Regardless, I am not intimately familiar with the theory of legal positivism – and I might find it less repugnant if I bothered to look into it.
When I am attacking “legal positivism” I am attacking what you are describing as legal positivism – an argument you have already lost as it devolved to contradiction – otherwise Plessy would still be the low of the land.
Plessy did not magically become “not the law”.
I would note that Dred Scott was reversed by a bloody war and the reconstruction amendments.
So clearly the law is more than what the highest judicial authority says it is.
Even Marbury does not say that SCOTUS can ignore the 13th amendment.
The final authority on the law, is not the judges, it is not the constitution, it is human morality.
Every single place you think that law is somehow absolute – it is not. SCOTUS gets the constitution wrong frequently – their decsions are binding – they are not final. They are not apealable to a higher court, but they are obviously appealable. Either by someone bravely doing what you claim can not be done and relitigating the matter, or by changing the constitution.
Hamburger’s book: “Is Administrative Law Unlawful?”
Yes.
This is obscene.
Administrative procedures are a nightmare. But I still wonder who has what dirt on Roberts. My suggestion to Trump is, enact some overreaching executive orders, and then if he loses to Biden, try to saddle Biden with them.
Squeeky Fromm
Girl Reporter
Squeeky– I have wondered the same. What is in Robert’s dossier?
Courts can always find a way to get to whatever decision they want, if they are of a mind. See Sullivan and Gleeson for example. But thankfully this was just a procedural error and it can be corrected pretty easily.
As far as Roberts, I am not a 100% conservative on all things. And as Thomas Sowell points out in his book I am reading, Intellectuals and Society, conservatism isn’t really for anything – just against change. So I am not railing on Roberts for not being conservative enough. But, when the underlying issue is unlawful, as Thomas points out, then why wiggle and squirm trying to save it. I think the “Roberts want to please the Washington Cocktail Circuit” remark earlier is also a possibility.
Squeeky Fromm
Girl Reporter
Roberts adopted daughters from Ireland not done completely by the book
No surprise if true. Roberts doesn’t seem to fret about what we used to call ‘law’.
He has a daughter and a son, now about 18 and 20 years of age.
Well, that makes it kinda late for them to be sent back to their mother or whatever. I wonder if somebody has photos of Roberts in drag or something, or if he knocked up a law clerk. Probably, he just wants the cocktail circuit to approve of him. Who knows?
Squeeky Fromm
Girl Reporter
Irrelevant. I have adopted children from foreign countries.
Further I support broad immigration.
But we change these things through law not fiat.
And if something can be changed by fiat, it can be reversed by fiat.
The APA argument is a red herring – and everyone knows it.
Roberts is going to manufacture some means to preclude Trump enacting policies Roberts disfavors, or terminating policies Trump favors.
Say, you constantly make overbroad assertions.
“everybody” knows it’s a red herring
except 5 judges who count, I guess.
i hate to be the aguafiesta in this party, but, here we are whistling past the graveyard. the effort to terminate DACA is now dead until after the election.
“Say, you constantly make overbroad assertions.
“everybody” knows it’s a red herring”
Overbroad and red herring are not the same.
My remarks are hyperbolic – but only barely.
I am having a great deal of fun, because Roberts is opinion is such logical crap.
I beleive you have said you are a lawyer, that is supposed to mean you are skilled in logic. If that is so then you know that whenever you have an argument that contains a contradiction – you can prove ANYTHING. That is the problem with Roberts opinion.
It rests on multiple contradictions – it is therefore trivial to tear apart.
“except 5 judges who count, I guess.”
You mean like Brown, joined by Fuller, Field, Gray, Shiras, White, Peckham in Plessy ?
Grow up. There is still NO ONE arguing that this decision is not binding.
It is self evidently BAD LAW.
“I hate to be the aguafiesta in this party, but, here we are whistling past the graveyard. the effort to terminate DACA is now dead until after the election.”
Actually that is false. DHS provided the ingredient that Roberts claimed they were missing – a rationale. But they did so a few months after rescinding DACA. and Roberts claims he can not consider that rationale because it is not before the court.
That too was ludicdously stupid. Regardless Roberts also noted that SCOTUS only has very narrow scope to inquire into the rationale – so presumptively the rationale offered by DHS is valid.
DHS can just say tomorow – we rescind DACA again incorportating the rationale we offered long ago that SCOTUS did not look at.
And we start the entire nonsense over.
If DHS was challenged – it is possible that Trump could move straight to SCOTUS saying – we provided exactly what you claimed we needed, now you are obligated based on your own ruling to find in our favor.
It is this kind of mess you get into when you fail to follow logic when making decisions on law.
“Roberts is opinion is such logical crap” … ” it is therefore trivial to tear apart” LOL the most grandiose remark in the conversation so far.
You want to honestly argue that the opinion is logically sound ?
“the most grandiose remark in the conversation so far.”
Ad Hominem is not argument.
“he’s done arguing with me about “legal positivism” and grown tired of comparing me to nazis which elicited a big yawn,”
I am ? Mind reading ?
I did not compare you to Nazi’s. I noted that your “legal positivism” fails a nazi reduction ad absurdum. Will it make you feel better if I use Pol Pot ?
The point is that there is no limit to legal positivism as you have expressed it, and therefore it allows anything no matter how heinous. And it legitimizes the most heinoud things that have ever been done.
“so, now he’s on to fencing with you about “free will” which is because John Say believes you are guilty of the moral error of “determinism””
Again more mind reading. Determinism is amoral. If you or anyone else wishes to argue it – you are free to.
I have not heard anyone argue determinism yet. Most people find it thoroughly unappealing.
What I am pointing out is that most people actually accept free will. Pretty much the entire west, I am hard pressed to think of any significant group of determinists.
“Let’s turn to the Ayn Rand playbook and see if we can guess.”
More mind reading – not an objectivist.
Also a bizarre form of ad hominem.
“let’s ask, is “free will” verifiable, or even subject to formation into a testable hypothesis?”
Does not matter. It is either axiomatic or true, take your choice.
The alternative as you pointed our is determinism – are you offering that ?
“it’s painful when we find out that some of our deeply held cultural and religious norms– such as free will– are not easily reducible into testable hypthesis fit for scientific conformation.”
Is the existance of infinity “a testable hypothesis fit for scientific confirmation” ?
I do not know whether free will is axiomatic, or provably true. Nor do I need to. It is almost universally accepted.
But if you wish to sell determinism – be my guest.
Migrant Lives Matter.