Ignorance of the law is no excuse. But this is what it looks like.
- Thread starter Colonel Hogan
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And this sir, is why I said you have NOT ONE FUCKING CLUE what you were talking about when you jumped all over me in the other thread. The revocation of visas for non-citizen immigrants (or visitors) is a defacto order to appear for a deportation hearing - but we chose not to press the Iranian issue (or most for that matter) for many reasons - not because your FUCKING SACRED LAW prevented us from doing so.
The Government could have rounded up every single Iranian non-citizen immigrant and used the "Serious Risk to National Security" clause to hasten them through a deportation hearing and sent them on their way.
They didn't - partly because many of those affected were students, doctors, lawyers, and scientists who posed little risk to our nation and whose deportation back to Iran would have been a nice brain bonus for them.
That is what "realpolitik" means; it was not in the interest of our nation to take the visa revocation beyond the level of public statement, for both security reasons and for public relations reasons, and to save the cost of a round-up and thousands of deportation hearings.
What a revocation does, is prevent NEW entries without adequate review and it gives the government the ability to grab, try and deport without need to wait for one of the other 24 or so major reasons a non-immigrant Alien may be ordered out of the nation.
I never said we deported anyone, only that we had the authority. Nor did I ever say we could by-pass due-process although we could if the President and Attorney General truly desired to deport a group (not as easily today as it would have been in 1979/1980).
VaticanAssassin
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And I will say the same thing I have been saying. In regards to immigration they are not given constitution protections. It is that simple. Many would argue they should be but the fact is they are not.
"Scholars and courts generally understand the plenary power doctrine in immigration law to sharply limit judicial scrutiny of the immigration rules adopted by Congress and the President. Since the doctrine was first formulated in the late nineteenth century, the Supreme Court has emphasized that immigration represents an issue best left to the political branches."
VaticanAssassin
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Colonel Hogan
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And my only point, and I will apologize here for whatever lack of clarity with which I did not previously make it, is the one which I believe you just (perhaps inadvertently) implied -- that the FUCKING SACRED LAW offers some meaningful measure of relief and protection to the literally thousands of immigrants potentially subjected to a deportation hearing on grounds of "Serious Risk of National Security" if the demonstrable FACTS at that hearing showed that the alien "posed little risk to our nation." Otherwise, why hold the hearing?
My position on the substance of immigration and naturalization law, as I have to the best of my ability studied it, can be summed up in the three following statements.
1. American law treats alien applicants for entrance into the United States significantly differently with respect to legal rights than those who have been granted entry and are already here. I would not think that would be surprising to most people.
2. The rights of alien residents -- both immigrants and non-immigrants -- within this country, while far less expansive than those of American citizens, are not so restricted that they can realistically be deported from this country without "cause" established at a due process hearing, with the notable exception of the Expedited Removal process, which itself treats subjects under law as "arriving aliens" regardless of how long they have "resided" here. This distinction is itself notable by simple virtue that the law bothers to make it.
3. The very fact that the revocation and deportation process is one which addresses the circumstances, behaviors and legal status of aliens individually impeaches the idea that the process may be applied to large groups or classes of people indiscriminately. That, and the glaring fact that nothing under federal immigration law makes specific allowance for just such mass application, leads me to believe it was never thusly intended.
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Colonel Hogan
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I have never suggested otherwise. And this, among many other things, is what you do not understand.
OF COURSE, constitutional protections are NOT given by immigration law. Constitutional protections are ONLY given BY the Constitution. But whatever Constitutional protections are NOT EXPRESSLY DENIED BY the plenary power expressed through the enactment by Congress of various immigration related statutes NECESSARILY REMAIN INTACT under the Supremacy Clause of the Constitution which declare it to be the SUPREME law of the land.
THOSE are the Constitutional protections which ALL "non-citizens on American soil" enjoy, if by virtue of no other reason than the fact that immigration and naturalization law has NEVER made any attempt to deprive them in their TOTALITY!!!
Furthermore, that doctrine of Constitutional supremacy and the settled law of judicial review stands as a constant check on the just and proper exercise of the plenary power itself. No better evidence of THAT reality exists than YOUR reference to the Supreme Court's frequent endorsement of its various implementations. The Court's view on the scope of the doctrine or the details of those implementation is ALWAYS subject to change, but there is little indication to expect future rulings to depart drastically from the past.
My ongoing argument with you is NOT -- i repeat NOT -- about the scope of plenary power, conflicts between administrative or criminal law, or Constitutional conflicts WITHIN immigration law which have yet to be "corrected" by the Supreme Court.
My ongoing argument with you is with regard to what current law ACTUALLY SAYS and WHAT IT MEANS given all the various cross references.
Go back and look at my immediate past exchange with Kbate in this thread. It cuts to the very heart of the matter. She believes the law, as written, allows the President and Attorney General to deport an entire class of immigrant and non-immigrant aliens. I don't think so, but we'll never know unless Donald Trump, you or BusyBody is elected President and makes the attempt.
But the point is, this is a specific statutory argument, not a Constitutional or philosophical one. And it is why I keep demanding that people who engage in STATUTORY ARGUMENTS ACTUALLY CITE the goddamned statutes they seem to believe support the very arguments they keep making.
And when they don't do that, it is reasonable to suspect they don't know what the fuck they are talking about.
I provide those citations FOR MY assertions FOR THE VERY PURPOSE of analysis and criticism by others. That's what reasonable people do in their search for accurate information. And one of my many character flaws is my ever-present, volcanic OUTRAGE at having to drag people kicking and screaming to such a fundamentally benign, and, indeed, mutually beneficial exchange of information.
VaticanAssassin
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Assigning my position yet a fucking again. " trump, you, or busybody"
Despot the fact that I have said several times this shouldn't be done, only that it could be done. It could be done in several different ways. Even
You have come to see that. You keep looking to the law, and I submit the law matters very little as immigration policies are outside the law.
Read this:
http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4913&context=fss_papers
Give me your synopsis on it:
4est_4est_Gump
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*chuckle*
Ishmael
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Good paper.
The Abstract goes to the heart of it, Delegated Legislation. More on that later.
The Col. continually drags the Constitution into the conversation. With few exceptions most every legal mind DOES NOT argue that the congress can't regulate immigration as it sees fit. Nor does most legal experts argue that the president is responsible to act within the framework of the law as passed by congress. Further, immigrants, legal and illegal, fall outside the protections of the Constitution with regard to immigration status. The courts are only involved to the extent that congress and/or the administration have explicitly chosen to involve them. So unless the individual wants to argue the wording of the naturalization clause of Article 1, Section 8, the constitutional arguments are off the table.
Re. Delegated Legislation. This is a problematical trend that originated in the UK over a century ago that the US congress has taken to. In a nutshell, congress passes a framework law then the administrative branch fleshes out that framework with regulations that have the force of law. These regulations can only be changed by act of congress that usually restricts said regulations where the administration has gone 'too far.' Meaning that any president can re-write any delegated legislation as long as he/she remains within the framework of the law.
The president can, at anytime, declare any person, or classes of persons, a security risk to the nation and kick their asses out. Eisenhower actually did that, although 'security' was not the excuse he used. He did that using the same law that Carter did. Arguing that Carter didn't follow through is a pointless case of mental masturbation. No one has argued that he couldn't have followed through had he so directed. Further, it is within the power of the administration to make exceptions to any directive based on any metric, including religion. And I reiterate, Carter's action was challenged in the courts and the administration prevailed. That horse has already left the barn.
So arguing that it can't be done is a waste of time. Arguing that it may be impractical, financially crippling, or politically imprudent is obviously always an option.
Ishmael
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John Marshall has made his decision; now let him enforce it!
4est_4est_Gump
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"So arguing that it can't be done is a waste of time. Arguing that it may be impractical, financially crippling, or politically imprudent is obviously always an option."
I tried pointing that out and you saw the venom that I received from the Colonel...
I tried pointing that out and you saw the venom that I received from the Colonel...
VaticanAssassin
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The paper raises several points counter to its end conclusion.... I am sure these will be cherry picked as some sort of proof.
JohnnySavage
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The distinction that's getting lost in the weeds is between a would-be immigrant on foreign soil, and one that's already here. All PEOPLE within the jurisdiction of the United States are afforded the full range of Constitutional protections.
I understand that the 14th Amendment is a new one, but there are copies available on the internets for review.
I understand that the 14th Amendment is a new one, but there are copies available on the internets for review.
4est_4est_Gump
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Cite?
JohnnySavage
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Whenever a nation of men supersedes a nation of law, right and wrong looses all meaning to whatever majority rules.
You bozos need to commission Ryan Scabcrest to wage one of his typical GB Idol polls to determine the winner of your continuing ragtime rant.
You bozos need to commission Ryan Scabcrest to wage one of his typical GB Idol polls to determine the winner of your continuing ragtime rant.
snugglestruggle
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We should throw all the Muslims out anyway, just to keep the lawyers busy and out of the next Election.
VaticanAssassin
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4est_4est_Gump
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You just made my point.
Every armchair lawyer can find grounds for his/her personal purview.
However, using your cite, you have yet to win a case in an actual legal proceeding.
ALL PEOPLE would include the Cherokee, who were certainly, like all the other tribes, not afforded legal protection.
Colonel Hogan
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First and foremost, thank you for providing this link. I am just now getting back to the keyboard from dinner and have just begun reading it. I expect it will be awhile before that process is concluded and a suitable response posted.
But, again, thanks for the cite.
SgtSpiderMan
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Thanks. This is awesome.
Colonel Hogan
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Okay. Here's my take.
First things first. Let’s take two steps back to reassess why this discussion is taking place.
It revolves around the whole premise of how to best and properly utilize immigration law to protect national security interests in the face of global terrorism and the undisputed intent of Islamic jihadists to inflict acts of terror on American soil.
As best I can see, immigration law and policies have primarily two, and only two, roles in affecting that protection: keeping alien bad guys from getting IN, and finding and identifying alien bad guys and kicking them OUT. The traditional law enforcement/criminal-prosecutorial application in regards to the latter is irrelevant to this discussion. We're sticking with immigration law and policy.
With regards to keeping alien bad guys from getting IN, let the record show that when you previously declared the LEGALITY of a complete barrier of entry based on selected countries of origin (which you did NOT advocate and, in fact, repudiated), I registered no objection. There simply is none. The legality of the Trump Model has never been in question. Only the advisability. It is essentially the same vehicle President Carter used in canceling entry visas during the Iranian hostage crisis. I trust, therefore, we have that issue off the table.
That leaves us with the sole issue of deportability and the legal authority for it.
With respect to the Yale Law Journal article, I again cannot thank you enough for posting the link to it and can only re-emphasize how preferable it would have been to be able to review it far earlier in this discussion seeing as how it apparently has had a significant impact on your views.
With respect to its general contentions regarding the President’s major channels of influence over immigration policy, the authors identified three such channels:
• Inherent Executive authority
• Authority delegated to the President by Congress
• De Facto Delegation
While the authors examined all three of these as factors surrounding the President’s influence over screening policy with respect to admitting aliens into the United States, inherent Executive authority appeared to be the weakest authoritative argument even in the eyes of the authors and particularly in light of Congressional activism throughout the 20th century.
I found no evidence that the authors seriously advanced the idea that the President has substantial inherent authority in the area of deportation. If you feel I have misread their statements in that regard, please cite the passages that would indicate otherwise.
Similarly, the authors did not spend much time examining any deportation authority which Congress might have delegated to the President. Not that they would necessarily deny it exists or could exist at the pleasure of Congress; they just didn’t give it much of a look, with the lone exception of deportation of legal aliens based on post-entry misconduct which is examined near the end of this post. Incidentally, while the authors did not use the term de jure to describe Congressional delegation, I believe it is an appropriate label since the juxtaposition of de jure and de facto is a common comparative construction and similarly fits the narrative here quite nicely.
This leaves de facto delegation as the dominant methodology by which the authors believe the President exercises his authority within the realm of alien deportation. As the authors stated:
But it must be said at the outset that the context of this assertion derives primarily from the exercise of the President’s “prosecutorial discretion” of deporting or not deporting aliens who are in this country ILLEGALLY. This is the makeup of the overwhelming majority of the population described as “deportable at the option of the Executive.” We see this by referring back to the introduction where the authors first used the “deportable at the option” phrase.
And even in the context of deporting LEGAL resident aliens as the result of their post-entry illegal conduct, the authors view the President’s discretionary option solely through his option NOT to prosecute.
Nowhere in this article do I find ANY SUGGESTION that the President has an option to proactively select aliens for deportation based on national security considerations. Now what is TRULY AMAZING about that is that you and I both know such considerations are directly addressed under current federal immigration law, namely 8 USC 1182 and 8 USC 1225 thru 1229. But in an article published in 2009 examining Presidential deportation authority, I find no mention of terrorism whatsoever!!! Did YOU???
So what is there in THIS ARTICLE that convinces you he has an authority which THE ARTICLE DOESN’T EVEN ADDRESS, MUCH LESS ASSERT???
I mean, I understand that you hold that view, but how, in God's name did you get it from THIS article?
I am at a loss.
Last edited:
VaticanAssassin
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I should have clarified. This document is not the supporting document for my, "I don't think they should, but if they did it would be legal" position; A position that I believe has been proven correct and is now settled. In looking for those articles that led me to this position, that I did not bookmark, I came across this. I simply thought it a good article on Immigration as a whole that addressed most aspects. Additionally, it does address, what I read, as the courts limited ability/hesitation to manage immigration issues.
"The plenary power doctrine sharply limits the judiciary’s power to police
immigration regulation"
"Scholars and courts generally understand the plenary power doctrine in
immigration law to sharply limit judicial scrutiny of the immigration rules
adopted by Congress and the President. Since the doctrine was first formulated
in the late nineteenth century, the Supreme Court has emphasized that
immigration represents an issue best left to the political branches"
"We show, by contrast, that this detailed code has had the
counterintuitive consequence of delegating tremendous authority to the
President to set immigration screening policy by making a huge fraction of
noncitizens deportable at the option of the Executive. Congress, de facto, has
delegated screening authority to the Executive in two ways. First, Congress’s
radical expansion of the grounds of deportation has rendered a large fraction of
legal immigrants deportable. Second, the combination of stringent admissions
restrictions established by Congress and lax border enforcement policy by the
Executive effectively has given the Executive primary control over a large
unauthorized population within the United States"
" Court’s limited and inconclusive jurisprudence on the separation of powers in
immigration"
The more interesting parts of the paper, to me, are the complete disorder of congressional and executive authority. Who has what? I think down the road the courts are going to have to define this as it becomes more likely that they will continue to run counter of each other. But in doing so will they take on more responsibility? Historical, again and again they have stayed out of the immigration questions....
Another document, largely separate from the original, settled, argument, that I found interesting is this:
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub
This does speak to why the statement "All PEOPLE within the jurisdiction of the United States are afforded the full range of Constitutional protections" is so fucking ridiculous wrong.
The simply fact that The Constitution does distinguish in some respects between the rights of citizens and noncitizens: the right not to be discriminatorily denied the vote and the right to run for federal elective office are expressly restricted to citizens should be known to all and makes the statement "full range of protections" wrong.
While I will concede, and have never said otherwise, the constitution does mostly protect foreign nationals in cases of criminal law. But even that it limited:
"Foreign nationals alone are subject to trial by military tribunal if accused of terrorist crimes. Thousands of foreign nationals have been detained under terrorist-related initiatives, most conducted under the rubric of the immigration
law. Foreign nationals have been subjected to
selective interrogation, registration, detention, and deportation
on the basis of their national identity. Foreign nationals were the
targets of the most extreme provisions in the USA PATRIOT
Act"
These are all measures completely against the constitution and show that foreign nationals are indeed not giving the full protection (even when referring to criminal law)
But for the 5th time I will point out I am referring to administrative, not criminal law.
"because the federal immigration power by definition treats foreign nationals differently from citizens,federal discrimination on the basis of alienage in regulating immigration is generally permissible"
This has been my argument in regards to the constitution and non citizens all along.
"The plenary power doctrine sharply limits the judiciary’s power to police
immigration regulation"
"Scholars and courts generally understand the plenary power doctrine in
immigration law to sharply limit judicial scrutiny of the immigration rules
adopted by Congress and the President. Since the doctrine was first formulated
in the late nineteenth century, the Supreme Court has emphasized that
immigration represents an issue best left to the political branches"
"We show, by contrast, that this detailed code has had the
counterintuitive consequence of delegating tremendous authority to the
President to set immigration screening policy by making a huge fraction of
noncitizens deportable at the option of the Executive. Congress, de facto, has
delegated screening authority to the Executive in two ways. First, Congress’s
radical expansion of the grounds of deportation has rendered a large fraction of
legal immigrants deportable. Second, the combination of stringent admissions
restrictions established by Congress and lax border enforcement policy by the
Executive effectively has given the Executive primary control over a large
unauthorized population within the United States"
" Court’s limited and inconclusive jurisprudence on the separation of powers in
immigration"
The more interesting parts of the paper, to me, are the complete disorder of congressional and executive authority. Who has what? I think down the road the courts are going to have to define this as it becomes more likely that they will continue to run counter of each other. But in doing so will they take on more responsibility? Historical, again and again they have stayed out of the immigration questions....
Another document, largely separate from the original, settled, argument, that I found interesting is this:
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub
This does speak to why the statement "All PEOPLE within the jurisdiction of the United States are afforded the full range of Constitutional protections" is so fucking ridiculous wrong.
The simply fact that The Constitution does distinguish in some respects between the rights of citizens and noncitizens: the right not to be discriminatorily denied the vote and the right to run for federal elective office are expressly restricted to citizens should be known to all and makes the statement "full range of protections" wrong.
While I will concede, and have never said otherwise, the constitution does mostly protect foreign nationals in cases of criminal law. But even that it limited:
"Foreign nationals alone are subject to trial by military tribunal if accused of terrorist crimes. Thousands of foreign nationals have been detained under terrorist-related initiatives, most conducted under the rubric of the immigration
law. Foreign nationals have been subjected to
selective interrogation, registration, detention, and deportation
on the basis of their national identity. Foreign nationals were the
targets of the most extreme provisions in the USA PATRIOT
Act"
These are all measures completely against the constitution and show that foreign nationals are indeed not giving the full protection (even when referring to criminal law)
But for the 5th time I will point out I am referring to administrative, not criminal law.
"because the federal immigration power by definition treats foreign nationals differently from citizens,federal discrimination on the basis of alienage in regulating immigration is generally permissible"
This has been my argument in regards to the constitution and non citizens all along.
