The progressive left is outraged at the Supreme Court based on two recent rulings:
- In 2019, President Trump put in place his "Remain in Mexico" policy, which required migrants seeking asylum to stay in Mexico while their cases were being adjudicated. On his first day in office, Joe Biden rescinded the policy. On Tuesday the Supreme Court ordered the policy to be reinstated pending a full hearing.
- Last month Biden was set to allow the CDC's eviction moratorium to lapse, but under pressure from progressives he ordered it to be continued. On Thursday the Supreme Court ruled that the moratorium had to end.
Strictly as a matter of law, are these two rulings really so outrageous? Regarding the first one, the Supreme Court has frequently said that a policy, once put in place according to the rules, can't be "arbitrarily and capriciously" ended. Since Biden killed the "Remain in Mexico" policy on his first day, it seems like you can make a pretty good case that it was arbitrary, can't you?
On the second one, the Court had clearly signaled months ago that it wouldn't approve an extension beyond July 30. Biden himself didn't expect to win a SCOTUS battle, and sure enough he didn't.
IANAL and I'm more than willing to hear from lawyers who know the law and have opinions about this. But tentatively, at least, it's not clear to me that there's anything to be all that outraged about.
POSTSCRIPT: Both of these rulings were per curiam, which means they weren't signed by individual justices. They were just released as opinions of the court. This has also generated some heat, but I have no special opinion on this aspect of the whole thing.
Stay in Mexico is irrelevant anyways. It actually caused a larger burst of illegal immigration. Which rich capitalists love. Stephen "the jew" Miller loves his illegals and wants them to flood the country.
As an actual rich capitalist.... no, actually rather indifferent one way or another. Not-very-rich small and medium sized business owners as operators in certain niche industries like Lawn Care, construction contractating, farming which benefit from lower skilled labour and can generally get away with off-the-books workers, now they love undocumented immigrants as they depend on exploitable-low-skilll labour for bargain cost. Oddly this is usually the same demographic that is virulently populist right-wing (and across countries, French Poujadisme, etc).
But they're not Rich Capitalists. They aspire in that direction but they're not the Bezos nor the Gates of the world.
The bizarre Miller anti-semitic remark dressed up in 'sarcasm' is bizarre....
Most of us try to ignore him/her/it.
And you're right about the "capitalist" breakdown: corporate America can't be bothered with the risks (fines, bad PR) of relying on unauthorized workers, and so generally refrain from this labor source. Plus, it's easy enough for them to offshore production in many cases. The main consumers of unauthorized labor from what I understand are indeed small(ish) businesses and households.
Not can't be bothered, undocumented workers are really irrelevant or even an active negative to higher value activities which pure hands-on-deck count is not one's key cost.
It's really a populist right-wing small/mediumsized-business owner (or small-medium sized farms). Which is ironic in the end (how much is conscious hypocrisy versus how much is the all-too-human denial of active contradiction between one's views...)
I suppose the undocumented worker as household help is much more the upper-class professionals thing and such profiles are more typically pro-immigration (on average of their probable baseline views) so the contradiction is probably less (again on average).
Excepting perhaps things like meat packing factories.
ZOE BAIRD DID NOTHING WRONG.
undocumented workers are really irrelevant or even an active negative to higher value activities which pure hands-on-deck count is not one's key cost.
Sure, but plenty of large firms — even quite profitable ones that add significant value — nonetheless much engage in at least some activities that are labor-intensive. Construction, lodging/hospitality, retail, food processing and so forth. Not everybody is Google or Moderna. I think there are employers in these sectors who might at least be tempted to be less scrupulous about workforce legality if the costs of non-compliance were lighter.
>> I suppose the undocumented worker as household help is much more the upper-class professionals thing<<
A lot of middle class people use undocumented workers for elder care. A lot more of this is happening than you might be aware of.
Larger businesses often use labor contractors to separate themselves from the process, knowing full well what is actually happening but giving themselves the ability to feign ignorance.
Lolz, your so wrong. Illegal help is used all over the American economy. Period. Accept it fool.
Miller is a con man. Anti-Semitic remarks are good cover.
That misrepresents what happened. The original moratorium did indeed lapse. Days later, Biden issued a new, more limited moratorium in the hope the DoJ could persuade Kavanaugh it overcame his objections to the original one. Apparently it didn't.
The real problem, which nobody in the media or the administration seems inclined to investigate and address, is that 90% of the money appropriated for rent relief by Congress has yet to find its way into the hands of renters so they can pay their arrears.
Insofar as your madly complex system with such funds passing through State bureaucracies presents perhaps 50 different stories - possibly simplifiable regionally but really at minimum dozens of different underlying stories depending on State level systems and politics.
This is a bit of your problem in the USA - your media and your discourse has become heavily national and heavily centralised but the reality of your political system and apparatus is not and is resisting mightily any change.
And both your political discourse AND your journalists seem to be intellectually unable to grapple with the contradictions.
Journos general innumeracy and English studies backgrounds doubtless contributes. Pllus the laziness of the narrative seeking as it is far easier to write to a fictional centralised mechanism narrative than to grapple with the real operational complexity of your system.
"Laziness of narrative seeking" without question, but I'd bet the more prevalent background is either Communications (partly training in trade technology and partly story construction, cf "lazy narrative seeking") or political science (enough said).
You do realize, I hope, that a big part of the issue with journalism is that it is now strongly funded by clicks, rather than by subscriptions and classified ads like it used to be.
So a lot of the news stories are framed to be clickbait.
I think the golden age of Yellow Journalism, which depended on selling copies on the street had something similar going.
Journos general innumeracy and English studies backgrounds ...
Hey, take it easy on English studies backgrounds. You would have most journalists be what, exactly? Accountants? Politicians? It's dirty work and somebody's got to do it.
I’ve been told one reason for the poor disbursement record is that often when Congress authorizes funds they do not include funding to add people to disburse the funds. And unfounded funding mandate if you will.
Actually, there has been quite a good amount of reporting on this issue. The problem is that state and local agencies tasked with dispersing the money are woefully understaffed and the application requirements are complicated and burdensome for the people most in need of relief -- detailed documentation of income, assets, rental payment records, etc. Lots of poor people don't have regular bank accounts and conduct almost all their business under the table in cash, so they don't have a paper trail to use in situations like this.
The remain in Mexico ruling was based on the same thing that was used to stop trump rescinded daca and many other things - the administrative procedures act.
The eviction ruling was after all predicted basically by biden himself as he said it will buy time before the court can overturn it.
Nobody knowledgeable is really surprised by either ruling.
You mean, you made shit up and no one signed it, so you're not surprised the court contradicted its earlier rulings, because you didn't bother to do anything but make excuses.
The remain-in-Mexico deal violates our treaty obligations and it requires Mexico's support, which had ended. So no, it wasn't capricious or arbitrary to rescind it.
The new eviction moratorium was written to the court's suggestion - limited in scope and had a termination date and health spread benchmarks. Rescinding it is capricious on the part of the court, and is contrary to their prior ruling.
So yeah, you lied.
The court’s suggestion was for Congress to pass legislation fir the moratorium, no?
Some on the court might have an inkling that legislation is increasingly hard to put through, since they hang out with some of the people responsible for that trend. It wouldn't be a surprise to see more rulings specifying that there oughta be a law. Then when Dems manage to pass some, the grounds will shift.
That could very well be, but did Congress even try to pass legislation or did they simply prod at and draft behind the Executive branch while posing for the cameras on the steps of the Capitol?
The Remain in Mexico rule blatantly violated federal law. Biden performed a mercy killing of an unlawful atrocity.
The essence of the SCOTUS Remain in Mexico ruling is that if someone steals your car car and you steal it back, you’re at fault because your proper remedy was to report the original theft to the police.
Biden ran on ending Trump’s border policies, so I don’t see that it’s arbitrary or capricious. It was clearly thought out and intended and he was voted into office having made the promise to do so.
With regard to the eviction moratorium I believe Biden basically thought this is what would happen.
Exactly, what seems arbitrary and capricious is this ruling.
Motivated reasoning.
By the same reasoning the actions of Trump in ending Dreamers etc. were not capricious....
Trump ran on X and voila any action taken thereafter ipso facto not capricious. Except of course you lot were howling on about it and quite happy when courts blocked.
Drum in fact is spot on - the reason it is "capricious" to Lefties is very simply motivated partisan reasoning, nothing more nothing less.
Proper rule of law however does not cater to partisan reasoning.
The Congress can properly pass a law on this, and solve your problem.
Motivated reasoning is your raison-d'etra.
Amusing coming from such an ideological partisan. Inaccurate but amusing for the complete non-self-awareness.
Of course in these instances I have no ideological motivation in reasoning at all - indeed in the abstract I would be generally sympathetic to Biden's actions (so by "motivation' in reasoning I should rather come to opposite conclusions, in the proper meaning of the phrase).
However, the facts are what they are regardless of motivated ideological reasoning.
Maaaaybe, but Lounsbury is actually right about this. Agencies have authority, but the authority to issue rules (such as the stupid "remain in mexico," or a rescinding of same) is pursuant to statute. The statute in question, the APA, requires that certain procedures be followed before an agency take an action--generally, the agency has to propose something, take public comment, and then respond to those comments and finalize its action; that action then must be within the statutory grant of authority to the agency (i.e., EPA cannot revise the income tax code; DHS cannot set rules for highway funds, etc.) and supportable by the evidence in the record.
A new president cannot simply nullify rules issued by agencies under his or her predecessor--a valid rule can only be undone by a new rule (or congressional enactment). This is a good thing--it's part of the reason why Trump and his band of incompetents generally failed at undoing so much of the good work done by Obama--they didn't understand this, and so much of what they tried got smacked down by the courts.
That's true about some people, but too easy as a sweeping generalization. Maybe there are some who would support both Biden's and Trump's power to rescind a previous president's policy in these cases. If one doesn't think these actions were arbitrary and capricious, that doesn't make one a partisan. There's room to argue that particular court decisions don't properly apply the law.
That was arbitrary and capricious because the entire Republican point of view on this topic is arbitrary and capricious, it speaks to nothing but their foundational interest in injuring helpless victims.
Trump’s actions regarding Dreamers were not capricious. They were racist and bigoted. The same applies to the Muslim ban.
Pray tell, how does Biden restart a program that requires Mexico's agreement? For SCOTUS to reaffirm a judge's power to force the US to negotiate a treaty when the Constitution explicitly assigns that power to POTUS is, well, unconstitutional. Additionally, how does SCOTUS force Mexico to abide by an agreement made under Trump -- is an American judge going to hold the Mexican government in contempt?
Do tell!
Moreover, SCOTUS openly gave Trump the benefit of the doubt on arbitrary and capricious actions, handing him a do-over on the Muslim ban. But, Sec. Mayorka wrote a lengthy memo -- https://bityl.co/8PvC -- justifying the action and explaining why it was necessary. As such, it was neither capricious nor arbitrary.
Did I mention that SCOTUS is full of shit?
The Supremes ate too much Taco Bell?
Def Kavanaugh. Beer and Taco Bell midnight runs. Literally runs.
That is a good point re Mexico. Of course if Mexico wanted the policy that would not be an issue. But, to the extent that Mexico was talked into it with carrots and sticks, it depends I guess on whether the court order also requires those positive or negative incentives to Mexico to continue.
But I would guess one big part of why Mexico agreed was an incentive to maintain good relations with the current US president. If biden hints behind the scenes for Mexico to object because " sorry agreement expired when the us cancelled it" , hard to see how a court ruling could enforce that.
The comments I have seem appear to assume that this ruling will restore the old rule but have not heard anything addressing this issue you raise. And I do not know enough of the details of the agreement to know.
IANAL but I think the really controversial part of this whole scenario is that the district court ordered the program to be restarted within a week.
There are a lot of obstacles to complying. Mexican cooperation is a big one, but maybe bigger is the prior administration's dismantling of the bureaucratic apparatus that carried it out.
As I understand it, this program was operating for a while and then was effectively stopped by the prior administration and the people reassigned-- in abeyance, in other words. God alone knows what happened to the records, if any were generated.
Stay in Mexico is specifically an agreement w/ Mexico. Without it, it's a Semisonic song from the 90s.
"Closing time, you don't have to go home,
but you can't stay here".
And I really don't think Obrador particularly liked the old policy. From WaPo, 2018:
And from April this year, from CNN:
IOW, there doesn't seem to be room to Stay in Mexico. At the very least, it'll have to be, Stay in Mexico for a Guaranteed Visa to USA. That'll really rile up the right-wing zealots.
IIRC, Mexico was strong-armed into this with threats to close the border to trade if they didn't agree to what Trump wanted.
The Court of Appeals, unlike the Supreme Court, explained its ruling in detail. With regard to Mexico's agreement:
“Second, the Government argues there is no redressability because aliens cannot be returned to Mexico without Mexico’s consent. This argument fails because for at least some aliens, MPP would permit DHS to simply refuse admission at ports of entry in the first place. Further, Mexico issued a statement in 2018 consenting to admit aliens excluded from the United States under MPP—and nothing in the record suggests Mexico has since retracted that consent.”
The Court also notes that MPP policy was initiated unilaterally, without agreement from Mexico. The court order requires the United States Government to follow the MPP. It doesn't require anything of Mexico, which can accept or refuse to accept returned aliens, as it chooses.
https://www.ca5.uscourts.gov/opinions/pub/21/21-10806-CV0.pdf
I fail to see why an order signed on the first day in office, after a careful transition period, can be called arbitrary for that reason. Not even the wild-eyed conspiracy-theory Trump-appointed judge who threw it out used that justification. Nor Scotus. Kevin makes up this excuse for them, they didn't. That being said, they didn't give any other justification that makes sense either. They simply upended US-Mexican relations, gave no indication how Biden might fix the mess in a way they'd accept, and left him to fix it anyway. This is like a teacher who tells you a problem you correctly solved has to be done all over, doesn't say what you did wrong (because you didn't), and walks off because he doesn't like you. The only silver lining is that Scotus only refused a stay, so Biden can correct his "fault". But since no-one gave any indication what motivation or policy highly partisan judges will accept, he'll basically have to throw things at the wall and see if they stick. In foreign policy.
You could make the same argument of course for trump rescinding daca. Clearly trump indicated that in the 16 campaign.
And note that arbitrary and capricious is not the same thing as being unexpected. You could run and campaign on a policy that you are taking for arbitrary and capricious reasons.
Cue commenters here who are going to say it is different as trump was wrong on daca and no reasons you should not do that do his was arbitrary but biden overturning remain in Mexico is not because it was the right thing to do.
Buy those are policy judgements, not legal ones. And we do not elect the judges as a super legislature. The arbitrary and capricious standard is based on following the technical details of the law of the administrative procedures act. Not some generic concern as you seem to be thinking.
Why doing it on the first day on office is relevant has nothing to do with whether it was planned or known he would do it before then, it is that basically impossible to contend that you could have met all of the procedural rules on your first day in office.
And the administration had to know that this was a dead duck once it reached the Supreme Court. By doing it day one, they did not even provide a fig leaf attempt to comply with procedures. So why do it first day?
Perhaps because they figured that they would not really be able to satisfy the procedures act within a year or two anyway and so they knowingly broke the law expecting to lose but they could get the illegal policy they think is right in place for a time.
Or
They really wanted to keep remain in Mexico in place to help control the border ( remember first day we were also in the midst of the biggest covid wave). But politically that would outrage the more left wing of the party as would be betraying them. So best is to put the policy in place but do it in a way that is sure to get thrown out be the Court so " I tried " .
Except he didn't replace it with a policy that took into account their behavior as minors or adults.
+1
Remain in Mexico doesn't control the border. It does the opposite.
Of course that was one of the points Mayorkas made in his memo referenced above.
The border ruling is a political gift to Biden. He was torn between placating his hard-left base and doing that which is popular with median voters. Now the court has ordered him to do the latter.
Don't worry, Harris will come along and make some crack about supporting open borders at an inappropriate time.
Yes, exactly... I mean, just this week KOPALA MATTRESS was as boorish as Cheney & stupid as Quayle during her trip to Vietnam & Singapore.
The sexual innuendo does not do much for your ethos.
You could, you know, make your point without insulting and diminishing a black woman.
Frankly, the evictions ruling probably helps him, too (politically) in that it should be now clear to the Cori Bush wing that their beef if with courts, not the president.
From what I have learned from several legal experts, the problem is that an unusually high number of these controversial decisions are arrived by the shadow docket, thereby avoiding arguments and full briefings. It's therefore a distortion of normal court practice when relied upon to such a degree.
Yes, and thanks. Can Congress do anything about this?
'Regarding the first one, the Supreme Court has frequently said that a policy, once put in place according to the rules, can't be "arbitrarily and capriciously" ended. Since Biden killed the "Remain in Mexico" policy on his first day, it seems like you can make a pretty good case that it was arbitrary, can't you?'
No, you cannot. The policy was an abject failure, cruel and inhumane, and federally illegal. And all of this was known BEFORE Biden took office. There was nothing "arbitrary" or "capricious" about it. Those terms describe the policy itself.
It‘s strange that this aspect got very little attention here.
Lolz, cruel and inhumane is was not. It flooded even more illegals as the enforcement collapsed. You focus on less than 1% of all illegals in the Trump era. A silly post.
Except it wasn't officially killed until June 1st. New enrollments were suspended on January 20th. The memo which officially killed it then explained in very clear terms why it was a failure on multiple levels and did not meet either the domestic or foreign policy goals of the new administration. But of course that was all ignored by the courts...
Ian Milhiser is not happy... (but it is a good explainer, especially if you click the links):
https://www.vox.com/2021/8/24/22640424/supreme-court-remain-in-mexico-trump-biden-samuel-alito-immigration
'On the second one, the Court had clearly signaled months ago that it wouldn't approve an extension beyond July 30. Biden himself didn't expect to win a SCOTUS battle, and sure enough he didn't.'
All this says is that a right-wing court has no trouble granting Special Powers to a Republican President for... reasons. And refuses to support a (actually) Democratic President during the worst national crisis since WWII.
It's okay if you are a Republican.
Time to repeal THAT ironclad "law."
IAAL - Kevin is wrong, these rulings are outrageous
The headline of this post is technically accurate so long as you subscribe to the maxim that SCOTUS has the last word on whether any government action follows the law and/or the constitution - a principle which means SCOTUS can never be "lawless"
However, both decisions ignore and are contrary to literally decades of precedent, on both substance and procedure. And the latter item is not insignificant here - because of the maxim described in the above paragraph, the Judiciary has long been very precise and circumspect in how it interacts with actions of the elected branches. What this SCOTUS is doing is essentially tossing all that aside and imposing its preferred outcomes by fiat
This is frankly shocking behavior, which completely upends the long established relations between the branches of our government. It should not be trivialized or minimized - it is the sort of behavior that will incite a constitutional crisis
Lolz, the eviction ruling was standard sop. Lazy post by you.
SCOTUS didn't say there couldn't be an eviction moratorium, they just said that Congress has to authorize it. Fat chance of that happening, but it's not a surprising decision. I'm a little less clear on why, if Trump could institute the remain in Mexico policy, Biden couldn't just as easily reverse it.
Kevin: In the unlikely event you read the comments, peruse these Vox articles on why the immigration rulings are so outrageous:
https://www.vox.com/2021/8/24/22637775/supreme-court-texas-biden-remain-in-mexico-trump
https://www.vox.com/2021/8/24/22640424/supreme-court-remain-in-mexico-trump-biden-samuel-alito-immigration?scrolla=5eb6d68b7fedc32c19ef33b4
Commenters: Anyone else think Kevin publishes things like this and his "Don't worry, be happy, democracy is just fine" series from earlier this year just to pump hp page hits/ad revenue?
If Kevin were still posting for Mother Jones, I might agree with that assessment*, but if you take a second look around here, advertising seems rather thin on the screen...
*$diety only knows, they probably need the revenue given they've been unwilling to publish the last two fiscal years results.
This is a complicated issue, as the Court struck down Trump's ending of DACA on similar grounds (the current Court might not do this). But how does the Court get the authority to decide when something is "arbitrary and capricious"? Is this really a matter of Constitutional law? If the Executive has the power to issue the orders, why shouldn't a change of Administration lead to change in the orders?
This is amounting to more accession of power by the Supreme Court - or even lower courts which are passing on various policies. Does the Court get this added power just by "frequently saying" that they have it? What will ultimately limit the growth of Supreme Court power?
Congress getting off its ass.
It's called nullification.
"But how does the Court get the authority to decide when something is 'arbitrary and capricious'? Is this really a matter of Constitutional law?"
There's actually a huge body of jurisprudence on this very question. In a nutshell: agencies like DHS can issue rules (such as remain in mexico) only by going through a specific process delineated by the Administrative Procedures Act. In general, once that has been satisfied, the rule is a rule--it's law (unless vacated or remanded by a court, or nullified by an act of congress). A new administration cannot simply announce that the rule is no longer a rule (which is what Biden did with remain in mexico). An agency issuing a rule without going through the APA process is acting arbitrarily and capriciously, and contrary to law.
That's all SCOTUS ruled here. It's not surprising; and notwithstanding the ruling, if Mexico says "nope, we don't want to do it" after giving the Biden team a knowing wink, remain in mexico ends immediately.
See you understand and most of the comments here seem to be willfully ignorant about this .
The administrative procedures act has a bunch of hoops you have to jump through to change an executive order . And no way biden can possibly do this on one day . That is just willfully ignoring the law. So why do that and make it 100% obvious.
And, as you say, if Mexico had just been the one to rescind the agreement themselves, after that wink from biden ( and maybe even a public show of objection for appearance), could the court force biden to take extra actions to try to force Mexico to comply then?
Doing it on the first day was blatantly in your face ignoring the law.
Remain in Mexico was not an Executive Order. It was a rule promulgated any the Department of Homeland Security.
As far as ads go: Have you ever seen an ad on this blog? I haven't. The allegation is slanderous. I do believe that Kevin is honest here, however wrong he is.
My own take is twofold: A decision that is technically lawful can still be bad if the policy forced upon the executive leads to morally horrendous outcomes. Courts are supposed to be sufficiently practical to consider if the cost in suffering really needs to be paid just to satisfy some letter of the law. Especially if there is in fact plenty of precedent that would point in the more humane direction.
Second point: A decision with huge consequences for an already underprivileged group of people in one sentence? Give us all a break! These guys are not only dishonest, they are plain lazy and unprofessional.
Again, nope. They literally got rent free for over a year. A stupid policy made by the previous administration itself. The money isn't getting used because the problem was overstated. Deal with that. Siding with Fat slob Bush(who should be driven out of the Democratic party) shows your own ignorance.
"Courts are supposed to be sufficiently practical to consider if the cost in suffering really needs to be paid just to satisfy some letter of the law."
Well, but the truly dedicated legal formalist won't look beyond the dust on the pages. And funnily enough, in its effects legal formalism can be hard to distinguish from any other idee fixe that lets the interpreter get where the interpreter wants to go anyway.
I do think aldoushuxley is basically right, in that "arbitrary and capricious" is a technical term, not a common-sense one, that refers to requirements under the Administrative Procedures Act. IIRC there is kind of a grace period under the APA where rules can be dumped within a certain time after being issued without going through the full procedure (and Biden's administration hurried to do that with a lot of rules the trump people rushed through at the end, as I think trump's people did when they came in), but the Mexico one was too old for that.
This only means the APA gave the court an excuse. Intruding into foreign affairs, and requiring an administration to perform an impossible feat in an impossibly short time frame, really shows the majority's colors here. And this Texas district judge should have to declare an in-kind campaign contribution for creating a republican talking point going forward.
"Since Biden killed the "Remain in Mexico" policy on his first day, it seems like you can make a pretty good case that it was arbitrary, can't you? " -- KD
Since when did speed equal "arbitrary?"
arbitrary adj. Determined by chance, whim, or impulse, and not by necessity, reason, or principle.
I’m not concerned so much with “following the law” as I am with “doing the right thing”.
Of course if we have to rely on the current Congress to pass laws that make “doing the right thing” possible, we are clearly shit out of luck.
This is why I say do whatever it takes to do the right thing, fuck the law.
As long as we actually properly find Remain in Mexico I'm fine with it but evidence shows we have not.
As to the eviction totally outrageous because of the scope of the public health disaster and most of the government deciding to give up on mitigation the CDC absolutely has the power to avoid masses of coronavirus incubators loosed onto the streets. The emergency situation isn't over because you are tired of it.