Rov_Scam
22d ago
A lot of the pro-Trump/pro-deal faction on here like to describe themselves as realists and pat themselves on the back for understanding Realpolitik and not being squishy idealists. It seems to me, though, that the Realpolitik goes in the other direction. Russia is our biggest foreign military threat, and is the biggest threat to our allies as well. While I'd prefer a world in which they didn't invade Ukraine, they've proven both that they are too incompetent to score a quick victory and too bullheaded to call off their dogs. For their part, the Ukrainians don't seem to have any interest in capitulating.
What we have here, boys and girls, is a proxy war. Whether or not Ukraine has a shot at "winning" or regaining significant territory is irrelevant. Every day that the war continues is another day that the Russian military continues to deteriorate without any loss of American life? But what about the Ukrainians? As long as they're want to keep fighting, we should support them. They're morally in the right here, so I don't see what forcing a settlement on them accomplishes. If the war becomes unpopular enough that the situation changes, then I'm all for changing along with it, but other than a few anecdotal accounts of people fleeing conscription, I'm not seeing it. If there were mass anti-Zelensky protests in the street, we'd know about it. And the idea that Ukraine can't sustain these kinds of losses for much longer is hogwash. In World War I, Germany, with about the same population, lost close to 2 million war dead. Ukraine's population was similar at the beginning of World War II and they lost 1.6 million war dead, in addition to over 5 million civilians. In 3 years of fighting, Ukraine has lost about 100,000 soldiers and a few thousand more civilians. This war can continue for a very long time.
The thing that pisses me off the most about this, though, is that Trump makes it sound like a deal is ready to go and all that's missing is Zelensky's signature, but I haven't seen any evidence of that. All we have is Trump's word that Putin is willing to deal, but for all we know that could mean anything. There seems to be some suggestion that the front lines will be frozen, but I just don't see that happening. I don't see Putin letting the forces in Kursk who he's been unable to dislodge in 6 months being allowed to stay indefinitely. It wouldn't surprise me if, in addition to this, Putin were to start demanding additional concessions, like Ukrainian withdrawal from the entirety of the regions he wants to annex.
And at this point there's no reason for Puitin not to make such demands. If he gets them he gets them, and if he doesn't, then he's in the same position he was a few months ago. And what does Trump do in that situation? He certainly hasn't indicated that if Putin is the one that isn't willing to deal, that he'd send US troops or drastically increase aid or anything like that. In other words, I really just don't see how making this deal furthers American interests in the region. I can see how it furthers Donald Trump's personal interest, in that he wants credit for ending the war regardless of how bad a deal it is or whether the peace lasts longer than the end of his administration. I honestly don't see the point in all this.
And one final point: A bunch of people have said that it's better for Ukrainians that the killing stops and that they still have a country, period. First, if you're going to make that argument, at least acknowledge that Putin is more to blame for all of this than Zelensky. He could end this war right now if he cared to, but he's more concerned about pursuing his revanchist vision of Mother Russia. Second, if you want to do this, don't talk about realism, and don't talk about how you personally don't give a fuck about whether Ukraine survives because you only care about America. These views simply aren't compatible.
Rov_Scam
25d ago
I don't see what's so bad about it, and it's certainly less annoying than your making accusations and using them to paint half of the entire population with a broad brush. I'm not a huge fan of people announcing their exit, but this is certainly preferable to past users who have decided to end their time here with a long whinge about why they're leaving, complete with accusations about the mods not acting fairly since most of them were skirting perma-bans anyway.
Rov_Scam
28d ago
As someone pointed out below, rare earths aren't valuable. Furthermore, the largest mining company in the US that does them operates a single mine in California; a concession in a war zone probably doesn't appeal to them too much. But even if all of the above didn't matter, so what? I don't see how a mining concession is different than any other business interest or how the presence of a mining operation is supposed to be some kind of deterrent. If Russia wants to attack Ukraine, the miners aren't going to start shooting at them. The US isn't going to start a war against Russia over potential disruption of an unprofitable mining operation that's probably mostly Ukrainian workers anyway. If this is what counts as 3D chess, consider me unimpressed.
Rov_Scam
28d ago
No, it means the entire deal was worthless. The deal wasn't that the US would continue to support Ukraine militarily in exchange for mineral interests; that's what Zelensky was gunning for. The actual deal on the table was that Ukraine would grant the US rights to 50% of the revenue in Ukrainian rare earths, the idea being that it would give the US skin in the game to keep Russia from advancing further into the country. Of course, if defending these interests is more expensive than the interests are worth, you aren't going to defend them. The whole thing was essentially a modest giveaway. This is why Zelensky kept insisting an a real security guarantee.
Rov_Scam
28d ago
Whatever the legislative debates say doesn't matter at this point, because the exceptions have already been enshrined in law by the Wong Kim Ark decision. I did read the branch you refer to, but I didn't address it because what you guys were arguing was edge cases that, as far as I can tell, don't apply to any known persons. I'm unaware of any extraterritorial raids by natives, let alone whether any of these had children while they were here. Interestingly enough, you actually would need common law reasoning in this case, because the court specifically recognized the exception based on common law, and that's where you'd therefore go to test the bounds of it. That's assuming, of course, that there are no intervening court opinions that have already addressed the issue.
Rov_Scam
28d ago
Well, no, it's no "if"; the opinion explicitly states that amendment covers aliens. "Implied license" is only mentioned as the historical context for why the exception exists, not as a test for creating new exceptions. The reason the opinion doesn't discuss the amendment as it would apply to anyone in the situation of a modern-day illegal immigrant is because such a situation didn't exist at the time the amendment was adopted. These older opinions aren't structured as well as the newer ones, which is why I said that they require a close reading to tease out exactly what the court is doing, but it's pretty straightforward: It cites a rule (those born in US territory are citizens) and the exceptions (diplomats, invading armies, Indians, people born on ships). If Wong Kim Ark is still good law, that's as far as the analysis goes, since the court clearly defined what the exceptions are. What your suggesting is that congress can create a new class of persons that didn't exist at the time of the amendment's adoption, apply common law principles to argue that there would have been an exception if the class actually existed at the time of adoption, and use that as justification to pencil in a new exception that didn't exist under common law and wasn't recognized by the Wonk Kim Ark court. There might be an argument for this if the court hadn't ruled, but the court did rule, and you can't do this without overturning 130-year-old precedent.
To give an analogy I'll use a situation that comes up in my own professional life. I handle a lot of product liability cases involving occupational exposure to hazardous chemicals. The exposure to these chemicals took place many decades before the plaintiffs developed their disease. As you would imagine, the plaintiffs in these cases have to prove that they were actually present at the facilities where they are alleging exposure. Ideally, the plaintiff will testify to where he worked, but sometimes the plaintiff is deceased. In those cases, we find coworkers who can testify to where the plaintiff worked and the chemicals he may have been exposed to. But what happens if you can't find any coworkers? You can use employment records, but if the guy was in a union or otherwise visited jobsites where he wasn't employed by the owner, there's probably not going to be anything useful.
Some attorneys got the idea to use spouses, children, etc. to testify to where the plaintiff worked. The problem is that this is hearsay that doesn't fit into any exception. I was involved in a heated courtroom argument last year where plaintiff's attorney was arguing that the common law reasoning behind the hearsay rules was reliability—hearsay is presumed to be unreliable, but we make exceptions for cases when we think it is reliable. The guy in question worked as a union boilermaker for three years at a power plant while it was under construction. No one on the defense side seriously believed that the husband (along with several coworkers the couple was friends with) spent three years lying to the wife about where the husband was working. But the law doesn't allow the judge to just create a hearsay exception because he thinks the testimony is reliable.
The parallels are unmistakable: Hearsay rules developed out of common law principles. At some point, the state legislature codified these into rules of evidence. A situation arose (people developing occupational diseases 50 years after exposure) that wasn't contemplated by the rules. Someone tries to argue that the rules shouldn't apply to this case because the evidence they want to admit is in accordance with common law principles. But you can't just shoehorn exceptions in because you can theoretically justify their existence.
Rov_Scam
29d ago
If Ark has a justification of the invasion exemption that neither justifies an exemption for illegal immigrants nor falls afoul of my criticisms, then lets hear it.
To wit:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, “All persons born in the United States” by the addition “and subject to the jurisdiction thereof,” would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases – children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State – both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. . . .
In other words, the exceptions are justified because the framers of the amendment sought to preserve those that were recognized at the time of ratification. There's nothing in the opinion that suggests the amendment allows for every conceivable exception under common law. I think people lose the plot after the part that says:
The principles upon which each of those exceptions rests were long ago distinctly stated by this court. . . .
The opinion then goes on to discuss those principles, but at no point does it suggest that those principles can be used to craft exceptions other than those that the court recognizes in opinion. Further on, it closes the door:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes....
That's it; here's the rule, here are the exceptions. It couldn't be any clearer.
Rov_Scam
29d ago
I'm not sure what you're getting at here. Wong Kim Ark interprets the 14th Amendment to read that everyone born in the United States is a citizen, subject to the exceptions that were recognized prior to adoption. Indians owing tribal allegiance were among these exceptions. Furthermore, the amendment doesn't state that these are the only circumstances under which one can become a citizen, it just says that these people are citizens. So if congress wants to extend citizenship to other classes of people, they can do so, and have done so. Otherwise, there would be no naturalization and no citizenship for children of US citizens born abroad.
Rov_Scam
29d ago
The articles you linked rest on the presumption that the jurisdiction clause is a stand-in for Common Law exceptions, and that any exception that would apply in the common law would apply for the purposes of the amendment. Hence, people looking for an out tend to get lost in the weeds of the Common Law and get hung up on the justifications for the exceptions and try to apply them to illegal immigrants and other undesirables. That's not what the case says; the long discourse on the Common Law is used for the purpose of explaining why the exemptions exist, and nothing in the opinion suggests that it is to be used for the basis of coming up with additional exceptions. The court is clear:
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.
The authors tacitly admit this when they say they can't find a common law justification for the exclusion of Indians. That's because the clause doesn't preserve every conceivable common law exception; it preserves the exceptions that were recognized at the time of the amendment's adoption, most of which happen to derive from the common law but one of which doesn't. In any event, no such exception actually exists under the common law. Modern immigration law is a creature of statute with only limited corollary in the common law. What people asking to add an exception are asking is to pretend that a statute from 1965 was part of the common law and continue the analysis of the 14th Amendment using common law principles. This is absurd; the concept of an illegal immigrant in the modern sense simply didn't exist at common law. The court goes on to say:
The acts of Congress known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning or impair its effect, but must be construed and executed in subordination to its provisions.
This concept seems obvious, but it's forgotten completely when people are arguing about this. If the exception didn't exist at the time the amendment was adopted, we can't statutorily write it in later. If the amendment, at the time it was adopted, includes aliens, congress can't go back years later and create a new class of "illegal" aliens who aren't covered, any more than they can write in any other exemptions. Allowing them to do so would allow them to gut the amendment entirely. To summarize:
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The clause isn't defined by common law, but by the exceptions that were recognized in the United States at the time of the amendment's adoption, regardless of whether they have any basis in common law.
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Even if the clause were defined by all the common law exceptions, "illegal immigrant" isn't a recognized exception.
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Congress doesn't have the power to create new exemptions by redefining terms.
Rov_Scam
30d ago
You and @Gillitrut and whoever else can go on with comparisons, analogies, and philosophical lucrubations involving the meaning of "under the jurisdiction thereof", but a close reading of Wong Kim Ark makes it crystal clear that there is no universe where this is necessary. When the court mentions the classes that are exempt under the jurisdiction clause, they aren't listing examples of possible exemptions; they're listing the exemptions themselves. That's it. You don't get to add to the list. The opinion makes it clear that the goal of the amendment was to confirm that freed slaves were citizens. Hence, all persons means all persons. The jurisdiction clause was only put in because the government had already recognized certain exemptions prior to the amendment's passing: Diplomats and invading armies were already excepted under common law, and uncivilized Indians were exempted based on their peculiar status in the United States.
This wouldn't be so infuriating if conservatives hadn't spent the past several decades advocating for the kind of minimalist judicial standards that we see in Wong Kim Ark. There's no equivocation, no balancing test, no attempts to shoehorn contemporary ideas into archaic concepts by broadening their scope, just clear, bright-line rules. The fact that we've since restricted immigration to the point that there are 500 different kinds of visas and some aliens who can travel without visas and a whole underclass of illegals below that doesn't change what the 14th Amendment says. It's the same logic as in Bruen, just because the world has changed doesn't mean we change the meaning of the law along with it. And that argument is much stronger here; states had been restricting firearms since the 1800s, but our definition of a natural born citizen has remained consistent until this past month.
Rov_Scam
1mo ago
That would be... a solution, but far from a simple one. Even if Trump were DOGE administrator, that wouldn't mean that the DOGE administrator has presidential-like powers. So any action would have to be evaluated as to whether Trump is acting in his capacity as president or in his capacity as DOGE administrator, and stuff he does outside of DOGE could theoretically be challenged on the basis that it's part of DOGE and thus illegal, and the whole thing would turn into an even bigger mess than it already is.
Rov_Scam
1mo ago
Well that's the question isn't it? What percentage of addicts do you think have to be functional before it's worth spending $25 worth of Narcan on them?
Rov_Scam
1mo ago
Given that he's advocating the return of debtor's prisons, I don't think he cares too much about EMTALA.
Rov_Scam
1mo ago
Part II of this charade will begin when Ms. Gleason, realizing that she is liable in this lawsuit for the actions New Mexico, etc. find objectionable, takes control of DOGE staff and begins issuing orders. Then Trump is forced to fire her, except he can't without conceding to the court that Musk is actually in charge of DOGE. And nobody is going to want a position that has no real authority other than to act as the fall boy for a lawsuit. This is going to be good.
Rov_Scam
1mo ago
It's not that every drug addict is a great musician as much as it is that more than you think are perfectly capable of being productive. Naloxone is trivially inexpensive; I don't think that letting someone die over a perceived inability to pay a small sum is any way for a civilized society to operate. This isn't like cancer treatment.
And if they can’t pay the debt, they go to debtors’ prison, which we also need to reintroduce.
No, we don't. There's a reason we abolished these in the 1800s and established a bankruptcy code. Hell, for how much it costs to imprison someone, we'd better off just having the state pay the debt in all but the most serious cases. The only thing we really have that's comparable to debtor's prison in Pennsylvania is jailing people for failure to pay child support, and this isn't taken lightly. Basically, it's threatened repeatedly, but only against people who obviously have the ability to pay and are just refusing to do so. I used to practice bankruptcy, and believe me, these people are trying to pay. They've usually put themselves in a much worse spot than they could have been in if they had filed earlier. Fraud is rare, and it's rarer still to find a bankruptcy attorney who would file a case in which fraud was evident.
Rov_Scam
1mo ago
You're assuming that everyone who ODs is a hopeless junkie, and that all hopeless junkies are incapable of being anything other than bums. Pretty much every jazz musician who came up in the late 40s and early 50s was a heroin addict, and some were truly hopeless. Yet a good deal of them were extraordinarily productive. Same with any number of rock musicians who OD'd. Same with my brother's neighbor, who had a good job and had been to treatment but fell of the wagon and OD'd because she no longer had the tolerance for her old dose. My friend's ex-husband overdosed in a gas station bathroom despite having a good job and leading an otherwise normal life. You can't paint everyone who has a serious drug habit with a broad brush and say that there's no hope for recovery and that their lives have no value.
Rov_Scam
1mo ago
I'm a member of a VFW and the VA is popular enough that we have people who assist veterans in applying for VA benefits. I don't doubt that media reports of incompetence are accurate, but the impression I get is that this is largely dependent on the hospital and the doctor. I'd certainly prefer the VA over any of the smaller rural hospitals and over most of the suburban regional hospitals.
Rov_Scam
1mo ago
Even the technical side isn't great. I've been locked out of my account on desktop for a while now since every time I try to log in I get into some kind of loop where it keeps asking for my login information. I never really used it much, so now I just don't use it at all. I imagine for people who are into it they've figured out all its quirks, but for a casual user like me it just isn't worth it.
Rov_Scam
1mo ago
It's not a contradiction; there are plenty of things like this. Just last night, a friend of mine's temperature light went on. She was low on coolant. $5 worth of coolant later she was back on the road, no harm done. Had she not spent this five dollars, she could have overheated her engine, rendering a $20,000 car unrepairably useless and leaving her without transportation indefinitely. Deciding against spending the $5 would have been saving a paltry amount and risking severe and devastating consequences.
Rov_Scam
1mo ago
I'm guessing you never had to deal with business decisions before. Technically, you'd have to ask them, but based on the advice I give, most businessmen have an intuitive understanding that late payment is better than no payment and that bad customers are better than no customers. I don't know that failure to pay a late fee would have been grounds to terminate that particular contract, but even if it did, what of it? Now they have to find someone else to buy 12,000 tons of metallurgical coal per week, with no guarantee that they're going to get a similar price or that the new customer is going to be any better at paying than the old customer. It reminds me of what the owner of a bar I used to frequent once said. He was complaining about how one of his cooks quit without notice a couple weeks after she was hired. Mildly sympathetic, I said "Good help's hard to find." He replied "Bad help's hard to find! I gave up on good help 20 years ago!"
Rov_Scam
1mo ago
Big law firms basically froze hiring for a few years, smaller firms weren't doing great, jobs were hard to come by, those you could get didn't pay any better than other jobs, and huge percentage of law school graduates more or less gave up. So right now there's a huge demographic gap where you have partners in their 50s and associates in their 20s and early 30s and few people in between to do all the senior associate stuff. It's not exactly catastrophic, but it's not a position the firms want to be in again if they can help it.
Rov_Scam
1mo ago
Like I said, this case was significantly more complicated than I made it out to be in the post. What the case actually turned on was a provision in the Uniform Commercial Code meant to address situations such as this. A complicating factor was that Warren wasn't even technically in arrears. The terms IIRC called for something like payment within 30 days plus escalating late fees after that, with breach not occurring until the bill was 6 months overdue. Warren had never once paid "on time" but had waited until the last minute and withheld the late fee. There was some argument about whether the coal company had waived that contract provision by accepting payment without protest, and the coal company was arguing that this was evidence that they were juggling their payments to see what they could get away with, and there were rumors of an impending bankruptcy, and that yes, an order requiring them to comply with the contract terms would essentially mean giving away something like $400,000 worth of coal for free.
The case boiled down to the UCC provision allowing the request for reasonable assurances of performance. The judge was sympathetic to the coal company, but he said that if they had concerns they could have requested reasonable assurances at any time, and that anticipatory repudiation of the contract wasn't proper. Then the argument became how long Warren had to provide the assurances and whether the coal company could suspend performance until it received assurances. This is where the whole irreparable harm thing came in, with Warren saying that if they didn't get the Friday shipment that over a thousand employees would be laid off by the end of the weekend and the mill would be idled indefinitely. The final ruling was that the coal company had to make the shipment but that Warren had to make reasonable assurance before the next shipment, and he would dismiss the breach of contract suit as soon as the shipment had been received.
In a general sense, no, it isn't fair, which is why the UCC has provisions for dealing with that kind of situation. If the coal company had concerns it could have asked for assurances a week prior. In any business transaction, there's always some chance that the other party isn't going to hold up his end of the bargain, and that's the risk you take doing any business. The coal company could have protected itself with a condition requiring prepayment back at the formation stage, but they didn't, even though Warren was only a few years removed from coming out of a previous bankruptcy. Up to this point, Warren had held up their end of the deal, just not in a way that inspired much confidence, and there were rumors that they were insolvent. Furthermore, if Warren had already filed for bankruptcy this question wouldn't have even come up, because suppliers have to keep honoring contracts during a bankruptcy.
Rov_Scam
1mo ago
Firstly, monetary damages cannot be irreperable harm, and this is a settled legal principle for hundreds of years.
This is a general principle, but there are always exceptions. Most of these involve judgment-proof defendants. Say Fred and Sam are having a dispute over a driveway Sam uses to access his business. Fred puts up concrete barricades on the disputed right-of-way, denying access to Sam or any customers, preventing use of the business. Sam cannot operate his business and sues Fred for trespass. Sam may be able to calculate that he's losing $5,000/day in revenue while the barricades are up; under the rule, he wouldn't be entitled to a TRO. Except any court would grant him one, because if the case takes a year to resolve, it's unlikely that fred will be able to come up with $1.8 million in damages.
This example is based on a case I actually dealt with a couple years ago except the defendant wasn't some random guy but a railroad (it was a dispute over a crossing agreement). I was still able to get a TRO, not because there was any question of the railroad's ability to pay damages but because I convinced the judge that my client couldn't afford the mortgage and ongoing maintenance costs to the property without the property generating any revenue. Damages would be cold comfort if the property were foreclosed on and he were forced into bankruptcy.
Another case I was peripherally involved with during my time in oil and gas involved a contractual dispute between Warren Steel and a coal company whose name I can't remember. (This is a grossly oversimplified version) Warren had an ongoing contract with the company that required them to deliver coal to the mill a few times a week. They were way behind on payments and owed hundreds of thousands of dollars. The coal company said they weren't getting any more shipments until they paid what was overdue. Warren sued the coal company for breach of contract arguing that future deliveries weren't conditioned on payment for prior deliveries. From here it gets a bit complicated. The typical remedy here would be for Warren to buy coal on the spot market and collect the price difference from the breaching coal company. Warren argued that their financial position was precarious (there was no denying this based on their payment history) and that they would be unable to secure credit to buy at sharply inflated spot market prices. If the coal company didn't make their next scheduled shipment, they wouldn't be able to make any steel, would have to shut down the mill, and any hope of them remaining operational would be gone. the court issued the TRO and told the coal company to make the delivery. In any event, Warren Steel filed for bankruptcy a few days later.
And who could forget the man himself, Donald Trump. If you remember, last year he was on the wrong end of a nine-figure civil judgment, and was told that if he wanted to stay the judgment pending appeal he would have to post a bond of $450 million within 30 days. This is about as clear-cut as it gets—he had $450 million in assets. If he posted the bond and won the appeal, he'd get the money back. So what's the problem? He successfully argued that since no insurance company would take real estate as collateral, he would have to liquidate it at fire sale prices, causing irreparable harm. The judge agreed and reduced the bond to something an insurance company could manage.
Secondly, a TRO must have an end date. That's part of what makes a TRO temporary.
Most court orders aren't written by the court. If I'm asking for a TRO, I have a copy of the order with me and I hand it to the judge to sign if she decides to grant it. In most cases, you're asking for the TRO in motions court early in the process before the case is listed for trial and assigned a judge.After that it has to go to calendar control for them to schedule a hearing for a preliminary injunction. By law that hearing has to be within 14 days, but the judge who's signing it doesn't know when that's going to be; the upshot is that we put the 14 day max in the order.
In this case, the judge who issued the TRO wrote the order herself after the hearing had already been scheduled. She's hearing arguments tomorrow, after which, she'll either lift the order entirely or grant an injunction. There was no reason to put a specific expiration date because it's implied that she's going to lift it after the hearing.
Under Kentucky, law, they aren't; that's the purpose of the safe harbor provision. The problem is that they didn't comply with the safe harbor provision by only getting an attestation rather than a sworn declaration. To be clear, all an attestation is is a verification by the notary that the person whose signature is on the document is the person who signed it. The change would have been trivial to make at the time of signing, and the bank shouldn't be exempt from the consequences of not following the law.
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