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I think that "hindering a policy agenda of an administration" could be applied much more broadly than that.
For example, a Harris administration could have decided to deport all Tesla or Twitter employees without US passport on the pretext of them harming their economic agenda. Or an administration could deport all foreign journalists which lean a way the regime does not like. Or you could kick out all foreign professors who do not fall in line with the administration. Or prevent international conferences on topics which you would rather not see discussed. Or deprive areas where the other party is in power of international tourism.
At the end of the day, it benefits a nation greatly if it can make binding commitments about permanent residence being revoked only with due process. In the past, the US was able to attract the very best immigrants. If a highly qualified immigrant is willing to forgo political expression as a condition of their residency they might as well immigrate to China -- getting deported from there as a Westerner is likely less of an ordeal than getting deported from the US is.
Yes, with the caveat is that if the reason for kicking them out is activity that would be protected under the First Amendment, the Secretary of State would have to personally approve each deportation. This is statute law; Trump isn't making stuff up here. It appears this was involved for Khalil; it doesn't look like it for Chung since they're accusing her of criminal activity, the details of which presumably they'll have to give when this gets to court. Again, deporting aliens who commit crimes is legal by statute.
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Due process for being revoked also hinges on due process that does revoke, or deny, being honored and not undermined or circumvented willfully or publicly. Otherwise, there is no due process- there is only the binding commitments by those who are able to get away with not honoring commitments against those expected to be bound by them.
If you want a demos to be publicly on board with, say, refugee acceptance, then you need refugee criteria that are not transparently redefined and gamed to facilitate acceptance of people beyond the original concept of refugees. Similarly, if you want there to be public expectation of a judicial review of immigration cases, then there needs to be a basis for there to be an expectation of timely resolution and that migrants won't simply be let go and disappear into the interior. Absent a basis for public trust that the system would work properly, there is likely to be little political traction over concerns that the system won't work properly in other ways. It may be true, but it was already true.
This is not, to be clear, an endorsement. It is, however, an observation.
What we are seeing is a consequence of policy tools that can benefit a nation greatly being changed in ways that destroy public trust and legitimacy in said tools, often because said tools were used for partisan advantage or even abuse. The partisan utilization of said tools, often at the public advocacy of members of those very institutions due to ideological capture overriding professionalism, has led them to no longer being seen as great benefits for the nation as much as benefits to the partisans at the expense of their opponents. That things can benefit the partisans and the country alike has become outweighed by the desire to defy partisan impositions and the who-whom distinction of who has the power to get away with it.
This applies to other beneficial things as well. I think higher education is a good thing. But if you want cross-partisan support of public universities that employ talented foreign professors, then you need to maintain cross-partisan support. This is harder when public universities take open and consistently partisan stances on public issues and their own employment / admission processes. It becomes even harder when said partisans attempt to overtly and covertly circumvent unambiguous legal prohibitions to their partisan preferences. The demonstrated interest in such cases is not 'let's prioritize the public interest'- it is the preservation of partisan interest.
As partisan prioritization prevails, appeals to the broader nation grow weaker. 'Think of the good to the nation from tourism,' for example, will often fall flat if it comes a few years after tourist-centers were attempting to organize boycotts of other parts of the nation over ideological differences.
It might be 'beneficial' to have high public trust in public institutions, but trust does not follow the benefit of having trust. Trust follows from the actions. The more partisan the actions, the more partisan the trust, and thus subject to revocation / reversal with partisan changes.
Yes, this does mean things will get worse before they get better. This is an observation, not an endorsement. But it will not avoid getting worse / get better faster to simply respect an imposed a partisan preference system... particularly when the partisan coalition in question is not a social majority, but has/had conflated institutional capture with social persuasion.
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This is the hard core of the debate. It's the same with treaties: on the one hand, how do you make a binding commitment when your government potentially switches between factions every four years? On the other hand, how do you make democracy work if you permit governments to bind the hands of their successors?
How fair is it that Biden or Starmer or Boris Johnson can import 600k immigrants in a program that has a guaranteed citizenship at the end of it and then say, "Har har, it benefits the nation that we can make binding commitments about permanent residence, suck it."
Don't get me wrong, your point is legitimate, which is what makes it complicated. I will go so far to say that I think it is a genuine flaw in democracy as a system, which only survived as long as it did because power was firmly reserved to an elite who tended to agree, and who were careful about issues of genuine contention.
With legislative supermajorities. If you can get 51% agreement on something, good for you, but there's no reason to expect that to bind others once a slight shift of political winds leaves you at 49%. But if you can get 60% (or 67%?)? That might be something worth hanging on to for longer, if it's not so soundly refuted that support drops to 40% (or 33%).
Why? If you have supermajority agreement on something, you don’t need a special mechanism to protect it - no government has attempted to legalise murder or indentured servitude for small children.
If you don’t, if it falls beneath 50%, why should the fact that 60% of people thought policy X was a good idea 10 years ago prevent it from being dropped when those people change their minds?
Technically, because a little hysteresis is beneficial in any case where a continuous (and worse: continuous plus noisy) input is used to determine a discrete output where switching between outputs is costly. We wouldn't even consider using a keyboard without a "debounce" filter; it might be reasonable to consider using a government with one.
Politically, for the same reason as we have a supermajority requirement for Constitutional amendments - to permit governments to, slightly, bind the hands of their successors. In the case of binding commitments it would also be sufficient to simply have a population who were mostly able to avoid hitting "defect" first in an iterated Prisoner's Dilemma, but here we are.
At least we're getting better. We had a government that legalized slavery for small children for nearly a century, yet now the thought of something similar happening again is worthy of use as a reductio ad absurdum. Maybe that's the paradox you're pointing out, though? The distance from "we should amend the Constitution to prevent voters from legalizing slavery" to "we can't imagine voters legalizing slavery" wasn't too great. Perhaps it's pointless to speculate about amending the Constitution to force voters to not make any game-theoretic screwups, if we couldn't actually get such an amendment through until we practically have an electorate who wouldn't screw up regardless.
Agree with you re: hysteresis.
Dubious on the supermajority requirement for political reasons. Bear in mind that I'm not writing from an American perspective here, but I'm dubious about the concept of a constitution and amendments. Partly because I'm not sure it's healthy for political life to move from "I believe that free speech of this form is good because..." to legalistic arguments about "The first amendment says...". Partly because the supermajority requirements seem both too strict and too loose: anything about 50% seems so strict that it's very rare to reach and yet precisely because it's so rare you basically only have to get supermajority agreement once and then everyone has to live with whatever wacky idea you had for generations.
I admit that my "60%? 66%?" bit was partly a crack at the subtly different levels needed to ratify this or end a filibuster over that, but was partly just an admission of ignorance as to what the "right" level to require would be. My ideas here aren't quite graduating to the status of "brainstorming" vs just "spitballing".
New spitball: we could probably push the arbitrariness back a step, as well as avoiding being too stuck on an outcome from a singularly bad era, by by just requiring anything that overrides an old law to have half the margin that the old law passed by. They got 66%? You need 58% to undo it. Only 60%? You just need 55%. The smaller margins should be much less rare than the larger ones, but still rare enough to make planning for the future less capricious.
I would only want something like that in concert with a "House of Repeals", though, an institution that could only initiate bills to repeal old laws, not to add new ones, because otherwise it would also end up reinforcing the existing "hysteresis of laziness" problem where laws linger long past obsolescence only because lawmakers have little incentive to prune them.
Yeah. XKCD famously mocked the "it's not illegal for me to say this, so hooray for me" line of reasoning once or twice, but the converse of "freedom of speech is all about what the government can do and so my attempts to squelch it privately are just fine" is pretty awful too.
But this feels like a mirror of the US founding fathers' arguments. In that case, the Federalist fear of "a Bill of Rights will be used as an excuse to deny the limitations on power in the body of the Constitution" and the anti-Federalist fear of "those implicit limitations will be easy to overreach so even redundant explicit limitations on the most important types of overreach" turned out to both be true, and so in hindsight the anti-Federalist position was least bad. Even if without a Bill of Rights we might have taken longer to get to the point where legal precedent says "the Constitution says the feds can do anything they want, Madison just misspelled that as 'commerce' for some reason", we'd still have gotten to that point, and then that would have been the end of their limitations entirely.
Similarly, it sucks that some people think the First Amendment is the be-all and end-all of free speech, but I have trouble imagining that the same people would have otherwise become principled defenders of unrestricted public debate. I think they hammer on "The first amendment says" primarily because it's literally the most authoritarian position they can take without freaking people out by outright saying they want to weaken the Bill of Rights. Take away that Schelling point and most of them would just take even more authoritarian positions with less opposition.
What I mean isn’t really that “what the first amendment allows” becomes the definition of free speech.
It’s that turning politics into law distorts politics and degrades law. On the one hand nominal proponents of free speech (as an example) forget why they care about it and how to argue for it because they get used to just saying “First Amendment rights, bitch”. On the other hand, it means that actual meaningful discussion of what these rights ought to be get distorted into legal wrangling about how to interpret legal documents; these being matters of high impact, this means increasing politicisation of legal appointments and blatant distortion of the law on both sides (abortion rights, gun control etc. on the left and now birthright citizenship etc. on the right). As an outsider, it doesn’t look healthy.
Britain has historically operated on a ‘whatever parliament says, goes’ basis, softened but not constrainted by historical convention. We moved to a more rights-based system in the last few decades due to importing European human rights law, and it’s having exactly the kind of distortion art effect I describe above.
That's a very good point. We try to make 66% or whatever the de jure floor for "overturn this rule", but if the median voter is tempted enough or unprincipled enough then 51% remains de facto sufficient for "wilfully misinterpret this rule and get away with it".
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