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PaperclipPerfector  12d ago (text post)   32035 thread views

Culture War Roundup for the week of April 14, 2025

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The problem is not with the withholding order. The problem is that apparently everyone expects infinite process before you’re actually able to execute any removal.

In the Garcia case, the government made a mistake by not complying with that withholding offer (I’ll assume that it was indeed a mistake, and not deliberate flouting of the order, because otherwise the below argument doesn’t apply). Liberals, moderates, and centrists seem to believe that the outcome at hand means that the Garcia’s right to due process was not met, and district and some appellate judges seem to believe that too. There is an implication here that if Garcia’s due process rights were met, he would not have been deported to El Salvador. This is not so. There is no amount of due process that will prevent government from ever making mistakes of this sort, and excessive efforts of judiciary and activists using the judiciary to prevent mistakes meaningfully detract from the Executive’s ability to execute its core function.

The simple fact is that there is absolutely no existing process that could have prevented this mistake. Garcia had final, confirmed on appeal order to be removed. He had no further ability to appeal it. If the government removed him to a different country, that would have been it. This is how the process works, not just in immigration, but in every case.

For example, imagine you’re a tenant who stopped paying rent. Landlord goes through legal process to get you evicted, you appeal, but since you’re clearly in the wrong, ultimately you get a final eviction order. Accordingly, you get a notice from sheriff’s office that you’ll get evicted on May 1st, approved by court. However, on April 30th, the sheriff looks at the calendar wrong, and thinks that your eviction date is today, and evicts you. A clear mistake, in violation of court order to remove you on May 1st. However, is it a violation of your due process? No, there was absolutely no judicial process that you were not given access to, that would have prevented your too early eviction. What is the legal remedy that you should be accorded after the fact? I actually don’t know. I would actually be fine with no remedy or damages at all: the government does extremely detrimental things to people all the time that have no remedy whatsoever, the sovereign/qualified immunity and all that, but if you insisted on some damages, I’d accept the sheriff reimbursing you for any actual cost caused by too early eviction, like eg. one night hotel stay.

Now, imagine a judge ordering the sheriff to kick the landlord out of the freshly vacated home, and effectuate your return to the home that you were about to get evicted from anyway. It just so happens that you were also a wanted fugitive on federal charges, and as you were getting evicted by state officers, federal officers use the opportunity to arrest you and throw you in federal prison. The judge then require the state sheriff to somehow “facilitate” your release from federal prison, without specifying in any way whatsoever as to how exactly you are supposed to do it, or what that even means. Lastly, it issues a statewide injunction on any evictions unless you get one more hearing after final (already appealed) eviction order, with another ability to appeal the outcome of that hearing, to prevent additional future eviction mistakes.

Most people would see this as a mockery of justice, an excessive concern for the rights of someone who is clearly in the wrong, and meaningful making it even more difficult for people who are in the right to have their rights enforced. And yet, here we are.

Most people would see this as a mockery of justice, an excessive concern for the rights of someone who is clearly in the wrong, and meaningful making it even more difficult for people who are in the right to have their rights enforced.

What bearing does being "in the wrong" have on a persons rights? How does what's happening in the Garcia case make it more difficult for people who are in the right to have their rights enforced?

Americans are in the right to want to deport tens of millions of illegals, and excessive concern for the rights of illegals make it meaningfully more difficult to enforce the right to remove them.

Americans are in the right to want to deport tens of millions of illegals

I'm one of them!

and excessive concern for the rights of illegals make it meaningfully more difficult to enforce the right to remove them.

Who are you to say my concern is excessive?

In the Garcia case, the government made a mistake by not complying with that withholding. There is an implication here that if Garcia’s due process rights were met, he would not have been deported to El Salvador.

That's not true, there was certainly a way to meet his rights and still deport him to ES. At the very least, the executive ought to dissolve its own order.

There is no amount of due process that will prevent government from ever making mistakes of this sort

Seriously? There is no amount of due process that will prevent the government from not following its own orders?

I feel like "there is a reliable central database run by a group half as competent as the dude responsible for delivering burritos" isn't even an amount of due process, it's a basic measure of government competence.

and excessive efforts of judiciary and activists using the judiciary to prevent mistakes meaningfully detract from the Executive’s ability to execute its core function.

I'm not sure a case about the judiciary restraining a dysfunctional government is really meaningfully detracting the government from getting its shit together. If anything, a kick in the ass might actually help them realize that in order to execute their core function, they first need to achieve operational competence.

At the very least, the executive ought to dissolve its own order.

No, because they were not aware of that order. They should have, but they weren’t. That’s why it was a mistake. If they were aware of this this order, they would have either followed it and deported him elsewhere, or seeked dissolution before deporting him to El Salvador. Your retort only makes sense under assumption that they knew about the order but chose to ignore it nevertheless. In my previous post I explicitly assumed this to not be the case, and said that if it was the case, then the situation and the analysis is completely different.

There is no amount of due process that will prevent the government from not following its own orders?

Yes, exactly, because after following all the due legal process, someone can still make a mistake. Think about my example of sheriff looking at the calendar wrong. I’m not saying that what they did was right. It was wrong. However, it was not a wrong that could have been prevented by scheduled due process.

I feel like "there is a reliable central database run by a group half as competent as the dude responsible for delivering burritos" isn't even an amount of due process, it's a basic measure of government competence.

I actually think that the US government does not have nearly enough databases of its citizens and present non-citizens, but yes, I fully agree that what happened here was incompetence. The point is, incompetence will occasionally happen, due process cannot and will not prevent all incompetence-induced errors, and it is not possible to prevent every case of incompetence before the fact with some pre-defined process without significantly compromising effectiveness in executing basic functions.

If anything, a kick in the ass might actually help them realize that in order to execute their core function, they first need to achieve operational competence.

Maybe, but I suspect that what happened here is that they wanted to actually execute their core function before activist judges tarpit them, and rushed things so much that they missed an order that someone failed to input properly into database back in 2019, or something like that. This is not meant to imply that they didn’t do anything wrong, it’s just operating in hostile legal environment will cause mistake rate to be higher.

I think we agree on a number of things: this was incompetence and that due legal process will not prevent all incompetence-based errors.

I think where we disagree is that this particular error was incompetence of such degree as to be a violation of due process (all but conceded by the government anyway) and that violations of this kind (ignorance of a duly entered legal order that they had a legal duty to know about) are the kind of things that can be prevented. One doesn't need to think that every error can be prevented to believe that such a glaringly obvious one can be.

Maybe, but I suspect that what happened here is that they wanted to actually execute their core function before activist judges tarpit them, and rushed things so much that they missed an order that someone failed to input properly into database back in 2019, or something like that. This is not meant to imply that they didn’t do anything wrong, it’s just operating in hostile legal environment will cause mistake rate to be higher.

I think they are quickly going to learn that this strategy. And the sooner they internalize that if they don't do so, they are going to be restrained from doing anything, the sooner that lesson gets passed up the chain that if their leadership wants anything done, they better do it properly.

I think where we disagree is that this particular error was incompetence of such degree as to be a violation of due process (all but conceded by the government anyway)

No: this was a violation of Garcia’s right, but it was not a due process violation. Whether error is egregious or not is orthogonal to whether it’s a due process violation.

and that violations of this kind (ignorance of a duly entered legal order that they had a legal duty to know about) are the kind of things that can be prevented.

Most of them, certainly. My point is that there is a trade off here between error rate and your effectiveness. The more efforts you take to prevent any and all errors, the harder it will be to actually get the job done. Democrats understand this very well: that’s how they effectively banished almost all of death penalty in US. That’s why I oppose excessive concern for due process, because I know that it’s not principled stance, but rather instrumental, only to achieve a specific nefarious political purpose.

One doesn't need to think that every error can be prevented to believe that such a glaringly obvious one can be.

Yes, but even so, the glaringly obvious mistakes will nevertheless occasionally happen, and sometimes there will be little legal remedy available too. I’m willing to consider proposals to make errors less likely, but only if they are paired with proposals to make the whole process faster and more effective. Of course, Democrats won’t entertain deals like that.

No: this was a violation of Garcia’s right, but it was not a due process violation. Whether error is egregious or not is orthogonal to whether it’s a due process violation.

I'm not sure how this is so. For one, had he been given any kind of notice and chance to challenge his removal, one imagines he could have raised the issue of his procedurally-valid and as-yet-not-revoked withholding.

Most of them, certainly. My point is that there is a trade off here between error rate and your effectiveness. The more efforts you take to prevent any and all errors, the harder it will be to actually get the job done. Democrats understand this very well: that’s how they effectively banished almost all of death penalty in US. That’s why I oppose excessive concern for due process, because I know that it’s not principled stance, but rather instrumental, only to achieve a specific nefarious political purpose.

This is surely so. That doesn't mean that, as a matter of negative polarization, those that oppose those efforts should be against these arguments in all possible configurations.

One can look at a death penalty case that has received a full trial and multiple appeals and decide that is (more than) enough process. One can also look at someone detained and removed in the middle of the night and conclude that this is not enough process. I'm not an idiot that thinks that if Democrats say the sky is blue, it must instead be green.

Yes, but even so, the glaringly obvious mistakes will nevertheless occasionally happen, and sometimes there will be little legal remedy available too. I’m willing to consider proposals to make errors less likely, but only if they are paired with proposals to make the whole process faster and more effective. Of course, Democrats won’t entertain deals like that.

Of course they wouldn't. But given that they don't control any branch of the Federal Government, we don't need their assent to anything either.

For one, had he been given any kind of notice and chance to challenge his removal, one imagines he could have raised the issue of his procedurally-valid and as-yet-not-revoked withholding.

One could imagine a process that would have prevented the issue, but none such process was due him, and even if there was, as I keep saying, a mistake could have happened after that process was completed. For example, imagine he got a notice he is getting deported to Venezuela, tried to appeal it, failed, and then on the deportation day there is a mix up and he accidentally gets put on a bus that gets people onto a plane to El Salvador.

One can also look at someone detained and removed in the middle of the night and conclude that this is not enough process.

Sure, but in my opinion, the process is already very excessive. For example, I think that the standard procedure should be that people who never had valid immigration to begin with, should only get to appeal their deportation after already being deported.

One could imagine a process that would have prevented the issue, but none such process was due him, and even if there was, as I keep saying, a mistake could have happened after that process was completed.

Well, I guess I disagree that he isn't due some kind of notice and chance to leave in an orderly fashion.

But even then, if a mistake happens after some kind of process, even a minimal one, then you can point to the process and at least say that an attempt was made. It's no argument to say that because we can't prevent every mistake, we shouldn't try to prevent any mistake.

For example, imagine he got a notice he is getting deported to Venezuela, tried to appeal it, failed, and then on the deportation day there is a mix up and he accidentally gets put on a bus that gets people onto a plane to El Salvador.

Yes, that might happen. So what? Again, the fact that you can't prevent every mistake doesn't mean we must be totally indifferent to every mistake imaginable.

Sure, but in my opinion, the process is already very excessive. For example, I think that the standard procedure should be that people who never had valid immigration to begin with, should only get to appeal their deportation after already being deported.

Is it excessive? Or did the 2019 adjudication simply come to the wrong conclusion?

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