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PaperclipPerfector  10mo ago (text post)   26736 thread views

Culture War Roundup for the week of January 22, 2024

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So interestingly enough it appears that some of Abbott's claims have actually been litigated before, amusingly enough by California in the late 90s, but by other states as well (including Texas once before). California v. United States, 104 F.3d 1086, (9th Cir. 1997). While the 9th Circuit did in essence punt on the case, dismissing it for failure to state a 10th Amendment claim, the court at least discussed the Invasion clause argument. While I will try and do some analysis, I also just want to post some excerpts.

In its Complaint, California asserts that the number of permanent illegal residents in California stands at 1.7 million - 5% of the [*1090] state's population - and increases by approximately 125,000 a year. California further asserts that, in the fiscal year this action was initiated, it would spend nearly $ 2.4 billion in providing federally mandated education and health care benefits to illegal aliens and in incarcerating illegal aliens who commit crimes within the State.

Well that sounds like it could have been written by Abbott's press secretary, just swap Texas for California, update the numbers, and bam, you have a ready-made complaint.

California's Complaint consists of eight claims. In Count I of its Complaint, California asserts that [**6] the United States has violated its obligations to protect the State from invasion and to guarantee it a republican form of government under the Invasion and Guarantee Clauses of Article IV of the United States Constitution by failing to stop the intrusion of illegal aliens across the State's borders.

Starting off strong, I like it. So what does the 9th Circuit have to say?

For this Court to determine that the United States has been "invaded" when the political branches have made no such determination would disregard the constitutional duties that are the specific responsibility of other branches of government, and would result in the Court making an ineffective non-judicial policy decision. See Barber v. Hawaii, 42 F.3d 1185, 1199 (9th Cir. 1994) (dismissing an Invasion Clause claim as a nonjusticiable political question). Additionally, even if the issue were properly within the Court's constitutional responsibility, there are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion. The Court notes that the other Circuits that have addressed the issues before us in similar suits against the United States have reached the same conclusions that we do. Padavan v. United States, [**10] 82 F.3d 23, 28 (2nd Cir. 1996); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995), cert. denied, 134 L. Ed. 2d 777, 116 S. Ct. 1674 (1996); New Jersey v. United States, 91 F.3d 463 (3rd Cir. 1996); Texas v. United States, No. B-94-228 (S.D. Tex. Aug. 7, 1995), appeal pending, No. 95-40721 (5th Cir).

Moreover, California ignores the conclusion set forth by our Founders. In The Federalist No. 43, James Madison referred to the Invasion Clause as affording protection in situations wherein a state is exposed to armed hostility from another political entity. Madison stated that Article IV, § 4 serves to protect a state from "foreign hostility" and "ambitious or vindictive enterprises" on the part of other states or foreign nations. The Federalist No. 43 at 293 (Cooke ed. 1961). 6 It was not intended to be used as urged by California.

Unsurprisingly, they dodged the question.

In terms of SCOTUS tea leaf reading, hah. Better scholars than I have tried, and their predictions rarely beat a coinflip. Still, I'll give it a quick and dirty try. Right, so the opinion was written by Judge Merhinge, but Judge Reinhardt joined the opinion, and he was notorious for having his cases overturned by the Supreme Court. That said, despite the 9th Circuit's reputation as having many of their cases overturned by SCOTUS, it's important to remember two things. One, the Supreme Court only takes cases that have at least a chance at being overturned. If everyone agrees the lower court got it right, it's unlikely they'd bother taking the case. Two, by simple volume the 9th Circuit just has more cases than other circuits. They preside over some 20% of the US population, which is almost double that of the next most populous circuit (the 11th, with 11%). Despite this, they have only a slightly above average population per judge, so they can accept more cases. More cases means a higher chance of a controversial decision, which means more of their cases go to SCOTUS, which means they'd have a higher overturn rate. Just adding context. Anyway, Judge Reinhardt was also a highly respected feeder judge, which doesn't happen if you aren't a good jurist.

The 9th Circuit in its opinion engages with the definition of "invasion", and their view of understanding the founders to have included "massive influx of illegal immigrants" under the term "invasion" is not favorable for Abbott. The fact they can cite several precedents on this subject is also not good for Abbott, because it provides the liberal members of the court with jurisprudence, and the conservative members cover to avoid a possible constitutional crisis. Throwing up your hands and saying "not my monkeys not my circus" might not be the courageous thing to do, but it may very well be the legally appropriate thing to do. Saying something is a non-justiciable political question is the Supreme Court's favorite way to punt, and if I was going to put money on it I'd wager that's exactly what they're going to do.

It’s quite sad, really, the Californians truly did try to save themselves before they were overrun.

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

They wouldn't be armed, and the covert nature would prevent the courts from finding that there's foreign hostility.

Now that I think about it, I'd question the competence of foreign adversaries who haven't taken advantage of the open border. They needn't even be setting up sleeper cells, just getting intelligence agents in and out without being documented.

At the scale of two million per year I think the side making the claim that there's no foreign adversaries mixed in should bear the burden of proof. There's not even one guy among the two million who have ties to the militaries of Iran, China, Russia, North Korea?

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

Attack what exactly? None of four countries you listed are at war with USA.

I challenge the premise is that the border is open -- if it was, it'd be a lot more than 2 million per year. Border crossings happen with cooperation of organizations closely aligned with USA ruling class, and they don't want to help those associated with four countries you listed enter USA. Americans don't need to put border fence, they just need to put heads of those organizations in prison forever.

just getting intelligence agents in and out without being documented.

This argument has never passed the smell test with me. The purpose of human intelligence (HUMINT) is to have someone who can go somewhere that satellites can't. Someone who can make quiet overtures to the Colonel who runs the jet propulsion laboratory at a party, or who can have a nice cup of tea with the professor who just published a paper on a 2.35% more efficient stealth coating in a university coffee shop without anyone raising an eyebrow. You know who can do that? The Russian "cultural attache" at the embassy, or the Chinese math savant on a student visa at MIT. It makes perfect sense for them to hang around people like the Senator on the Foreign Relations Committee, or the head of the Applied Robotics Laboratory at Stanford. Some random ass nobody who was smuggled across the southern border has a much higher barrier to get access to the kind of people that HUMINT is about getting access to. That someone would try to put a sleeper cell in that way makes more sense, but again, why bother? If the Chinese government decides to set up a sleeper cell in the United States, getting three husband/wife pairs green cards isn't that hard, and the old adage of "never break more than one law at a time" has to apply doubly so to spycraft. Being on green cards means the US Government is aware of their existence yes, but the drawbacks of trying to get them over the border illegally (possibility of apprehension by Border Patrol, difficulty of getting decent-paying work, possibility of deportation at the whim of the government) all outweigh the benefits.

I remember reading about a case where the soviets did send a guy in over the Canadian border. The advantage is that he's harder to track than a known foreign national. He might have been East German, but same thing.

The guy ended up falling in love with an American woman. The soviets wanted to retract him or something but he quit his spy job for love by telling his handlers he had AIDs and would be dead soon. (This worked)

https://en.wikipedia.org/wiki/Jack_Barsky

He also did a 3 and a half hour interview with Lex Fridman.

Dittrich arrived in Chicago on 8 October 1978, flying in by way of Mexico, using a Canadian passport with the name William Dyson.

That is a fully general argument for never letting anyone into the country, ever (also unfalsifiable, since when you don't turn up any foreign agents you can just say they're really sneaky) Far more people enter the country legally every year, and some of them are definitely spies. If Russia or China want to send an agent into the US, they can just... put them on a plane. Give them a bullshit job at the embassy (or just overstay a tourist visa). Being "undocumented" isn't a feature for a spy. It's a hindrance.

Imagining myself as an adversary of the United States, I could covertly send unarmed soldiers across the open border, have them obtain weapons on the other side, and then attack.

Teeth of the Tiger was not Clancy's finest work.

I mean, seriously, why? Going to stage an attack on a military base with a few dozen guys using civilian smalls arms? A terrorist attack to put yourself in the top spot on America's shitlist?

Teeth of the Tiger wasn't written by Tom Clancy, it was ghostwritten and published under his brand along with 50 other books.

Most real terrorist attacks don't have a very reasonable motive, but they still happen. A lot of the time the perpetrators rationalize that they are trying to provoke an overreaction, but that rarely works out. Although recent events in Israel may be a partial exception.

Anger makes violence seem more pragmatic than it is, famously.

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