To be sure, even if they *were* scary criminals, they would still deserve decency and a reasonable hearing! Then the law, if just, ought to be applied.
I do worry that there's a little bit of "Chief Mourner of Marne" Syndrome on all sides of this debate, but I suppose there usually is.
EDIT: Oh, and, of course, Merry Christmas to you as well!
Yes, sorry, I was too obscure there! Scott Alexander once summarized "Marne" for his readers (introducing his seminal "I Can Tolerate Anyone Except the Outgroup"):
> In Chesterton’s The Secret of Father Brown, a beloved nobleman who murdered his good-for-nothing brother in a duel thirty years ago returns to his hometown wracked by guilt. All the townspeople want to forgive him immediately, and they mock the titular priest for only being willing to give a measured forgiveness conditional on penance and self-reflection. They lecture the priest on the virtues of charity and compassion.
> Later, it comes out that the beloved nobleman did not in fact kill his good-for-nothing brother. The good-for-nothing brother killed the beloved nobleman (and stole his identity). Now the townspeople want to see him lynched or burned alive, and it is only the priest who – consistently – offers a measured forgiveness conditional on penance and self-reflection.
> The priest tells them:
>> It seems to me that you only pardon the sins that you don’t really think sinful. You only forgive criminals when they commit what you don’t regard as crimes, but rather as conventions. You forgive a conventional duel just as you forgive a conventional divorce. You forgive because there isn’t anything to be forgiven.
> He further notes that this is why the townspeople can self-righteously consider themselves more compassionate and forgiving than he is. Actual forgiveness, the kind the priest needs to cultivate to forgive evildoers, is really really hard. The fake forgiveness the townspeople use to forgive the people they like is really easy, so they get to boast not only of their forgiving nature, but of how much nicer they are than those mean old priests who find forgiveness difficult and want penance along with it.
> After some thought I agree with Chesterton’s point. There are a lot of people who say “I forgive you” when they mean “No harm done”, and a lot of people who say “That was unforgiveable” when they mean “That was genuinely really bad”. Whether or not forgiveness is right is a complicated topic I do not want to get in here. But since forgiveness is generally considered a virtue, and one that many want credit for having, I think it’s fair to say you only earn the right to call yourself ‘forgiving’ if you forgive things that genuinely hurt you.
> To borrow Chesterton’s example, if you think divorce is a-ok, then you don’t get to “forgive” people their divorces, you merely ignore them. Someone who thinks divorce is abhorrent can “forgive” divorce. You can forgive theft, or murder, or tax evasion, or something *you* find abhorrent.
It seems to me (James) that, in the immigration debate, many people are quick to "forgive" illegal entry becauae they don't actually think it's morally wrong or believe that it causes any harm to anyone (as long as the illegal immigrant is "decent" and not a murderer). Likewise, some on the other side are quick to "forgive" alleged abuses by ICE because they don't actually think it's morally wrong or socially harmful to use brutality/cruelty as a tool of intimidation, and are quite happy to "break a few eggs" if it gets them the "omelet" of lower immigration.
And, yeah, everything about Mr. Trump's Canada policy has been nuts.
This is thorough and reasonable. My initial reaction is that, having just finished the book "Stasiland" by Funder about the work of the DDR's secret police, I am left feeling as many of the East Germans felt: just because things are legal does not make them right, and being arrested in order to protest what is both legal and immoral is, perhaps, the highest call of a patriot. I'd be interested to read your take on how to approach ICE's actions with a "spirit" of the law hot take. I, obviously, believe that though they may toe the letter, they've trashed the spirit. Anyway. Good read! Merry Christmas!
With all due respect, if you think ICE's actions resemble those of the Stasi, you may also be entitled to compensation from your Misinformation Insurance.
Going further, what exactly is immoral about ICE's actions? Is it how they're going about enforcing immigration law? Or is it that immigration laws in general are immoral? Or is it that US immigration law in particular is immoral?
I did not equate ICE to the Stasi. I equated the actions of citizens under the DDR to those of Americans protesting today. In both situations, people are acting upon a personal recognition that what is legal isn't moral.
Mass detention, family separation, and deportation practices that disregard basic humanitarian consideration are immoral because they violate core principles of Catholic social teaching and natural law.
Detention in degrading conditions, lack of adequate medical care, and coercive enforcement tactics are incompatible with respect for human dignity.
Also, the Church explicitly recognizes the right of persons to migrate when they cannot secure the necessities of life in their homeland (CCC §2241). States can regulate borders, but this authority is morally limited (especially when one state has significantlymore resources). Enforcement must be humane, proportionate, and oriented toward the protection of persons, not just territorial control. When ICE actions prioritize deterrence or punishment over human welfare ("cruelty is the point", they exceed moral limits.
The family is the fundamental unit of society in Catholic teaching (CCC §2207). Practices such as family separation or deportation that knowingly fracture families inflict grave moral harm. The Church consistently teaches that the state may not pursue policy goals by directly undermining family integrity. I could share stories of my students not being able to do homework due to deported family members, but I'm sure you can imagine.
I'm a former theology teacher so I operate within that context. Catholic teaching rejects the idea that legality alone confers moral legitimacy. This is the DDR analogy. A state can act legally and still act unjustly. When ICE enforces laws in ways that foreseeably cause grave harm to persons, ignore due process, or violate basic human rights, Catholics are morally obligated to judge those actions as unjust and, therefore, immoral.
That makes more sense; it is still wrong. For example, incarcerating someone for committing a crime knowingly fractures a family and creates instability within households--is it, therefore, illicit under Catholic teaching as you understand it?
Further, I also question whether the people coming here are unable to obtain the basic necessities of life--that is, food and shelter.
It sounds to me as though you believe that immigration laws are in and of themselves illegitimate, or that you believe that if someone is not probably a malefactor that it is immoral to not let them in. Please forgive me if I find this position to be, in the long-term, detrimental to everything you claim to want to uphold.
Deportation isn't focused on reintegration and doesn't allow for family visits.
The notion that people only have a right to migrate in search of basic rights is silly. For example, I've migrated to Germany, even though I could remain in the US if needed.
I do indeed believe that anyone who is not a bad actor has a right to migrate. I think that's the closest we could get to imitating the Kingdom of Heaven, specifically regarding immigration.
And I think it's a good thing you were able to migrate to Germany (and some of my friends were able to legally migrate to America), but I don't believe you (or my friends) had a fundamental right to do so.
Good thing there are systems that work properly to facilitate this, demonstrative of the fact that functional immigration with dignity is not an absurd goal.
I am pleased to have presented the law and am grateful it was informative! As you have detected, I have much stronger views on what the law *is* than what the law *should be*. For those who take the view that current law is unjust, one must do as one does with unjust laws: seek to change it. Possibly even engage in civil disobedience against it.
As I said in another comment somewhere around here, in principle, I don't object to civil disobedience, although I might very well disagree about whether it is appropriate in this instance. What got my goat here was so many people performing or demanding civil disobedience *while claiming to act in the name of the law*, which I find very dangerous.
I would certainly like to try, at some point, to squeeze a few thoughts out describing what I think our immigration policies ought to be. I tend to like "people have a right to migrate" as a first principle (my libertarian youth still lives in parts of me!), but I also think the costs for the receiving country are real, mount up faster than immigration liberalizers tend to think, and justify restrictions even on perfectly nice people in lots of contexts. In its attempts to balance this hard problem, I don't think current U.S. law is unjust on its face, but I think it is unjust as applied to certain situations (which have become tragically common).
Good points throughout. And, in my opinion, I would consider many nails being hit by the same hammer. We are living in unprecedented times of exaggerated claims, as well as exaggerated emotions with a hyperfixation of POV footage that only depicts ONE side of the story. Laws are laws, and I will not stand here and let the law be abused.
I mentioned this in my own little reflection on OLG, as someone who has traveled the immigration system, it is a system RIPE FOR ABUSE. It's easy to lie, easy to cheat and very easy to extend things for major gain.
Heck, even the citizenship process was simpler than what many people go through to adopt a child that was born in the U.S.
With all of that being said.
One thing that does stand out, but not for lack of information, but rather because it escapes the concept of "objective" is that it seems like one of the goals of the administration is to use a certain level of fear tactics to affect the people who reside in this country illegally. Which is not a tactic that I disagree with 100%. The REAL ISSUE is that when you use certain tactics, you also affect the people who have been going through the already harsh and invasive immigration process (though easy to break) and add even more fear into their hearts.
I have felt a need to carry my naturalization certificate (a rather inconveniently large piece of paper) in my person for the JUST IN CASE moment. A moment that has not yet come to pass.
Will ICE ever come to my door looking for me? No, 0% chance of that happening.
Will ICE ever come to my children's school looking for my children? No, 0% chance of that happening.
Will ICE ever detain me if I am in at the wrong place at the wrong time?... I want to say 0%, but I honestly have the fear in my heart, so I have to say. The odds are not 0%.
So, congrats Trump admin. You did strike fear into the heart of ONE immigrant turned U.S. Citizen.
Your post is informative and it helps me with my own fear, but I cannot look at the situation and say "Yup, thats never gonna happen to me" Because the system by which I came here seems flawed by designed. Flawed enough (in my opinion) to say "Maybe I made a mistake and I am not sure, but now I am looking over my shoulder".
I would even go so far as saying that the odds are not 0% that it happens to me. They're lower for me than for you (and I am *sincerely* sorry about that ugly fact), but it's possible for me to imagine myself in the wrong place at the wrong time, caught up in a raid or arrest, don't have my wallet on me (I forget it sometimes) and boom, I'm in the clink. Hopefully just for a few hours but maybe as much as a few days with leg shackles on and limited/no contact with my family.
One of the problems here is scale. With any police enforcement, mistakes are made (and, also, malicious actors create "mistakes"). Let's say that once out of every hundred times the police act, they act against the wrong target, or don't follow the right procedures. (That's a made-up number. I've no idea what the true rate of police error is, and I'm sure it varies a lot.)
If you live in a very small town with 50 residents, where one crime is committed per year, that's great. Once every century, the police are going to make a significant mistake. It's going to be BIG NEWS. People are going to FREAK OUT. It'll be completely unheard of! When it finally happens, not a single person will know a single other person it has ever happened to -- nor to their parents, their grandparents, or their great-grandparents!
On the other hand, if you live in a neighborhood with 500 residents, and one crime is committed in your neighborhood per *day*, you're in more trouble. Once every three months, the police will make a significant error. Over the course of a lifetime, about half the population of your neighborhood will eventually be (falsely) arrested. *Everyone* will know *lots* of people it's happened to. Many people will have had it happen to them.
In these two scenarios, the police remain exactly as skilled and exactly as effective, but the increase in crime in the second scenario *by itself* causes an almost unbelievably large increase in the rate of police errors and false arrests.
That's a problem for us, because there are a heck of a lot of people here in violation of immigration law. In 2024, the federal government prosecutes 62,000 federal criminal cases (18,500 were immigration crimes). If we assume an "oopsie" rate of 1% (again, totally made-up number), we would expect about 620 people, over the course of a year, to be mistakenly arrested, maybe even mistakenly charged, maybe even hurt, for no very good reason. That stinks, but some degree of police error is the cost of having police, and it's about the same number of Americans who die annually from falling out of bed.
However, the current *illegally present* population of the U.S. is estimated between 11 and 14 million. If the U.S. arrested all of them tomorrow, and had a 1% "oopsie" rate, we would expect approximately 120,000 Americans, which is like if the entire population of Billings, Montana were falsely arrested.
This means that any very large-scale operation against very large-scale illegality imposes much, much higher risks on innocents than "normal" police work. People get scared and have some reason to be, because suddenly they are in close proximity to police and being in close proximity to police is more dangerous than being far away from the police.
(And that added cost of enforcement -- a general increase in fear -- is well worth considering when formulating policy, Congress!)
All of this is a long way of saying: yeah, you're right, that's fair. I think there would be fear no matter what, because of the scale of the problem... but, also, Trump is doing nothing to allay the fear, is actually *stoking* the fear it seems, and may be using it as a tool to advance his own ends.
Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.
I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.
(Dr. Martin Luther King, Jr., "Letter from a Birmingham Jail")
"Someone who says 'I'm against abortion' but says 'I am in favor of the death penalty' is not really pro-life. Someone who says that 'I'm against abortion, but I'm in agreement with the inhuman treatment of immigrants in the United States,' I don't know if that's pro-life."
(the current Pope, admittedly speaking off-the-cuff)
I did originally write a question about Lauren Handy and the FACE Five for this FAQ, but I decided in the end that it was too far off topic and that I could address the problem more succinctly elsewhere.
The gist of it is that I thought what Lauren Handy did (chained herself to an abortion clinic entry) was heroic resistance to a grotesquely unjust law... but, at the same time, it never occurred to me to be mad *at the FBI* for arresting her over it. She was convicted, of course, because she was guilty. The pro-life movement was angry about this, but the only real reason they (we?) came up with was inconsistency: the FACE Act also protects places of worship (a necessary addition to get the bill through Congress), and the accusation was that the Biden Administration was enforcing FACE strictly for abortion clinics and not at all for churches. Fair enough, if true. (I never really dug into it.) But also not a good reason to let Handy walk free!
She was later pardoned. I have very mixed feelings on that. The presidential pardon power exists specifically to allow some deviation from the letter of the law, so that the president may free someone from the unjust and unexpected application of a generally just law. But to pardon someone for the expected application of a generally unjust law? That seems to threaten the foundations of our system. I'm glad she got out, since, in a perfect world, she should never have been in, but not sure I could have or should have done the same if I were in the Oval.
This was a long aside, but my ultimate point was this: I don't really have a problem with people who believe U.S. immigration law is unjust and engage in nonviolent civil disobedience against it. I may even support them at times, and admire their heroic virtues. (Portions of it *are* unjust, probably, I think.) So I think we are on the same page on civil disobedience.
This article was inspired by so many people claiming that ICE is somehow trampling on the Constitution or the law of the land or the separation of powers, when, really, it's *accepting* all those things in this arena for the first time in *years*. Since, as you know, my theory is that civil war is sparked by legitimacy crisis, I become alarmed when a large segment of the public comes to view entirely legitimate actions as illegitimate. If they see it as unjust, that's fine, that's what democratic debate is all about, but seeing it as illegitimate, when it isn't, strikes me as very perilous.
Knowing only what you've said about Handy's case, I would say that, if the Biden administration was in fact only pursuing prosecution of violators of 18 U.S.C. § 248(a)(1) and not 18 U.S.C. § 248(a)(2) ( https://www.law.cornell.edu/uscode/text/18/248 ), then Handy was a victim of injustice: the injustice of ideologically wielded prosecutorial discretion. The law protects both types of facilities; while court resources are admittedly limited so some choice is necessary, prosecutors should not be selecting which prosecutions they pursue on the basis of ideological preference for one part of the law over the other.
So if the claim made about the prosecutorial decisions of the Department of Justice under President Biden is true, then I would submit that it was an unjust application of the law (whether the law itself is just or unjust is another matter). In that sense, pardoning Handy could be viewed as remedying an injustice. (On the other hand, if prosecutions of both (1) and (2) were pursued, with convictions and acquittals being entered on the strength of the evidence and not on the strength of which attorneys got assigned to each--a subtler use of prosecutorial discretion, to put the worse lawyers on the cases you don't mind losing because you're only prosecuting those to say that you're pursuing those as well--then the pardon was an unjust use of the pardon power, because it amounted to a pocket repeal of (1) but not (2) on ideological grounds.)
I brought up Dr. King's words (which may be more powerful in full context: https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html ) because I think what is happening is that his admonition that one must "willingly accept[] the penalty of imprisonment" (or other penalty) in the course of civil disobedience against unjust law (or, more precisely, a law the protester views as unjust) is being forgotten.
Take January 6, 2021. Obviously, then-President Trump had a legal right to claim that he had not lost the 2020 election. (He was wrong, and he was lying, but he was allowed to say it without penalty so long as it wasn't in sworn testimony.) He had a right to pursue remedies in the courts. (He did not have a right to win those cases, and of course he lost most of them, because his claims were, again, wrong.) His supporters similarly had a right to make the claim (though, again, they too were wrong).
But after the various judicial and administrative remedies had been exhausted, that is when he overstepped: calling supporters to DC, giving the Ellipse speech with "We fight like hell", and then refusing to call in appropriate law enforcement resources to keep the more violent supporters from breaching the Capitol. That is when he broke a law--a law he, personally, considered wrong and unjust (it was not, whatever one might have wished the outcome of that election to be, but that is beside the point here; what matters is that he viewed it as unjust, even if only for cynical and self-interested reasons, just as many people view large swaths of immigration law, or certain of the procedures followed in its enforcement, as unjust even if it might not be), but he broke it nonetheless--and then, for more reasons that you've detailed, refused to accept the penalty (loss of passive suffrage absent Congressional action) and got away with it.
(Of course, Donald was not "expressing the highest respect for law" in the first place because he was in the wrong on the point and he knew it, but after he had done what he did he would have shown respect for the law had he accepted the prescribed penalty for what he had done, and not run for office in 2024. Instead he defied the law, and his supporters demanded that he be allowed to defy the law, "as [did] the rabid segregationist"; Dr. King there is talking specifically about something you bring up in your article, the "massive resistance" campaign in the US southeast following 1954's Brown v. Board of Education.)
Assuming, purely for the sake of discussion, that the allegations of inconsistent prosecution were true, I think you are right that there's a colorable argument for pardoning Handy, because, just as you say, ideologically-driven inconsistent prosecution is an injustice to the prosecuted. ("For my friends: everything! For my enemies: the law.")
However, if the statute of limitations hasn't run out, it seems to me that the even stronger legal move is to just prosecute the others! Then Handy has nothing to complain about (prosecution is now consistent) and the law has been fulfilled. That was what I had in mind when I wrote my previous comment.
If the statute of limitations has run, though, then, yes, I agree with you: if you can't solve the inconsistency with convictions, you ought to solve it with clemency.
I cosign everything you say about King and Trump, and I heartily recommend the Birmingham Jail letter to anyone reading this who hasn't. I thought I knew everything worth knowing about the civil rights movement after several units on it in school, and had often *heard* of the letter, but I found it richly rewarding when I actually sat down to read it.
(And I also think you're right that activists today -- on all sides -- would benefit a great deal from re-reading it, and King's philosophy as a whole. I didn't agree with him on every particular, but he articulated a philosophy of protest that was both noble and effective, and from which we have all drifted somewhat.)
The stronger legal move, if it's possible, would be to prosecute violators of (a)(2), that is true. But court resources are limited (the wheels of justice grind slowly), so even though it might gall those who wish to see the law fulfilled in all particulars arguably the correct use of discretion is to not prosecute except in the most egregious cases, and if Handy's was not, then a pardon may well be correct. (Looking at the US DoJ summary, it appears that federal enforcement has been almost exclusively for (a)(1), including cases under the Bush and Trump administrations: https://www.justice.gov/crt/special-litigation-section-case-summaries#Scott Of course, the law also permits action to be taken at the state level, and I don't know what's been done there. I did find claims made about unequal enforcement but they are from ideologically biased sources and don't appear to cite actual data to back up the claims made: https://rutherford.house.gov/media/press-releases/rutherford-urges-equal-prosecution-under-face-acthttps://www.justice.gov/media/1386461/dl?inline )
As for the statute of limitations, some digging led to me to 18 U.S.C. § 3282 https://www.law.cornell.edu/uscode/text/18/3282, providing that unless otherwise specified, all non-capital federal crimes cannot be prosecuted if five years have elapsed since the crime was committed. 248 does not appear to provide otherwise, so there is a reasonable argument to be made that the current administration could and should have pursued actions against violators of (a)(2) which the previous administration did not, rather than pardon Handy.
On King, meanwhile, he was of course deeply influenced by Mohandas Gandhi, but what I've also observed is that what both Gandhi and King had was other elements of their protest movements who were very much willing to be violent if they felt it necessary. (King's message to racist white lawmakers, such as President Johnson, was, to an extent, "Meet me where I am or Malcolm X and the Black Panthers will start a race war." Malcolm, in turn, supported the aims of the peaceful protesters like King, Bayard Rustin and John Lewis--the only photograph of King and Malcolm together was taken when both were in DC for hearings on the Civil Rights Act, and reporters manoeuvred them into meeting at all to get the picture--and accepted his role as the "villain" of the movement because he knew that without that pressure much of King's activism would come to naught, though some actions like the Montgomery bus boycott may have worked regardless because they caused economic harm to businesses. Gandhi, similarly, could note to the British colonial authorities that if India wasn't granted its independence peacefully, ideologies such as those espoused by the likes of Subhas Chandra Bose and Savitri Devi Mukherji could well become ascendant instead, leading to a war and potentially a fascist India. Britain had of course recently dealt with a violent independence movement much closer to London, that being in Ireland only decades prior.) His philosophy of protest, and especially his willingness to accept the legal consequences of his actions in protesting, was noble; I would dispute that it was on its own effective, and I think he knew full well that he needed people like Malcolm X being genuinely extremist in their rhetoric in order for his own demands to sound reasonable. In doing so he was able to change the choice faced by society from that between "a negative peace which is the absence of tension" and "a positive peace which is the presence of justice" to one between the positive peace and the brutal violence of a race war.
(It has occurred to me that one subconscious motivation for the decisions in Trump v. Anderson and Trump v. United States was a fear that if Donald were disqualified, or properly prosecuted for his very serious crimes, his supporters--some of whom had already proven their willingness to be violent--would get even more violent, perhaps against some black-robed jurists working at One First Street, Northeast. The law should not be impeded by an assassin's bullet, but the fear of the bullet is a powerful motivator.)
Having given this a bit more thought, and this is aside from the point of the article and rather on the point about 248, there may be another issue with nonprosecution of Section (a)(2) violations (or corresponding parts of (a)(3)): when it might come up, there's bigger fish to fry.
For instance, could the June 2015 Charleston church shooter been charged with violations of 248? I imagine he could have been. He was also charged with numerous counts of murder and attempted murder, and related hate-crime and firearm charges, and was incarcerated for life with a potential federal death penalty. (Of course, due to the partisan valence of the death penalty in the US these days, he wasn't executed under Biden, and given his ideological bent and reasons for his atrocity Donald may well have people like Steve Bannon and Stephen Miller in his ear telling him not to sign off on the execution; he wasn't given a sentence of death on the state charges in South Carolina.) Tacking on 248(a)(2) or 248(a)(3) charges would have really not added anything to what he was facing, and not meaningfully extended his sentence, so there was little use pursuing prosecution on such a charge given the gravity of the rest.
So here then is the question: how often is it the case that there are violations of 248(a)(2) that do not further involve other, more serious crimes? Because there are violations of (a)(1) that go no further, but I'm not sure if there are violations of (a)(2) that go no further. (For another example, George Tiller's murderer might well have been in violation of 248(a)(2) or (a)(3), since Tiller was shot at a church while serving as an usher, but the shooter wasn't charged with that offence from what I can see; he faced, and was convicted on, one murder charge and two charges of aggravated assault. But I think he certainly "by force [...] intentionally injure[d] [...] a[] person lawfully exercising [...] the First Amendment right of religious freedom at a place of religious worship", so he could have been, and potentially even charged with such in relation to everyone else at the church that day under the "interfere with" provisions; just that as I noted, there were bigger fish to fry in that case.)
If (a)(2) (or corresponding provisions of (a)(3)) is not being prosecuted despite cases where it is the most serious offence in some act, that is bad, and even people who support (a)(1) but could do without (a)(2) should be mad about that because without (a)(2), there is no (a)(1) in Section 248, as that was the legislative compromise, so any moral force for prosecutions under (a)(1) is lost without prosecutions for comparable acts in violation of (a)(2). But if violations of (a)(2) only arise in the context of other, much more serious offences, then that could explain why (a)(2) does not see any prosecutorial effort; it simply isn't worth the legal time.
This is a fair point! Not knowing the details of the allegations, I can't answer any of your factual questions, but I think you are right that, when a Criminal Event occurs, it is not incumbent on prosecutors to indict and prosecute every single crime committed in that event; it as acceptable and perhaps even preferable to focus on the most serious crimes (that can be proved to a jury). It is facially very plausible that FACE Act violations against abortion clinics are quite different Criminal Events from FACE Act violations against churches, which may explain the discrepancy, if there is a discrepancy, which there may or may not be. (I don't know the facts.)
A (regrettably only somewhat) hypothetical event that it occurs to me could be an (a)(3) violation is something related to what's been happening up here in the Toronto area: theft of Jewish prayer scrolls, twice just in December 2025.
(Also I realised I mixed up (b) and (c) with (a)(2) and (a)(3), and have edited my previous post accordingly.)
I should note that up here, it's been occurring at private residences, not synagogues, so if it were happening in the US it would not engage (a)(3), but it would not at all surprise me if a synagogue in the US were so vandalised in the near future; given that theft and vandalism are far less serious charges than murder, such an event (though I hope it never occurs) would be a much better vehicle for charges under (a)(3)'s provisions related to places of religious worship than something like the 2015 Charleston mass shooting would have been for (a)(2) charges.
Having thought about the legitimacy question, I think there are, from what I've seen, two main arguments on the point, one legal and one moral.
I am assuming for the time being that the relevant sections of the US Code not only authorise but mandate a general manhunt for all deportable aliens; I am not outright conceding the point, but I do not need to contest it for these arguments.
(I am also setting aside arguments about immigration increasing both the supply of and demand for labour, arguments about tax revenue and the ITIN program, and arguments about food security and US citizens and other persons legally present in the US often being unwilling to work agricultural jobs even for decent pay and benefits.)
The main legal argument against what is being done is that while the text of the US Code may authorise or even mandate it, the issuance of a general order of removal sure looks a whole lot like a general writ of assistance. Those were used in pre-Revolutionary America by the British colonial authorities, and proved a sufficient irritant to be one of early factors eventually leading to the Revolutionary War. The memory of them lingered long enough that they led to warrant particularity requirements in many of the colonies and later states, and further to the analogous requirement in the Fourth Amendment, that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." If such an order is in effect a general writ of assistance, it would seem to be prohibited by the Fourth Amendment; even if it is not, many people find that such an order violates the spirit of the Fourth Amendment's particularity requirement (this would be moral illegitimacy, though not the argument I will get to); even if it does not do that, there are still arguments that certain of the tactics used by ICE may violate the Fourth Amendment, whether in letter or spirit. (I am aware of Noem v. Vasquez Perdomo, but of course someone could still feel that the Court got that one wrong and in effect authorised general warrants that would violate the Fourth Amendment, and I have seen that argument.)
There are also related complaints here that the use of the military in certain of these operations violates the Posse Comitatus Act.
So the argument for legal illegitimacy, in brief, is that what is being done and how it is being done violates the Fourth Amendment, with a side argument of moral illegitimacy for violating its spirit even if its letter is not violated.
The moral argument is that in at least some cases of people crossing the US border other than at a legal port of entry, they are fleeing drug-related gang violence and/or crippling economic conditions in Latin America. This, the argument goes, is fueled at least in part by American demand for illicit drugs (related to this are arguments for drug legalisation so that people who are tragically addicted to such substances can get safely produced and tested versions of the substances on which they are unlikely to overdose--say, normal heroin, instead of stuff that might be cut with fentanyl) and so the United States, while it might have a legal right to turn away people fleeing the violence and instability created by drug cartels trafficking such goods, has no moral right to do so. The argument further proceeds that other aspects of Latin America's poor economic conditions were created due to American influence in economic policy, with people pointing particularly to countries like Chile where the dictatorship of Augusto Pinochet (requiescat in pace President Salvador Allende) implemented economic ideas promoted by the likes of Milton Friedman, to disastrous results, and so since the United States was responsible for exporting such policies, and in some cases imposing them antidemocratically, it has no moral right to turn away people seeking to escape the consequences of those policies.
So the brief argument for moral illegitimacy is that the US has no moral right to turn away victims of its own policies. (Of course, in this case, you will rightly point out that appeal to higher unwritten law does not absolve someone of an obligation to follow valid written law, and to accept the consequences of violating the latter, which may well be missing among many of the protesters against the actions of ICE.)
Does any of this actually hold water, whether legally or morally? That is for the law, and for each person's conscience. But it might explain why someone could perform or even demand civil disobedience while still claiming to act in defence of the law, because they are appealing to a higher law (be that the US Constitution, or a moral mandate coming from the dictates of one's own conscience).
This was a very interesting piece to read through, and you're spot on regarding the 'vibe' of my circle here in the dark blue haven of SW Minneapolis. There were multiple points while reading where I clicked the share button ready to send this along to others but each time I stopped myself short... This both seems like good, high-quality, accurate information as well as something I don't want to be the initial voice of.
By burying 'this is in fact bad' deep in the article, and making your headline and main argument about how it isn't *that* bad, I think you might be defending this application of the law in ways that it doesn't deserve.
You describe immigration law as if it mandates the deportation of everyone who is in the United States without legal permission, with discretion on whom to prioritize. This means previous presidents haven't seen to the law faithfully, and Trump is. But that's not the plain text of the law, as far as I can see. I've linked below. INA 237 and INA 238 are the most relevant parts.
The law renders many statuses deportable, by order of the Attorney General, but only mandates that the AG shall pursue deportation for a much narrower band--basically, criminals. The purpose of the law, from the text, is not to establish a manhunt, even low-priority, for everyone without legal immigration status, but rather to make it so that if someone crosses the border and then creates a problem, the USA can send them back so that this problem is someone else's.
This means that pursuing deportation for everyone deportable is within the legal authority of the executive branch, but so is declining to deport everyone who is deportable unless they break some other law--and the plain text implies something closer to the the latter approach than the former.
Perhaps I am looking at a different part of the law from you (tbh I don't understand your reading of the "narrower band" at all), but I *think* you're reading a mandatory duty as a discretionary duty in 8 USC 1227(a).
The first sentence of that section tells you two things. First, it tells us *what must happen*:
> Any alien (including an alien crewman) in and admitted to the United States shall... be removed if the alien is within one or more of the following classes of deportable aliens.
"Shall" is mandatory. When Congress wants something to happen, it generally says it "shall" happen. (Otherwise, it usually says "may.") The executive branch has a positive duty laid upon it by Congress to remove all deportable aliens, period.
However, since it is laying a duty on the government, the statute also needs to tell us *who must do it*: "...upon the order of the Attorney General..." So, for executive branch purposes, it is the job of the Attorney General to identify deportable aliens and order their deportation. But he doesn't get to decide who gets sent back based on who is "creating a problem." Congress made that decision; the problem is their unlawful presence. If the A.G. isn't doing removing them for that (at least without some extenuating circumstance), he is failing his own oath to "faithfully discharge the duties of his office" and preventing the President from fulfilling his own oath to "take care that the laws be faithfully executed."
So -- assuming I am looking at the same parts of 1227 and 1228 as you are -- I think you're mistaken: the clear meaning of this text is that it *does* establish a manhunt for every person not legally present in the country. Although I think the text speaks for itself, it is reinforced by other features of the law, such as parole, where Congress has allowed the executive branch to allow *some* deportable aliens to remain indefinitely, within strictly defined limits (which Congress has deliberately tightened over the years). If the A.G. already had the discretionary power to allow (nearly) *all* deportable aliens to remain indefinitely, this would not be needed (and the limits placed on parole would be inoperative). To the extent that legislative history is probative for legal meaning, it seems clear enough historically that Congress certainly *though* it was ordering the removal of the people classified here.
Now, to climb down from this tree a *little* bit, the reality is that the executive branch has many laws to enforce and inadequate resources to enforce them all. (Congress loves unfunded mandates.) Immigration removals also involve foreign affairs, sometimes making removal difficult. As a result, the executive branch necessarily exercises discretion about how to prioritize enforcement. Moreover, judicial review over immigration enforcement (or non-enforcement) is very limited, and cannot readily discern the difference between "not enforcing the law because we can't" versus "not enforcing the law because we don't agree with the law."
So I'm not saying that Biden, Obama, and to some extent Bush II should have been sued and punished for their open refusal to enforce immigration law. In the final analysis, the "take care" close is mostly up to Congress and the voters to enforce (God help us). But it was unlawful, and, I think, impeachable in at least the post-2010 cases, due to the blatant contempt for the law and elaborate attempts to maneuver around it. (Not that we have an effective impeachment mechanism.)
If I've persuaded you that removal is mandatory, then I hope it also falls into place why I (who am very concerned about legitimacy crisis and civil war) think the "massive resistance" campaign against it is alarming.
The sentence we're both reading, when not disassembled, reads:
"Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:"
If you take out "upon the order of the Attorney General," as you do, then it would read as you say. That's a strange and selective place to insert dots of ellipsis! You then read the elided phrase separately to make the AG responsible for executing what you've constructed as a mandate.
But reading this sentence normally describes something as happening when the AG orders it, which she may or may not do.
For contrast, read 1228:
"The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense..."
"... the Attorney General shall provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof, in the case of any alien convicted of an aggravated felony..."
These are imperatives! These sections are right next to each other, sequentially. Why would 1228, concerning felons, clearly spell out that the AG shall do this and that, and 1227 phrase that deportation shall happen upon the order of the AG, if this difference were not meaningful? Throughout, the lexical choice is "deportable" or "removable," describing something that the United States *can* do, an option available to it.
Congress carving out exceptions to deportability, then narrowing or broadening them, doesn't change that. Criteria XYZ make a person deportable, with proceedings upon order of AG. Deportability plus a felony (or some other things) means the AG *shall* deport them.
Either way, the ordering of mass deportations is within what the law *can* do, so the question you ask about mass resistance depends either on reading the implementation as illegal or on arguing for civil disobedience for unjust laws. But I'm not making either argument here. You're saying that the law does mandate a manhunt on every undocumented immigrant, making Trump's interpretation of the law necessary until the law can change, and that's just not what I'm seeing in the English.
I put ellipses in simply to show the separate clauses of the sentence and their different functions. The predicate is "shall be removed". The prepositional phrase simply modifies the predicate by telling us how the removal is to be effected. You can put the prepositional phrase where it is, or just after removed, or at the end of the sentence, and it bears the same meaning; in no case does it make the order discretionary.
Now that you've expanded your explanation, I can see where you're coming from. Your interpretation of "upon" as creating a condition for removal is not grammatically excluded, nor is your further interpretation that this condition is entirely left to the A.G.'s discretion. But I don't think it's at all the best reading of the text.
As far as I know, your reading is completely novel. Are you aware of anyone who has adopted this reading of 1227 before 2025? The text controls, of course, even if nobody notices what the text says, but nobody noticing what the text says for a very long time seems probative.
Now, in Johns v. Department of Justice of U.S. (Fifth Circuit, 653 F.2d 884; 1981), the Court stated (as a premise): "Aliens who are determined to be deportable, “shall be deported” upon the order of the Attorney General. His responsibility in this regard is akin to his responsibility for enforcing the criminal laws: in both situations, he has discretion to refrain from instituting proceedings even though grounds for their commencement may exist." It seems to me that this confirms my view: the A.G. has prosecutorial discretion to refrain from instituting proceedings in particular cases, just as in criminal law, but a general obligation is nevertheless laid upon him, just as in criminal law.
For example, Congress made insider trading illegal. That establishes, as you put it, a manhunt against all insider traders. In any particular case, the A.G. may decline to prosecute. Nobody can compel him to. But, in general, he has a *duty* to prosecute and would be breaking his oath if he, in general, stopped prosecuting all insider traders. (Courts PROBABLY could not compel him, although see U.S. v. Texas (2015) for a site of intense controversy over whether executive discretion can become *so* systematic and abusive that the judiciary must step in.) If he or the President ordered that large classes of insider traders not be prosecuted on the theory that Congress has only made insider traders prosecutable rather than criminal, I would call him an oathbreaker. If a future president then robustly enforced the insider trading laws, I would call it a threat to the rule of law if a large body of people tried to prevent admitted insider traders from facing justice.
I suspect the slight difference in wording between 1227 and 1228 is because the sections were drafted and enacted 36 years apart. There are certainly contexts where very different wordings in close proximity to one another indicate a meaning, but these wordings aren't meaningfully different, I think.
You're right that Congress carving out exceptions to deportability (so that a given alien becomes non-deportable) doesn't matter, but I'm talking about cases where Congress explicitly provided *discretion* to the A.G. to not deport people that Congress *has* designated as deportable. I mentioned parole already, but a clearer example is cancellation of removal (1229b(a)). Here, Congress grants the A.G. authority to, at his discretion, *not* deport a deportable alien under certain conditions. But if, as you argue, the A.G. already has this discretion, this section doesn't do anything, and the conditions are inoperative! Or, again in 1227(a)(i)(H), the A.G. is given the discretion to waive removal in certain specific cases involving fraud causing inadmissibility for family members and domestic-abuse cases... but, on your reading, he already has that discretion, for *all* non-felony cases, so what would be the point of this clause?
For these reasons, I think that, while your view is not excluded by grammar, my view is grammatically stronger and better supported by structure, history, legislative purpose (if you go in for purpose). It's hard to imagine a court case that might be able to test this (the facts of the cases I did find are *nuts*), but I *think* if you tried to make the argument at SCOTUS that the A.G. has *no duty* to remove deportable aliens, and can therefore generally refuse to remove them -- not because of resource constraints or foreign affairs constraints but just because he has no duty to do that -- you would lose 9-0.
(Of course, that's easy for me to say when there's exceedingly little chance of an actual case testing it.)
Original to 2025? Quite the contrary, it looks to me like most everyone, Democrat and Republican, read the text with its most literal meanings ("deportable" meaning someone who can be deported, not who must be) until relatively recently. And unintentionally, you've made an argument for that! The enforcement you describe for decades under multiple administrations all makes sense if they read the clearest face value of the text as Daniel and I do.
The law was passed in '52, when the internet and digital records didn't exist. Social security numbers had only existed for 16 years, and a lot of people didn't have them. The level of surveillance state required to enforce the law in active pursuit of every potentially removable person would have been absolutely insane, even if we assumed infinite resources--which implies that Congress did not have that in mind. It's not as if there were an era just after the law's passing when it was enforced with Trump's aggression, and later presidents let it go. If the current administration is the first one to enforce the text "correctly," after almost 75 years, maybe history is correct and not Trump.
We don't need to read against the text for this. "Upon the order of the Attorney General," goes the vital phrase. "Upon" is a conditional--it means "after" or "triggered by." If Congress were just outlining who's responsible, it could have used language like it does elsewhere throughout the document to do so. A mandate or a simple indication of responsibility isn't what "upon" means. Also, while location of modifiers and clauses might not matter much in languages with more declensions, English communicates a massive amount through syntax. By location and denotation of that phrase, there's a mandatory effect of a discretionary order.
This appears taken as a given in any pre-Trump legal decisions I've looked at so far. In Arizona v United States (2012) we have SCOTUS saying, "Removal is a civil, not criminal, matter... Discretion in the enforcement of immigration law embraces immediate human concerns... The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service." That's clearly not just 'we're going after the worst people first,' that's 'we're seeing these factors and opting not to order removal.'
The language in that '81 case suggests that removabilty should be understood in ways parallel to criminal prosecution, but also, not even criminal law is always built to call for prosecution of everyone who could be prosecuted, resources aside. Obstruction of justice, for example, is usually only prosecuted when there's an underlying crime and/or a bigger fish to fry up the chain. For the prosecution of any law, you usually look at the history of prosecution, as this often tells you something about what the law is *for.*
You mention the idea of purpose in text. I absolutely go for purpose in text, distinct from fishing for intentions in authors' heads. Enforcement along Trump's lines implies a purpose of maintaining purity of the blood. For all the racism of 1950s America, I do not believe this was Congress' purpose with this law. I'll return to the premise that the purpose of the law as written is to oust deportable aliens when they surface as a problem to the federal government, usually by committing some other crime. This is strongly implied over and over by the salience of the criterion of having committed a felony or not.
That brings us to your idea that the AG could decline to order *any* removals other than those mandated by the next section. While technically possible under the letter, this probably would exceed the reasonable boundaries of discretion for good faith enforcement--*but so does active pursuit of everyone who could be removed.* The latter is a greater violation of the law's purpose, I would argue, and it's a reality that we are facing, whereas your counter position of not removing anybody isn't a real historical position of any administration. The Biden administration was one of exceptional unnecessary cruelty toward immigrants, and it's only the willful cruelty of Trumpism that makes anything else appear decent in contrast.
Regarding 1229b(a), cancellation of removal is a bit stronger than deferral or temporary waiver. It implies that individuals whose removal is *canceled* need not fear removal as long as they continue to fit those criteria, which is stronger than 'we just haven't issued a removal order yet,' but does not go so far as the next section, which alters status to no longer be removable if administration priorities change.
The waivers in 1227(a)(i)(H) are not redundant because of where they fit in the process. (This might apply to 1229b(a) too.) Orders of removal begin with the AG, whereas the waivers allows an immigration judge acting under general directives of the AG to waive a removal once ordered. Discretionary enforcement paired with specific safe harbors. That all sounds operative to me!
All of these legal conditions revolve around the correct idea that deportation *is a big deal.* It is a massive imposition on individual liberty, more so than many criminal penalties. It is a big deal for a federal government to label a person as removable, and a big deal actually to remove them. The law correctly already has discretion built in. There might be legislative change needed in immigration law, especially around how legal entry works so that we don't wind up with so many legally removable people to begin with, but we don't need to change the removal law for humanitarian discretion to figure into its enforcement.
From where I sit, this interpretation seems like plain language. But I'm no expert in this at all, and my time to pursue this argument is limited, so it's possible I'm completely wrong. The more I Google, though, the more I think I'm right on this one.
EDIT: On another point, even if two laws were written decades apart, a difference in wording is still meaningful. The later legislature could have chosen to mimic the wording of the earlier law, or make a coordinating amendment to the earlier law to match the wording of the new one (or repeal it fully and enact its own version to go along with the new law). Choosing not to do so, and thus having different wording in different laws is, while not something that dispositively implies different meaning, at least indicative that inferring different meaning is reasonable.
Indeed there was! To phrase that more clearly, it's not as if the law were enforced at first as if it created a mandate to deport all deportable persons, even if Trumpism is not the first time it has been deployed in ugly and racist ways that also affected legal immigrants and citizens.
Completely irrelevant (to this discussion) side note while I'm parsing the statute for myself: 1227(a)(2)(A)(vi) expressly provides that the preceding sections (aside from failing to register as a sex offender) shall not apply if a pardon has been granted, specifically requiring that for state offences the pardon be granted "by the Governor of any of the several States." Notably, it does not say "executive authority" as some other statutes do, which might imply that US federal law expects that states will not adopt a system akin to Pennsylvania's original executive council model (though a ceremonial head of state styled the Governor with de facto executive authority exercised by the legislatively accountable Cabinet, giving conventionally binding advice to the Governor, that is, the model of a parliamentary republic, might be permissible; Australia's state-level viceroys use the title "Governor", and similarly for the analogous position in Indian states). I wonder if this is a permissible exercise of the "Republican Form of Government" section of the Guarantee Clause.
To the point itself: I think this entire question turns on the proper interpretation of the placement of the intervening clause here: "shall, upon the order of the Attorney General, be removed". I think there is no question that anyone who enters without going through proper border procedures at a legal point of entry falls into the class of deportable aliens; (a)(1)(B) is clear on that point ("Any alien who is present in the United States in violation of this chapter or any other law of the United States"). But I think it is a plausible reading of the initial clause that it does not compel the Attorney General to issue such an order, but rather compels the executive to ensure the removal of a deportable alien upon such an order issuing. It does not necessarily say that the Attorney General shall issue an order; it says that the alien shall be removed once the order is issued.
Other laws, and legislative history, may indicate against this reading; mine has not been as exhaustive as yours. But on its face it does not appear to me that 1227 compels the Attorney General to issue such orders.
re: "You cannot object to the Trump Administration on rule-of-law grounds and broadly oppose ICE enforcing the rule of law."
...except you obviously can: if (with all due emphasis on the *if*) you accept the premise that the law itself is unjust, at least in relevant part, and/or if the just aims of the law are being enforced by unjust means. I think the main reason your argument is failing to convince people is because you are not addressing the deeper moral claims; laboring to argue "well it's just what the law says" or "these certain parts are imprudent or illegal, but the law's the law" with people who fundamentally align much more with a claim like "an unjust law is no law at all".
Do you think this is failing to convince people? I've been rather pleased by the reaction, myself, at least from what I've seen here. Someone reacting to this by saying, "oh! I didn't realize the extent to which ICE is following the law, so we need to change the law right away!" is a complete success for what I set out to accomplish.
You're right that, when I claimed you "cannot" object to Trump on rule-of-law grounds while also objecting to ICE enforcing the law, my "cannot" was too strong.
I do think this piece refutes the common, facile case made by, e.g., Mayor Frey: that Trump is acting like a dictator / violating the Fourth Amendment / outside the rule of law / that ICE is acting without legal warrant / against the will of the People. This narrative both oversells ICE's alleged wrongs against the law and *drastically* undersells the conflict between its own supporters and the written rule of law. I think I showed here that that narrative is false. That was my chief goal.
You can make a different argument about U.S. immigration law being *unjust*, but it's *much* more complex. You first have to make the case that current law is, in some way, unjust. Then you (ordinarily) must present some alternative that *is* just while also permitting the U.S. to accomplish its morally legitimate policy goals without undue costs. Then you must sketch out some implementation principles for how a good citizen ought to regard facially valid but unjust laws. "An unjust law is no law at all" is a great slogan, with a fantastic pedigree, and I agree with it, but it requires a great deal of elaboration and careful distinction. The devil is in the details -- literally. ("And when the devil turned round on you, where would you hide, Roper?")
Finally, having shown that U.S. immigration law is unjust, that it can be remedied, and that unjust laws can be disobeyed or disregarded in at least some cases in at least some ways, you come to the hard part: showing why Donald Turmp's own conflicts with the written rule of law aren't *also* unjust laws that *he* is right to ignore.
This step may include convincing a Trump supporter that you aren't just saying, "It's a crisis when Republicans break the law but it's actually *good* when Democrats break the law". That's particularly hard after 2021-2024, since the administration at the time was known to sometimes follow that rule exactly. Of course, that last part doesn't make the argument any theoretically harder, but it sure does make it rhetorically harder.
All told, I think this is a tough argument. Most people are not capable of making it. (You are one of those I think probably is capable of making it.) Thus, most people aren't making it; they're defaulting instead to a false argument where they are on the side of the Constitution, when, in fact, they are taking William Lloyd Garrison's side. (WLG is my favorite or second-favorite abolitionist, so I don't mind people taking his side, but it's a fraught position and those who take it should consider fully the implications.)
On a potentially related note, juries have been, at least in some cases, refusing to convict, or grand juries refusing to approve indictments against, people who interfere with ICE and other such operations:
Juries are, of course, permitted to return verdicts (or refuse indictments) contrary to law, so this is a look at how the public at large views some of the actions of the current administration.
Yes, deportation is messy and would b e so even if properly dine, with all due process of law.. But I have seen enough reporting on other cases, not just in Minnesota, to believe that ICE and CBP is being capricious, cruel and lawless enough, not to warrant the benefit of the doubt that I might otherwise be willing to grant -- especially when accompanied by pretty obviously racist remarks from Trump and his administration.
As is frequent, it's time for me to make a post talking about nothing in the article other than a pedantic observation on one minor portion!
In regards to this statement:
"If you don't like that, I understand! I am the great-great-grandson of an immigrant, the superb Kate Durkin. She was considered very undesirable (because Irish), but she was admitted anyway because, in the 19th century, the United States had open borders. Anyone who wanted to come here could come here! I am here because of that generous policy!"
You don't specify the year when this happened, though in a footnote you say it was "nearly 150 years ago". 150 years ago when you posted this would have been 1875, and since it was NEARLY 150 years ago, it would have been 1876 at the earliest. But the United States did not have open borders at that point.
There are two points commonly pointed to as the end of open borders in the United States. The first is 1808, when the importation of slaves was banned. Whether this counts is arguable, and in any event your statement of "anyone who wanted to come here could come here" would not be frustrated because the slaves clearly weren't coming here because they wanted to. But if we do not count that, then we come to the Page Act in 1875, which restricted Asian immigration. This is prior to 1876.
Actually, immigration restrictions started earlier than the Page Act--various states had implemented restrictions, as explained in this article:
The Page Act was, however, the first FEDERAL act restricting immigration of those who come here, and meant an end to open borders nationwide. As the Page Act was about Asian immigration, your ancestors would have been unaffected by it. But, it still was an end of open borders federally. The Immigration Act of 1882 did put some restrictions on people from all countries, so they could have possibly been affected by those... but it's not clear from your statement whether your ancestors came here before or after that (143 years could still be considered "nearly 150").
So if your ancestors did come here less than 150 years ago, it was at a time when it was no longer the case that "anyone who wanted to come here could come here."
On the other hand, as you say in the footnote related to my above quote, the damage may well already be done, because the message the rest of the world (and especially ostensible US allies) have taken away from this year is that we have to assume that America is MAGA, not because MAGA will always be in charge there, but because MAGA has proven that they are a powerful enough political force to put someone in charge who can then implement such policies and rip up the US's international understandings and shred its goodwill (if any can be rebuilt at this point) to tatters. (How soon do you think Canadians or Danes are going to trust the US again after the incessant threats of war over the past year?)
And that means that “we will never fucking trust you again.” (And by extension, why would we want to lift a finger to help a slumping US economy?)
Not much. The temperature today feels to me like it's higher than the day George Floyd was shot. Of course, it's winter and we aren't just coming out of covid lockdowns, so there's probably less riotin' energy. But I expect an unhappily exciting week ahead.
Ultimately, I hope justice is done (whatever that ends up meaning when the case is investigated) and offer prayers for the family.
So much of what went sideways during the GF riot had to do with the temperature being (literally) too hot and everyone being locked inside for ages and ages. But I am definitely more afraid of the MN National Guard and the feds getting into it and pulling us all into an insane conflict.
Pile on what I've been reading about the daycare scandals, Tim Walz making himself a lame duck because of it, and pressures from the federal administration related to said scandals, and I have to imagine Minnesota, and especially the Twin Cities, is a powderkeg waiting to blow.
One day of good weather might be all it takes for everything to explode.
I'm putting this here so as not to clutter the comments on your article about the tragic deaths of Ms. Babbitt and Ms. Good.
One thing I do wonder when it comes to legitimacy crises is the extent to which each political actor (and in this I include the public at large, and ideological factions therein) bears responsibility for maintaining legitimacy, or for its breakdown.
For instance, in the instant case, there is of course the faction which insists that current US immigration law is morally illegitimate (but will not accept the legal consequences of attempting to impede its enforcement purely on moral grounds, which Dr. King noted has to be done in order to expose the moral injustice of the law).
But there are also factions which consider the law, or its enforcement, legally illegitimate. For instance, as Drea argued in this comment section, one could well concede that governments have a right to ensure that anyone within their borders is there legally, while also holding that the current operation is not what was envisioned by the legislature in enacting the laws in question. As I noted, one could instead say that the laws in question, or at least the current method of enforcement, does not comport with the Fourth Amendment and its requirement for particularized warrants (which was a factor in the American Revolution).
Another faction might consider the videos of Ms. Good's death and conclude that she was still within the bounds of the First Amendment's "peaceably to assemble" guarantee, and therefore her shooting rendered the operation illegitimate; yet another might say that the deportation of a legal citizen, Emanuelly Borges Santos, rendered the whole enforcement scheme illegitimate (because in this view any immigration enforcement which removes legal citizens cannot be legitimate).
At what point, in other words, does it cease to be the responsibility of the people at large, or factions thereof, to accept the legitimacy of government action as a given, and does it become the responsibility of government to operate within the bounds of the law as the people at large (whether now or at the time of its enactment, and Drea gave history on this) understand it, and not necessarily just in whatever interpretation it cares to espouse even if the people do not accept that interpretation? Or must the people always accede to any interpretation of the law which the government espouses?
(To draw in another topic entirely, if you read the article I linked about the origins of the appropriations origination power in the UK over on your article about the Origination Clause, this seems to have some similarities in that part of what drove Parliament to take a greater hand in the legislative process is that the Commons and the Lords exchanged taxes for laws redressing their grievances, then left, only to find that when the laws were published, what was written by the King and his ministers bore little resemblance to what had been agreed to at Parliament, so to stave off a legitimacy crisis resulting from the discrepancy between intent and language, Parliament began to insist that it approve the language of the laws that the King would enforce in exchange for the gift of tax moneys from the Commons and the Lords to the King; the legitimacy crisis that led to the English Civil War, I think, came later when the King attempted to levy taxes without the consent of Parliament, as I believe that by then the collection of approved taxes was handled by the executive since taxes and spending were mandated by law, so the King thought he could get away with using the taxation infrastructure without Parliament's assent. EDIT: So here I would argue that the government was responsible for the legitimacy crises, because in the early days of Parliament the executive was promulgating laws that weren't actually redressing the grievances of the people, and later with the English Civil War the executive was attempting to impose taxes without the consent of the people.)
This is a good question. Here are my thoughts, such as they are.
One reliable answer to this is to evaluate the legal claims on either side and award legitimacy to the side with the better arguments. The problem, of course, is that legitimacy crises arise precisely when large portions of the people evaluate the legal claims and reach different conclusions. (Sidebar: In your presentation of the question, this is framed as "the people" versus "the government," but the government very rarely survives when the people unequivocally deem it illegitimate. True legitimacy crisis pits different factions of the people against each other.) This can happen for a range of reasons, ranging from genuinely irresolvable legal ambiguities to mass propaganda campaigns packed with lies. (The latter becomes more common as civil war approaches, as you can see on both sides in America today.) But, whatever the cause, once you have people with very different views of what the law is, it becomes much more difficult to convincingly appeal to the other camp with legal arguments.
That's probably not an excuse to stop trying. For example, in the instant case, I think the case that ICE is acting (for the most part) with legal legitimacy is rational and correct. I think Drea's view is wrong, that it can be shown to be wrong, and (perhaps worse for it) that it is not even shared by most people on the anti-ICE side of this legitimacy crisis. I will keep making this case where it is prudent and practical to do so.
However, in true legitimacy crises, this reaches a point of diminishing returns. Whether you are a supporter of the government or a dissenter, you have to accept the reality that there's a great many people who sincerely reject your understanding of legitimate law, and then make a decision: should you impose your view of the law on your opponents anyway? Should you do this knowing full well that the cost of imposition will be unrest, instability, and possibly violence? (Is that a fair restatement of your original question?)
This is a question *both* the government and the dissenters have to ask. The Patriots were at least as responsible for the legitimacy crisis surrounding the American Revolution -- and the violence that followed -- as the Crown. (Alas, neither is usually inclined to ask it. The government automatically enforces the law as it sees fit and the dissenters are operating in a stable world built by that government and don't recognize when they start attacking load-bearing pillars.)
This answer probably cannot be answered *entirely* within the framework of the law, because that's precisely the framework that has failed to get us here. I suspect there is no entirely values-neutral answer to it at all.
As for the instant case, I think it would be colossally stupid for either side to immolate the American order over immigration. I'll continue to make the case that ICE's current approach is a legally legitimate approach -- to a considerable extent *required* by current American law -- but, if you made me President, yes I would follow the law as I see it, but my attitude about it would be night-and-day different. Put me in Congress, and I would push for reforms to our immigration law. I would not cling to a hardline interpretation seemingly custom-built to rip the country apart. It's not worth it. The costs are not worth the benefits (and the benefits of current U.S. immigration law are empirically dubious anyway). I would hope that the other side would see it the same way, and refrain from what increasingly looks and operates like an incipient insurrection against a very longstanding government function... but it's clear that, for various reasons, some significant portion of them are prepared to go there, come what may.
I wouldn't always look to conciliate in every legitimacy crisis, because some hills are worth dying on. Slavery was one. But, on the other hand, look how hard Lincoln worked to conciliate before the guns started firing! There is clearly some moral responsibility on the part of *even the legitimate force* to try to make accommodations to the illegitimate force for the good of the polity. But how to draw those lines outside the values-neutral framework of the law is a task too difficult for a Substack combox.
You are correct that I misframed the conflict; it is often "the dissenters among the people" against "the executive and its supporters among the people". I was incorrectly reducing the former and eliding a key part of the latter.
I agree that a lot of people on the hardline anti-ICE side do not object on legal grounds, but rather on moral grounds, and more broadly on immigration law (or, from some of what I've seen, the existence of national borders and assertions of government sovereignty at all) generally rather than on the specifics of the statutes in question, and then as I said insist that they not face the legal punishment (that said, given where many ICE operations are taking place, it is possible that in some cases they will get away with it, because of jury nullification). I suspect that, if one were to get them to set aside the moral and ideological objections, a lot of them might, if walked through your legal and historical analysis, and through Drea's, agree with the latter (to a great extent, of course, this is probably because Drea's aligns with their moral intuitions!). If it is not shared by many on the anti-ICE side, this may not be because they take a different interpretation of the law; it is possibly instead because they are basing their decisions on a framework that does not take into account a legal analysis and therefore decline, or see no need, to make one. (This stands in contrast to Dr. King, who made the legal analysis, conceded that his opponents were generally legally correct on the statutes, and expressly noted that he called into question the legitimacy of the law primarily on moral grounds, with his legal objections generally being that the statutes in question were enacted by legislatures elected contrary to his interpretation of the 14th and 15th amendments.) This may also be a consequence of the present media environment; even a concise legal analysis can't fit on a protest sign, or will be read by anyone other than wonks if made in a social media or blog post, whereas it's easy, and much more visceral, to make a sign reading something like "NO GESTAPO NO ISSE" (likely with thunderbolts in place of the SS at least) with a big red X through a Nazi swastika. Hence the main objections of the dissenters, in the public consciousness, are the moral ones, not the legal ones. (For that matter, to the otherwise uninterested public, it may well be easier for the dissenters to make the economic case than the legal one, because people see their grocery bills regularly but do not often consciously interact with the law.)
I was going to bring up the American Revolution as an example of a civil war, primarily over the question of taxation (and others, like rights for Catholics) but you already did that; I would add that many of the supporters of the Crown, at least to the extent that they wished to continue living under British rule, fled to the Canadian colonies. As noted in this US military publication from 1946 (https://www.historians.org/resource/gi-roundtable-47-canada-our-oldest-good-neighbor-1946/; out of date in many ways, but not, I think, the history), many of the loyalists had been among the intellectual elite of the rebellious colonies:
"These Loyalists were generally people of superior education and social standing—judges, lawyers, doctors, and business leaders. It has been said that a list of them reacts [sic] like an honor roll of Harvard graduates of that time. Ever since the Dominion was formed, the Maritimes have contributed much more than their numerical proportion of its prominent citizens, particularly in the professions."
(It is also worth observing that the American Revolution, viewed as a civil war, was perhaps odd in that other areas, or at least other people, legally subject to the same sovereignty tried to remain militarily neutral. Nova Scotians, for instance, had preferred neutrality, only to be drawn into the war in defence of their homes when the rebels attacked Halifax in an attempt to deny the port to British forces. This is the background of the song "Barrett's Privateers". Also, what you think this says about intellectual elites may be greatly correlated with how you view the actions and arguments of the dissenters in 1775.)
All in all, I think your restatement of my question is fair; the cost of pressing a claim to a particular interpretation of disputed law (and often this is on moral, rather than strictly legal, grounds*) is often, in extremis, instability and blood, and all parties must consider whether the upheaval is worth the possibility of victory. (Sometimes, it should be noted, the victory is remote; for instance, the rebellions of 1837 and 1838 in Lower and Upper Canada were swiftly crushed as a military matter, but spooked the British sufficiently that they sent Lord Durham to investigate the underlying causes, and over time implemented his suggestions for peaceful reform, much of which was what the moderate reformers wanted all along, but couldn't get the British to listen to until after the violence, and so in that sense the rebellions succeeded. The suffragette terrorism campaign in the United Kingdom in the early 1910s is another example; it ceased with the outbreak of the Great War, and the violence to my knowledge did not resume afterward, but the threat remained and the moderates' reforms were eventually enacted, and so in that sense the self-described terrorists won.)
*To quote Lord Acton:
The primitive fathers of the United States began by preferring abstract moral principle to the letter of the law and the spirit of the Constitution. But they went farther. Not only was their grievance difficult to substantiate at law, but it was trivial in extent. The claim of England was not evidently disproved, and even if it was unjust, the injustice practically was not hard to bear. The suffering that would be caused by submission was immeasurably less than the suffering that must follow resistance, and it was more uncertain and remote. The utilitarian argument was loud in favour of obedience and loyalty. ... "The amount of taxes proposed to be raised," said Marshall, the greatest of constitutional lawyers, "was too inconsiderable to interest the people of either country." ... The object of these men was liberty, not independence. ... both Jefferson and Madison admitted in the presence of the English minister that a few seats in both Houses would have set at rest the whole question.
I do agree that after a certain point in a legitimacy crisis (and I think that this crisis has been slowly building for decades in many ways, with perhaps an underappreciated part being a growing attitude of "laws that operate to my material detriment are inherently illegitimate" among many segments of society; see, for instance, the evisceration of antitrust law, or the rise of Uber and Airbnb) there is no longer a values-neutral answer, and that one's values determine how one ends up aligning in the crisis.
Hume's guillotine ever falls, and his admonition reminds us that reason can only tell us how to get what our passions tell us to value; it cannot itself tell us what to value.
It is, however, possible that prosecutors only laid charges more serious than they could actually prove, and the defendant might have been found guilty on less serious charges. (If you want to look at the court documents, the case was heard in the Western District of Washington, probably something like United States v Victor Vivanco-Reyes, I imagine it needs a PACER subscription.)
(I admit to a small amount of confusion, though this may stem from differences in legal systems. I think up here a jury can acquit on the charge laid but convict on a lesser charge; this happened, I think, with Robert Pickton, charged with first-degree murder but convicted of second-degree because the jury did not find that the prosecution had proved premeditation. Perhaps a few crimes like murder are special cases. That said, I can't find the actual charging documents from the case, so perhaps the lesser charges were also laid. The man who murdered Pickton in jail, meanwhile, pled guilty to first-degree murder: https://www.cbc.ca/news/canada/british-columbia/pickton-s-killer-murder-charge-1.7643499 )
Pointing a laser at an aircraft is really, really dangerous on many levels so the fact that this guy walked, if the allegations are in fact true, is amazing. (And probably says quite a bit about how ordinary DC citizens view threats to Donald's life and health, and that of those who associate with him.)
Further on the point of the legitimacy crisis right now, I think what we are seeing is that even if in the instant case the administration is following the law (and I still do not concede that, because I think that there is a case to be made regarding the Fourth Amendment, and a case to be made regarding the deportation of at least one US citizen last year, unless you happen to buy Donald's argument about who actually gets citizenship from the Fourteenth Amendment), it is clear that this administration considers law to be irrelevant if it poses an impediment to their policy goals (and more clear with them than, I think, with previous administrations; if you squint really really hard and come close to breaking your neck by tilting it you can maybe justify programs like DAPA and DACA as a directive on how to allocate limited immigration enforcement resources). So at this point it is, I think, quite reasonable to treat with extreme skepticism any claims made by them that they are following the law.
Nowhere is this clearer, at least from an international perspective, than with the kidnapping of Nicolás Maduro. I have absolutely no love for Maduro, and I hope that in time true democratic governance will be seen in Venezuela. He is an authoritarian. He plainly lost the previous election there and simply fabricated results to claim he won. But his kidnapping was a clear violation of international law*, as pointed out here: https://bsky.app/profile/cristianfarias.com/post/3mbjlwkmb6c24 Even Marine Le Pen observed that the operation goes completely against the professed principles of the nationalist far-right: https://www.spiked-online.com/2026/01/05/marine-le-pen-is-right-about-venezuela/
And it's clear that in this field too Donald sees laws, whether of the United States or of other polities, or customary international law, as entirely optional and that "deals" can override them (even if obtained under extreme duress), or even perhaps just his own policy whims. He's willing to rip up the North Atlantic Treaty completely in order to obtain Greenland, ignoring that Danish law (and by extension EU law) prohibits Denmark from transferring sovereignty over Greenland except in accordance with a specific process, which neither Greenland nor Denmark is willing to undertake. (Precepts of international law provide that Greenland can unilaterally declare independence without Danish consent; however Greenlanders seem at present to be of the view that full independence is not economically viable and that remaining in union with Denmark is preferable to a union with the United States. Nonetheless the preferences of the people of Greenland are also irrelevant to Donald. Even Jordan Bardella has spoken against the possibility of a forcible acquisition of Greenland by the US: https://www.politico.eu/article/france-jordan-bardella-donald-trumps-imperial-ambitions-in-venezuela-greenland/ )
Add to this his stated policy of annexing Canada, and his nominee for ambassador to Iceland's claim that he wants to be the Governor of the 52nd state (nobody in Iceland thinks that's a joke, and it was offensive enough for there to be a public outcry there for the government to reject the diplomatic credentials of William Long should he receive Senate confirmation: https://www.cbc.ca/news/world/us-ambassador-iceland-trump-9.7048349 ), and at this point I personally think that Canada and Denmark (and Iceland) have a better case to raid Washington, DC and kidnap Donald Trump than the US did to raid Caracas: https://substack.com/@dpareja/note/c-195790209 (To be clear, I do not think such a raid would be justified at present, just that it would be less unjustified than the Caracas raid was.) And I think that an immediate response of "that's complete bullshit" is by now extremely reasonable to any legal claims made by this administration, given how it has proven it does not care at all about law, and by extension therefore to consider any interpretation of operative law that would seem to justify the current actions of the administration as potentially flawed.
*As I note, I think there was a case to be made for overthrowing Maduro, which is his threats against Guyanese sovereignty, in a similar vein to how an overthrow of Saddam Hussein could, I think, have been justified in the immediate wake of the liberation of Kuwait. That was, however, not the justification given, nor has Guyana, to my knowledge, requested international assistance in the matter.
EDIT #2: At this point, it seems apparent to me that Donald has the mentality of a toddler who, upon seeing another toddler with a nice toy, screams "MINE! WANT! GIVE!" and tries to grab it, and when he is inevitably either punched by said toddler or pulled away by an actual adult, throws a tantrum. (Of course, this particular toddler has the authority to fire all the adults and instead surrounds himself with other toddlers who are willing to say "Yes Donald that toy should be yours and that other kid is being very very mean to you by not letting you have it.")
EDIT #3 while I'm drawing foreign policy parallels:
"Within the past decade we have been reminded by the hideous example of the fascist states of the evil which befalls a nation when the government sets itself above the law. Beneath the spurious efficiency of such a state, we have perceived the helpless plight of individuals who have been deprived of the primary right of an impartial administration of the law.
"We have seen also the chaos which is brought to world affairs when lawlessness is practised in the field of international relations. The development of an international code of law is still in its early stages. The past decade has done much to delay and distort this growth. I feel sure, however, that we in this country are agreed that the freedom of nations depends upon the rule of law amongst states."
...
"If there is one conclusion that our common experience has led us to accept, it is that security for this country lies in the development of a firm structure of international organization."
"For decades, countries like Canada prospered under what we called the rules-based international order. We joined its institutions, we praised its principles, we benefited from its predictability. And because of that we could pursue values-based foreign policies under its protection.
"We knew the story of the international rules-based order was partially false. That the strongest would exempt themselves when convenient. That trade rules were enforced asymmetrically. And we knew that international law applied with varying rigour depending on the identity of the accused or the victim.
"This fiction was useful. And American hegemony, in particular, helped provide public goods: open sea lanes, a stable financial system, collective security and support for frameworks for resolving disputes."
...
"We know the old order is not coming back. We shouldn't mourn it. Nostalgia is not a strategy."
You wrote that Abrego Garcia was removed illegally without due process and that this did NOT happen with a justification using the Alien Enemies Act.
I wonder then (1) how many other people they're removing without due process without use of the AEA, and (2) You said removals under AEA have mostly ceased, but are they continuing, in 2026, to remove people without due process using justifications other than the AEA, as they did to Abrego Garcia?
To the best of my knowledge, the answer to (1) is "none." They tried removing Abrego Garcia without due process and it blew up in their faces to an impressive extent, poisoning the American people with suspicion and hostility toward all future enforcement actions (justifiably so!). Abrego Garcia himself became a cause celebre, because the threat to everyone in the United States was so obvious. There was no way to hide this, because the failure to accord him due judicial process was nevertheless a matter of judicial record, and judicial records are public!
The deck is stacked against people in deportation hearings in several respects. CBP tries to get them to agree to decline challenges, Congress has designed a process that puts the executive branch rather than the judicial branch very strongly in the driver's seat (and Congress did this deliberately, on a bipartisan basis, because earlier iterations with more judicial involvement became horribly gummed up and unable to cope), and the Supreme Court's 20th-century expansion of the Sixth Amendment right to public defenders to represent indigent defendants has never reached immigration. (I say this without expressing a view as to that expansion.) So I'm definitely not saying that people accused of immigration violations have an easy, comfortable road through the criminal process. They don't. The process is rough. But it's a process, and a constitutionally sufficient process.
But the thing with Garcia, where they flew him out of the country in defiance of a court order before according him that process -- that was nuts, and seemingly has not occurred since the AEA deportation attempts.
(2) To the best of my knowledge, no.
Also, the AEA deportations have, from what I've seen, *completely* stopped (not just mostly stopped). The existing cases are still going through the process, but they're all frozen in federal court and are very likely to remain that way (because it's an abuse of the AEA and the courts know it), but the White House hasn't instituted any new cases that I'm aware of in many months.
Immigration is huge and not traditionally my area, so it's always possible I am missing facts or recent developments, but this is what I understand to be the case right now.
And that's good! A country that practices no-due-process deportations is a country where *everyone* is in danger!
I thank you for the book recommendation and will put it on my list for me!
To be sure, even if they *were* scary criminals, they would still deserve decency and a reasonable hearing! Then the law, if just, ought to be applied.
I do worry that there's a little bit of "Chief Mourner of Marne" Syndrome on all sides of this debate, but I suppose there usually is.
EDIT: Oh, and, of course, Merry Christmas to you as well!
Yes, sorry, I was too obscure there! Scott Alexander once summarized "Marne" for his readers (introducing his seminal "I Can Tolerate Anyone Except the Outgroup"):
> In Chesterton’s The Secret of Father Brown, a beloved nobleman who murdered his good-for-nothing brother in a duel thirty years ago returns to his hometown wracked by guilt. All the townspeople want to forgive him immediately, and they mock the titular priest for only being willing to give a measured forgiveness conditional on penance and self-reflection. They lecture the priest on the virtues of charity and compassion.
> Later, it comes out that the beloved nobleman did not in fact kill his good-for-nothing brother. The good-for-nothing brother killed the beloved nobleman (and stole his identity). Now the townspeople want to see him lynched or burned alive, and it is only the priest who – consistently – offers a measured forgiveness conditional on penance and self-reflection.
> The priest tells them:
>> It seems to me that you only pardon the sins that you don’t really think sinful. You only forgive criminals when they commit what you don’t regard as crimes, but rather as conventions. You forgive a conventional duel just as you forgive a conventional divorce. You forgive because there isn’t anything to be forgiven.
> He further notes that this is why the townspeople can self-righteously consider themselves more compassionate and forgiving than he is. Actual forgiveness, the kind the priest needs to cultivate to forgive evildoers, is really really hard. The fake forgiveness the townspeople use to forgive the people they like is really easy, so they get to boast not only of their forgiving nature, but of how much nicer they are than those mean old priests who find forgiveness difficult and want penance along with it.
> After some thought I agree with Chesterton’s point. There are a lot of people who say “I forgive you” when they mean “No harm done”, and a lot of people who say “That was unforgiveable” when they mean “That was genuinely really bad”. Whether or not forgiveness is right is a complicated topic I do not want to get in here. But since forgiveness is generally considered a virtue, and one that many want credit for having, I think it’s fair to say you only earn the right to call yourself ‘forgiving’ if you forgive things that genuinely hurt you.
> To borrow Chesterton’s example, if you think divorce is a-ok, then you don’t get to “forgive” people their divorces, you merely ignore them. Someone who thinks divorce is abhorrent can “forgive” divorce. You can forgive theft, or murder, or tax evasion, or something *you* find abhorrent.
It seems to me (James) that, in the immigration debate, many people are quick to "forgive" illegal entry becauae they don't actually think it's morally wrong or believe that it causes any harm to anyone (as long as the illegal immigrant is "decent" and not a murderer). Likewise, some on the other side are quick to "forgive" alleged abuses by ICE because they don't actually think it's morally wrong or socially harmful to use brutality/cruelty as a tool of intimidation, and are quite happy to "break a few eggs" if it gets them the "omelet" of lower immigration.
And, yeah, everything about Mr. Trump's Canada policy has been nuts.
Wow! So helpful.
This is thorough and reasonable. My initial reaction is that, having just finished the book "Stasiland" by Funder about the work of the DDR's secret police, I am left feeling as many of the East Germans felt: just because things are legal does not make them right, and being arrested in order to protest what is both legal and immoral is, perhaps, the highest call of a patriot. I'd be interested to read your take on how to approach ICE's actions with a "spirit" of the law hot take. I, obviously, believe that though they may toe the letter, they've trashed the spirit. Anyway. Good read! Merry Christmas!
With all due respect, if you think ICE's actions resemble those of the Stasi, you may also be entitled to compensation from your Misinformation Insurance.
Going further, what exactly is immoral about ICE's actions? Is it how they're going about enforcing immigration law? Or is it that immigration laws in general are immoral? Or is it that US immigration law in particular is immoral?
I did not equate ICE to the Stasi. I equated the actions of citizens under the DDR to those of Americans protesting today. In both situations, people are acting upon a personal recognition that what is legal isn't moral.
Mass detention, family separation, and deportation practices that disregard basic humanitarian consideration are immoral because they violate core principles of Catholic social teaching and natural law.
Detention in degrading conditions, lack of adequate medical care, and coercive enforcement tactics are incompatible with respect for human dignity.
Also, the Church explicitly recognizes the right of persons to migrate when they cannot secure the necessities of life in their homeland (CCC §2241). States can regulate borders, but this authority is morally limited (especially when one state has significantlymore resources). Enforcement must be humane, proportionate, and oriented toward the protection of persons, not just territorial control. When ICE actions prioritize deterrence or punishment over human welfare ("cruelty is the point", they exceed moral limits.
The family is the fundamental unit of society in Catholic teaching (CCC §2207). Practices such as family separation or deportation that knowingly fracture families inflict grave moral harm. The Church consistently teaches that the state may not pursue policy goals by directly undermining family integrity. I could share stories of my students not being able to do homework due to deported family members, but I'm sure you can imagine.
I'm a former theology teacher so I operate within that context. Catholic teaching rejects the idea that legality alone confers moral legitimacy. This is the DDR analogy. A state can act legally and still act unjustly. When ICE enforces laws in ways that foreseeably cause grave harm to persons, ignore due process, or violate basic human rights, Catholics are morally obligated to judge those actions as unjust and, therefore, immoral.
That makes more sense; it is still wrong. For example, incarcerating someone for committing a crime knowingly fractures a family and creates instability within households--is it, therefore, illicit under Catholic teaching as you understand it?
Further, I also question whether the people coming here are unable to obtain the basic necessities of life--that is, food and shelter.
It sounds to me as though you believe that immigration laws are in and of themselves illegitimate, or that you believe that if someone is not probably a malefactor that it is immoral to not let them in. Please forgive me if I find this position to be, in the long-term, detrimental to everything you claim to want to uphold.
Deportation isn't focused on reintegration and doesn't allow for family visits.
The notion that people only have a right to migrate in search of basic rights is silly. For example, I've migrated to Germany, even though I could remain in the US if needed.
I do indeed believe that anyone who is not a bad actor has a right to migrate. I think that's the closest we could get to imitating the Kingdom of Heaven, specifically regarding immigration.
Right, utopianism and a refusal to acknowledge unintended consequences it is then.
That's a lazy response. If we can't articulate how things *should* be, we can't build policy that gets us closer to it.
And I think it's a good thing you were able to migrate to Germany (and some of my friends were able to legally migrate to America), but I don't believe you (or my friends) had a fundamental right to do so.
Good thing there are systems that work properly to facilitate this, demonstrative of the fact that functional immigration with dignity is not an absurd goal.
I am pleased to have presented the law and am grateful it was informative! As you have detected, I have much stronger views on what the law *is* than what the law *should be*. For those who take the view that current law is unjust, one must do as one does with unjust laws: seek to change it. Possibly even engage in civil disobedience against it.
As I said in another comment somewhere around here, in principle, I don't object to civil disobedience, although I might very well disagree about whether it is appropriate in this instance. What got my goat here was so many people performing or demanding civil disobedience *while claiming to act in the name of the law*, which I find very dangerous.
I would certainly like to try, at some point, to squeeze a few thoughts out describing what I think our immigration policies ought to be. I tend to like "people have a right to migrate" as a first principle (my libertarian youth still lives in parts of me!), but I also think the costs for the receiving country are real, mount up faster than immigration liberalizers tend to think, and justify restrictions even on perfectly nice people in lots of contexts. In its attempts to balance this hard problem, I don't think current U.S. law is unjust on its face, but I think it is unjust as applied to certain situations (which have become tragically common).
Good points throughout. And, in my opinion, I would consider many nails being hit by the same hammer. We are living in unprecedented times of exaggerated claims, as well as exaggerated emotions with a hyperfixation of POV footage that only depicts ONE side of the story. Laws are laws, and I will not stand here and let the law be abused.
I mentioned this in my own little reflection on OLG, as someone who has traveled the immigration system, it is a system RIPE FOR ABUSE. It's easy to lie, easy to cheat and very easy to extend things for major gain.
Heck, even the citizenship process was simpler than what many people go through to adopt a child that was born in the U.S.
With all of that being said.
One thing that does stand out, but not for lack of information, but rather because it escapes the concept of "objective" is that it seems like one of the goals of the administration is to use a certain level of fear tactics to affect the people who reside in this country illegally. Which is not a tactic that I disagree with 100%. The REAL ISSUE is that when you use certain tactics, you also affect the people who have been going through the already harsh and invasive immigration process (though easy to break) and add even more fear into their hearts.
I have felt a need to carry my naturalization certificate (a rather inconveniently large piece of paper) in my person for the JUST IN CASE moment. A moment that has not yet come to pass.
Will ICE ever come to my door looking for me? No, 0% chance of that happening.
Will ICE ever come to my children's school looking for my children? No, 0% chance of that happening.
Will ICE ever detain me if I am in at the wrong place at the wrong time?... I want to say 0%, but I honestly have the fear in my heart, so I have to say. The odds are not 0%.
So, congrats Trump admin. You did strike fear into the heart of ONE immigrant turned U.S. Citizen.
Your post is informative and it helps me with my own fear, but I cannot look at the situation and say "Yup, thats never gonna happen to me" Because the system by which I came here seems flawed by designed. Flawed enough (in my opinion) to say "Maybe I made a mistake and I am not sure, but now I am looking over my shoulder".
I agree with Mauricio’s analysis.
I would even go so far as saying that the odds are not 0% that it happens to me. They're lower for me than for you (and I am *sincerely* sorry about that ugly fact), but it's possible for me to imagine myself in the wrong place at the wrong time, caught up in a raid or arrest, don't have my wallet on me (I forget it sometimes) and boom, I'm in the clink. Hopefully just for a few hours but maybe as much as a few days with leg shackles on and limited/no contact with my family.
One of the problems here is scale. With any police enforcement, mistakes are made (and, also, malicious actors create "mistakes"). Let's say that once out of every hundred times the police act, they act against the wrong target, or don't follow the right procedures. (That's a made-up number. I've no idea what the true rate of police error is, and I'm sure it varies a lot.)
If you live in a very small town with 50 residents, where one crime is committed per year, that's great. Once every century, the police are going to make a significant mistake. It's going to be BIG NEWS. People are going to FREAK OUT. It'll be completely unheard of! When it finally happens, not a single person will know a single other person it has ever happened to -- nor to their parents, their grandparents, or their great-grandparents!
On the other hand, if you live in a neighborhood with 500 residents, and one crime is committed in your neighborhood per *day*, you're in more trouble. Once every three months, the police will make a significant error. Over the course of a lifetime, about half the population of your neighborhood will eventually be (falsely) arrested. *Everyone* will know *lots* of people it's happened to. Many people will have had it happen to them.
In these two scenarios, the police remain exactly as skilled and exactly as effective, but the increase in crime in the second scenario *by itself* causes an almost unbelievably large increase in the rate of police errors and false arrests.
That's a problem for us, because there are a heck of a lot of people here in violation of immigration law. In 2024, the federal government prosecutes 62,000 federal criminal cases (18,500 were immigration crimes). If we assume an "oopsie" rate of 1% (again, totally made-up number), we would expect about 620 people, over the course of a year, to be mistakenly arrested, maybe even mistakenly charged, maybe even hurt, for no very good reason. That stinks, but some degree of police error is the cost of having police, and it's about the same number of Americans who die annually from falling out of bed.
However, the current *illegally present* population of the U.S. is estimated between 11 and 14 million. If the U.S. arrested all of them tomorrow, and had a 1% "oopsie" rate, we would expect approximately 120,000 Americans, which is like if the entire population of Billings, Montana were falsely arrested.
This means that any very large-scale operation against very large-scale illegality imposes much, much higher risks on innocents than "normal" police work. People get scared and have some reason to be, because suddenly they are in close proximity to police and being in close proximity to police is more dangerous than being far away from the police.
(And that added cost of enforcement -- a general increase in fear -- is well worth considering when formulating policy, Congress!)
All of this is a long way of saying: yeah, you're right, that's fair. I think there would be fear no matter what, because of the scale of the problem... but, also, Trump is doing nothing to allay the fear, is actually *stoking* the fear it seems, and may be using it as a tool to advance his own ends.
Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.
I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.
Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.
We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country's antireligious laws.
(Dr. Martin Luther King, Jr., "Letter from a Birmingham Jail")
"Someone who says 'I'm against abortion' but says 'I am in favor of the death penalty' is not really pro-life. Someone who says that 'I'm against abortion, but I'm in agreement with the inhuman treatment of immigrants in the United States,' I don't know if that's pro-life."
(the current Pope, admittedly speaking off-the-cuff)
I did originally write a question about Lauren Handy and the FACE Five for this FAQ, but I decided in the end that it was too far off topic and that I could address the problem more succinctly elsewhere.
The gist of it is that I thought what Lauren Handy did (chained herself to an abortion clinic entry) was heroic resistance to a grotesquely unjust law... but, at the same time, it never occurred to me to be mad *at the FBI* for arresting her over it. She was convicted, of course, because she was guilty. The pro-life movement was angry about this, but the only real reason they (we?) came up with was inconsistency: the FACE Act also protects places of worship (a necessary addition to get the bill through Congress), and the accusation was that the Biden Administration was enforcing FACE strictly for abortion clinics and not at all for churches. Fair enough, if true. (I never really dug into it.) But also not a good reason to let Handy walk free!
She was later pardoned. I have very mixed feelings on that. The presidential pardon power exists specifically to allow some deviation from the letter of the law, so that the president may free someone from the unjust and unexpected application of a generally just law. But to pardon someone for the expected application of a generally unjust law? That seems to threaten the foundations of our system. I'm glad she got out, since, in a perfect world, she should never have been in, but not sure I could have or should have done the same if I were in the Oval.
This was a long aside, but my ultimate point was this: I don't really have a problem with people who believe U.S. immigration law is unjust and engage in nonviolent civil disobedience against it. I may even support them at times, and admire their heroic virtues. (Portions of it *are* unjust, probably, I think.) So I think we are on the same page on civil disobedience.
This article was inspired by so many people claiming that ICE is somehow trampling on the Constitution or the law of the land or the separation of powers, when, really, it's *accepting* all those things in this arena for the first time in *years*. Since, as you know, my theory is that civil war is sparked by legitimacy crisis, I become alarmed when a large segment of the public comes to view entirely legitimate actions as illegitimate. If they see it as unjust, that's fine, that's what democratic debate is all about, but seeing it as illegitimate, when it isn't, strikes me as very perilous.
Knowing only what you've said about Handy's case, I would say that, if the Biden administration was in fact only pursuing prosecution of violators of 18 U.S.C. § 248(a)(1) and not 18 U.S.C. § 248(a)(2) ( https://www.law.cornell.edu/uscode/text/18/248 ), then Handy was a victim of injustice: the injustice of ideologically wielded prosecutorial discretion. The law protects both types of facilities; while court resources are admittedly limited so some choice is necessary, prosecutors should not be selecting which prosecutions they pursue on the basis of ideological preference for one part of the law over the other.
So if the claim made about the prosecutorial decisions of the Department of Justice under President Biden is true, then I would submit that it was an unjust application of the law (whether the law itself is just or unjust is another matter). In that sense, pardoning Handy could be viewed as remedying an injustice. (On the other hand, if prosecutions of both (1) and (2) were pursued, with convictions and acquittals being entered on the strength of the evidence and not on the strength of which attorneys got assigned to each--a subtler use of prosecutorial discretion, to put the worse lawyers on the cases you don't mind losing because you're only prosecuting those to say that you're pursuing those as well--then the pardon was an unjust use of the pardon power, because it amounted to a pocket repeal of (1) but not (2) on ideological grounds.)
I brought up Dr. King's words (which may be more powerful in full context: https://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html ) because I think what is happening is that his admonition that one must "willingly accept[] the penalty of imprisonment" (or other penalty) in the course of civil disobedience against unjust law (or, more precisely, a law the protester views as unjust) is being forgotten.
Take January 6, 2021. Obviously, then-President Trump had a legal right to claim that he had not lost the 2020 election. (He was wrong, and he was lying, but he was allowed to say it without penalty so long as it wasn't in sworn testimony.) He had a right to pursue remedies in the courts. (He did not have a right to win those cases, and of course he lost most of them, because his claims were, again, wrong.) His supporters similarly had a right to make the claim (though, again, they too were wrong).
But after the various judicial and administrative remedies had been exhausted, that is when he overstepped: calling supporters to DC, giving the Ellipse speech with "We fight like hell", and then refusing to call in appropriate law enforcement resources to keep the more violent supporters from breaching the Capitol. That is when he broke a law--a law he, personally, considered wrong and unjust (it was not, whatever one might have wished the outcome of that election to be, but that is beside the point here; what matters is that he viewed it as unjust, even if only for cynical and self-interested reasons, just as many people view large swaths of immigration law, or certain of the procedures followed in its enforcement, as unjust even if it might not be), but he broke it nonetheless--and then, for more reasons that you've detailed, refused to accept the penalty (loss of passive suffrage absent Congressional action) and got away with it.
(Of course, Donald was not "expressing the highest respect for law" in the first place because he was in the wrong on the point and he knew it, but after he had done what he did he would have shown respect for the law had he accepted the prescribed penalty for what he had done, and not run for office in 2024. Instead he defied the law, and his supporters demanded that he be allowed to defy the law, "as [did] the rabid segregationist"; Dr. King there is talking specifically about something you bring up in your article, the "massive resistance" campaign in the US southeast following 1954's Brown v. Board of Education.)
Assuming, purely for the sake of discussion, that the allegations of inconsistent prosecution were true, I think you are right that there's a colorable argument for pardoning Handy, because, just as you say, ideologically-driven inconsistent prosecution is an injustice to the prosecuted. ("For my friends: everything! For my enemies: the law.")
However, if the statute of limitations hasn't run out, it seems to me that the even stronger legal move is to just prosecute the others! Then Handy has nothing to complain about (prosecution is now consistent) and the law has been fulfilled. That was what I had in mind when I wrote my previous comment.
If the statute of limitations has run, though, then, yes, I agree with you: if you can't solve the inconsistency with convictions, you ought to solve it with clemency.
I cosign everything you say about King and Trump, and I heartily recommend the Birmingham Jail letter to anyone reading this who hasn't. I thought I knew everything worth knowing about the civil rights movement after several units on it in school, and had often *heard* of the letter, but I found it richly rewarding when I actually sat down to read it.
(And I also think you're right that activists today -- on all sides -- would benefit a great deal from re-reading it, and King's philosophy as a whole. I didn't agree with him on every particular, but he articulated a philosophy of protest that was both noble and effective, and from which we have all drifted somewhat.)
The stronger legal move, if it's possible, would be to prosecute violators of (a)(2), that is true. But court resources are limited (the wheels of justice grind slowly), so even though it might gall those who wish to see the law fulfilled in all particulars arguably the correct use of discretion is to not prosecute except in the most egregious cases, and if Handy's was not, then a pardon may well be correct. (Looking at the US DoJ summary, it appears that federal enforcement has been almost exclusively for (a)(1), including cases under the Bush and Trump administrations: https://www.justice.gov/crt/special-litigation-section-case-summaries#Scott Of course, the law also permits action to be taken at the state level, and I don't know what's been done there. I did find claims made about unequal enforcement but they are from ideologically biased sources and don't appear to cite actual data to back up the claims made: https://rutherford.house.gov/media/press-releases/rutherford-urges-equal-prosecution-under-face-act https://www.justice.gov/media/1386461/dl?inline )
As for the statute of limitations, some digging led to me to 18 U.S.C. § 3282 https://www.law.cornell.edu/uscode/text/18/3282, providing that unless otherwise specified, all non-capital federal crimes cannot be prosecuted if five years have elapsed since the crime was committed. 248 does not appear to provide otherwise, so there is a reasonable argument to be made that the current administration could and should have pursued actions against violators of (a)(2) which the previous administration did not, rather than pardon Handy.
On King, meanwhile, he was of course deeply influenced by Mohandas Gandhi, but what I've also observed is that what both Gandhi and King had was other elements of their protest movements who were very much willing to be violent if they felt it necessary. (King's message to racist white lawmakers, such as President Johnson, was, to an extent, "Meet me where I am or Malcolm X and the Black Panthers will start a race war." Malcolm, in turn, supported the aims of the peaceful protesters like King, Bayard Rustin and John Lewis--the only photograph of King and Malcolm together was taken when both were in DC for hearings on the Civil Rights Act, and reporters manoeuvred them into meeting at all to get the picture--and accepted his role as the "villain" of the movement because he knew that without that pressure much of King's activism would come to naught, though some actions like the Montgomery bus boycott may have worked regardless because they caused economic harm to businesses. Gandhi, similarly, could note to the British colonial authorities that if India wasn't granted its independence peacefully, ideologies such as those espoused by the likes of Subhas Chandra Bose and Savitri Devi Mukherji could well become ascendant instead, leading to a war and potentially a fascist India. Britain had of course recently dealt with a violent independence movement much closer to London, that being in Ireland only decades prior.) His philosophy of protest, and especially his willingness to accept the legal consequences of his actions in protesting, was noble; I would dispute that it was on its own effective, and I think he knew full well that he needed people like Malcolm X being genuinely extremist in their rhetoric in order for his own demands to sound reasonable. In doing so he was able to change the choice faced by society from that between "a negative peace which is the absence of tension" and "a positive peace which is the presence of justice" to one between the positive peace and the brutal violence of a race war.
(It has occurred to me that one subconscious motivation for the decisions in Trump v. Anderson and Trump v. United States was a fear that if Donald were disqualified, or properly prosecuted for his very serious crimes, his supporters--some of whom had already proven their willingness to be violent--would get even more violent, perhaps against some black-robed jurists working at One First Street, Northeast. The law should not be impeded by an assassin's bullet, but the fear of the bullet is a powerful motivator.)
Having given this a bit more thought, and this is aside from the point of the article and rather on the point about 248, there may be another issue with nonprosecution of Section (a)(2) violations (or corresponding parts of (a)(3)): when it might come up, there's bigger fish to fry.
For instance, could the June 2015 Charleston church shooter been charged with violations of 248? I imagine he could have been. He was also charged with numerous counts of murder and attempted murder, and related hate-crime and firearm charges, and was incarcerated for life with a potential federal death penalty. (Of course, due to the partisan valence of the death penalty in the US these days, he wasn't executed under Biden, and given his ideological bent and reasons for his atrocity Donald may well have people like Steve Bannon and Stephen Miller in his ear telling him not to sign off on the execution; he wasn't given a sentence of death on the state charges in South Carolina.) Tacking on 248(a)(2) or 248(a)(3) charges would have really not added anything to what he was facing, and not meaningfully extended his sentence, so there was little use pursuing prosecution on such a charge given the gravity of the rest.
So here then is the question: how often is it the case that there are violations of 248(a)(2) that do not further involve other, more serious crimes? Because there are violations of (a)(1) that go no further, but I'm not sure if there are violations of (a)(2) that go no further. (For another example, George Tiller's murderer might well have been in violation of 248(a)(2) or (a)(3), since Tiller was shot at a church while serving as an usher, but the shooter wasn't charged with that offence from what I can see; he faced, and was convicted on, one murder charge and two charges of aggravated assault. But I think he certainly "by force [...] intentionally injure[d] [...] a[] person lawfully exercising [...] the First Amendment right of religious freedom at a place of religious worship", so he could have been, and potentially even charged with such in relation to everyone else at the church that day under the "interfere with" provisions; just that as I noted, there were bigger fish to fry in that case.)
If (a)(2) (or corresponding provisions of (a)(3)) is not being prosecuted despite cases where it is the most serious offence in some act, that is bad, and even people who support (a)(1) but could do without (a)(2) should be mad about that because without (a)(2), there is no (a)(1) in Section 248, as that was the legislative compromise, so any moral force for prosecutions under (a)(1) is lost without prosecutions for comparable acts in violation of (a)(2). But if violations of (a)(2) only arise in the context of other, much more serious offences, then that could explain why (a)(2) does not see any prosecutorial effort; it simply isn't worth the legal time.
This is a fair point! Not knowing the details of the allegations, I can't answer any of your factual questions, but I think you are right that, when a Criminal Event occurs, it is not incumbent on prosecutors to indict and prosecute every single crime committed in that event; it as acceptable and perhaps even preferable to focus on the most serious crimes (that can be proved to a jury). It is facially very plausible that FACE Act violations against abortion clinics are quite different Criminal Events from FACE Act violations against churches, which may explain the discrepancy, if there is a discrepancy, which there may or may not be. (I don't know the facts.)
A (regrettably only somewhat) hypothetical event that it occurs to me could be an (a)(3) violation is something related to what's been happening up here in the Toronto area: theft of Jewish prayer scrolls, twice just in December 2025.
(Also I realised I mixed up (b) and (c) with (a)(2) and (a)(3), and have edited my previous post accordingly.)
I should note that up here, it's been occurring at private residences, not synagogues, so if it were happening in the US it would not engage (a)(3), but it would not at all surprise me if a synagogue in the US were so vandalised in the near future; given that theft and vandalism are far less serious charges than murder, such an event (though I hope it never occurs) would be a much better vehicle for charges under (a)(3)'s provisions related to places of religious worship than something like the 2015 Charleston mass shooting would have been for (a)(2) charges.
Having thought about the legitimacy question, I think there are, from what I've seen, two main arguments on the point, one legal and one moral.
I am assuming for the time being that the relevant sections of the US Code not only authorise but mandate a general manhunt for all deportable aliens; I am not outright conceding the point, but I do not need to contest it for these arguments.
(I am also setting aside arguments about immigration increasing both the supply of and demand for labour, arguments about tax revenue and the ITIN program, and arguments about food security and US citizens and other persons legally present in the US often being unwilling to work agricultural jobs even for decent pay and benefits.)
The main legal argument against what is being done is that while the text of the US Code may authorise or even mandate it, the issuance of a general order of removal sure looks a whole lot like a general writ of assistance. Those were used in pre-Revolutionary America by the British colonial authorities, and proved a sufficient irritant to be one of early factors eventually leading to the Revolutionary War. The memory of them lingered long enough that they led to warrant particularity requirements in many of the colonies and later states, and further to the analogous requirement in the Fourth Amendment, that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." If such an order is in effect a general writ of assistance, it would seem to be prohibited by the Fourth Amendment; even if it is not, many people find that such an order violates the spirit of the Fourth Amendment's particularity requirement (this would be moral illegitimacy, though not the argument I will get to); even if it does not do that, there are still arguments that certain of the tactics used by ICE may violate the Fourth Amendment, whether in letter or spirit. (I am aware of Noem v. Vasquez Perdomo, but of course someone could still feel that the Court got that one wrong and in effect authorised general warrants that would violate the Fourth Amendment, and I have seen that argument.)
There are also related complaints here that the use of the military in certain of these operations violates the Posse Comitatus Act.
So the argument for legal illegitimacy, in brief, is that what is being done and how it is being done violates the Fourth Amendment, with a side argument of moral illegitimacy for violating its spirit even if its letter is not violated.
The moral argument is that in at least some cases of people crossing the US border other than at a legal port of entry, they are fleeing drug-related gang violence and/or crippling economic conditions in Latin America. This, the argument goes, is fueled at least in part by American demand for illicit drugs (related to this are arguments for drug legalisation so that people who are tragically addicted to such substances can get safely produced and tested versions of the substances on which they are unlikely to overdose--say, normal heroin, instead of stuff that might be cut with fentanyl) and so the United States, while it might have a legal right to turn away people fleeing the violence and instability created by drug cartels trafficking such goods, has no moral right to do so. The argument further proceeds that other aspects of Latin America's poor economic conditions were created due to American influence in economic policy, with people pointing particularly to countries like Chile where the dictatorship of Augusto Pinochet (requiescat in pace President Salvador Allende) implemented economic ideas promoted by the likes of Milton Friedman, to disastrous results, and so since the United States was responsible for exporting such policies, and in some cases imposing them antidemocratically, it has no moral right to turn away people seeking to escape the consequences of those policies.
So the brief argument for moral illegitimacy is that the US has no moral right to turn away victims of its own policies. (Of course, in this case, you will rightly point out that appeal to higher unwritten law does not absolve someone of an obligation to follow valid written law, and to accept the consequences of violating the latter, which may well be missing among many of the protesters against the actions of ICE.)
Does any of this actually hold water, whether legally or morally? That is for the law, and for each person's conscience. But it might explain why someone could perform or even demand civil disobedience while still claiming to act in defence of the law, because they are appealing to a higher law (be that the US Constitution, or a moral mandate coming from the dictates of one's own conscience).
This was a very interesting piece to read through, and you're spot on regarding the 'vibe' of my circle here in the dark blue haven of SW Minneapolis. There were multiple points while reading where I clicked the share button ready to send this along to others but each time I stopped myself short... This both seems like good, high-quality, accurate information as well as something I don't want to be the initial voice of.
By burying 'this is in fact bad' deep in the article, and making your headline and main argument about how it isn't *that* bad, I think you might be defending this application of the law in ways that it doesn't deserve.
You describe immigration law as if it mandates the deportation of everyone who is in the United States without legal permission, with discretion on whom to prioritize. This means previous presidents haven't seen to the law faithfully, and Trump is. But that's not the plain text of the law, as far as I can see. I've linked below. INA 237 and INA 238 are the most relevant parts.
The law renders many statuses deportable, by order of the Attorney General, but only mandates that the AG shall pursue deportation for a much narrower band--basically, criminals. The purpose of the law, from the text, is not to establish a manhunt, even low-priority, for everyone without legal immigration status, but rather to make it so that if someone crosses the border and then creates a problem, the USA can send them back so that this problem is someone else's.
This means that pursuing deportation for everyone deportable is within the legal authority of the executive branch, but so is declining to deport everyone who is deportable unless they break some other law--and the plain text implies something closer to the the latter approach than the former.
Have you read more on how to read this law?
https://www.uscis.gov/laws-and-policy/legislation/immigration-and-nationality-act
Perhaps I am looking at a different part of the law from you (tbh I don't understand your reading of the "narrower band" at all), but I *think* you're reading a mandatory duty as a discretionary duty in 8 USC 1227(a).
The first sentence of that section tells you two things. First, it tells us *what must happen*:
> Any alien (including an alien crewman) in and admitted to the United States shall... be removed if the alien is within one or more of the following classes of deportable aliens.
"Shall" is mandatory. When Congress wants something to happen, it generally says it "shall" happen. (Otherwise, it usually says "may.") The executive branch has a positive duty laid upon it by Congress to remove all deportable aliens, period.
However, since it is laying a duty on the government, the statute also needs to tell us *who must do it*: "...upon the order of the Attorney General..." So, for executive branch purposes, it is the job of the Attorney General to identify deportable aliens and order their deportation. But he doesn't get to decide who gets sent back based on who is "creating a problem." Congress made that decision; the problem is their unlawful presence. If the A.G. isn't doing removing them for that (at least without some extenuating circumstance), he is failing his own oath to "faithfully discharge the duties of his office" and preventing the President from fulfilling his own oath to "take care that the laws be faithfully executed."
So -- assuming I am looking at the same parts of 1227 and 1228 as you are -- I think you're mistaken: the clear meaning of this text is that it *does* establish a manhunt for every person not legally present in the country. Although I think the text speaks for itself, it is reinforced by other features of the law, such as parole, where Congress has allowed the executive branch to allow *some* deportable aliens to remain indefinitely, within strictly defined limits (which Congress has deliberately tightened over the years). If the A.G. already had the discretionary power to allow (nearly) *all* deportable aliens to remain indefinitely, this would not be needed (and the limits placed on parole would be inoperative). To the extent that legislative history is probative for legal meaning, it seems clear enough historically that Congress certainly *though* it was ordering the removal of the people classified here.
Now, to climb down from this tree a *little* bit, the reality is that the executive branch has many laws to enforce and inadequate resources to enforce them all. (Congress loves unfunded mandates.) Immigration removals also involve foreign affairs, sometimes making removal difficult. As a result, the executive branch necessarily exercises discretion about how to prioritize enforcement. Moreover, judicial review over immigration enforcement (or non-enforcement) is very limited, and cannot readily discern the difference between "not enforcing the law because we can't" versus "not enforcing the law because we don't agree with the law."
So I'm not saying that Biden, Obama, and to some extent Bush II should have been sued and punished for their open refusal to enforce immigration law. In the final analysis, the "take care" close is mostly up to Congress and the voters to enforce (God help us). But it was unlawful, and, I think, impeachable in at least the post-2010 cases, due to the blatant contempt for the law and elaborate attempts to maneuver around it. (Not that we have an effective impeachment mechanism.)
If I've persuaded you that removal is mandatory, then I hope it also falls into place why I (who am very concerned about legitimacy crisis and civil war) think the "massive resistance" campaign against it is alarming.
The sentence we're both reading, when not disassembled, reads:
"Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:"
If you take out "upon the order of the Attorney General," as you do, then it would read as you say. That's a strange and selective place to insert dots of ellipsis! You then read the elided phrase separately to make the AG responsible for executing what you've constructed as a mandate.
But reading this sentence normally describes something as happening when the AG orders it, which she may or may not do.
For contrast, read 1228:
"The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense..."
"... the Attorney General shall provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof, in the case of any alien convicted of an aggravated felony..."
These are imperatives! These sections are right next to each other, sequentially. Why would 1228, concerning felons, clearly spell out that the AG shall do this and that, and 1227 phrase that deportation shall happen upon the order of the AG, if this difference were not meaningful? Throughout, the lexical choice is "deportable" or "removable," describing something that the United States *can* do, an option available to it.
Congress carving out exceptions to deportability, then narrowing or broadening them, doesn't change that. Criteria XYZ make a person deportable, with proceedings upon order of AG. Deportability plus a felony (or some other things) means the AG *shall* deport them.
Either way, the ordering of mass deportations is within what the law *can* do, so the question you ask about mass resistance depends either on reading the implementation as illegal or on arguing for civil disobedience for unjust laws. But I'm not making either argument here. You're saying that the law does mandate a manhunt on every undocumented immigrant, making Trump's interpretation of the law necessary until the law can change, and that's just not what I'm seeing in the English.
I put ellipses in simply to show the separate clauses of the sentence and their different functions. The predicate is "shall be removed". The prepositional phrase simply modifies the predicate by telling us how the removal is to be effected. You can put the prepositional phrase where it is, or just after removed, or at the end of the sentence, and it bears the same meaning; in no case does it make the order discretionary.
Now that you've expanded your explanation, I can see where you're coming from. Your interpretation of "upon" as creating a condition for removal is not grammatically excluded, nor is your further interpretation that this condition is entirely left to the A.G.'s discretion. But I don't think it's at all the best reading of the text.
As far as I know, your reading is completely novel. Are you aware of anyone who has adopted this reading of 1227 before 2025? The text controls, of course, even if nobody notices what the text says, but nobody noticing what the text says for a very long time seems probative.
Now, in Johns v. Department of Justice of U.S. (Fifth Circuit, 653 F.2d 884; 1981), the Court stated (as a premise): "Aliens who are determined to be deportable, “shall be deported” upon the order of the Attorney General. His responsibility in this regard is akin to his responsibility for enforcing the criminal laws: in both situations, he has discretion to refrain from instituting proceedings even though grounds for their commencement may exist." It seems to me that this confirms my view: the A.G. has prosecutorial discretion to refrain from instituting proceedings in particular cases, just as in criminal law, but a general obligation is nevertheless laid upon him, just as in criminal law.
For example, Congress made insider trading illegal. That establishes, as you put it, a manhunt against all insider traders. In any particular case, the A.G. may decline to prosecute. Nobody can compel him to. But, in general, he has a *duty* to prosecute and would be breaking his oath if he, in general, stopped prosecuting all insider traders. (Courts PROBABLY could not compel him, although see U.S. v. Texas (2015) for a site of intense controversy over whether executive discretion can become *so* systematic and abusive that the judiciary must step in.) If he or the President ordered that large classes of insider traders not be prosecuted on the theory that Congress has only made insider traders prosecutable rather than criminal, I would call him an oathbreaker. If a future president then robustly enforced the insider trading laws, I would call it a threat to the rule of law if a large body of people tried to prevent admitted insider traders from facing justice.
I suspect the slight difference in wording between 1227 and 1228 is because the sections were drafted and enacted 36 years apart. There are certainly contexts where very different wordings in close proximity to one another indicate a meaning, but these wordings aren't meaningfully different, I think.
You're right that Congress carving out exceptions to deportability (so that a given alien becomes non-deportable) doesn't matter, but I'm talking about cases where Congress explicitly provided *discretion* to the A.G. to not deport people that Congress *has* designated as deportable. I mentioned parole already, but a clearer example is cancellation of removal (1229b(a)). Here, Congress grants the A.G. authority to, at his discretion, *not* deport a deportable alien under certain conditions. But if, as you argue, the A.G. already has this discretion, this section doesn't do anything, and the conditions are inoperative! Or, again in 1227(a)(i)(H), the A.G. is given the discretion to waive removal in certain specific cases involving fraud causing inadmissibility for family members and domestic-abuse cases... but, on your reading, he already has that discretion, for *all* non-felony cases, so what would be the point of this clause?
For these reasons, I think that, while your view is not excluded by grammar, my view is grammatically stronger and better supported by structure, history, legislative purpose (if you go in for purpose). It's hard to imagine a court case that might be able to test this (the facts of the cases I did find are *nuts*), but I *think* if you tried to make the argument at SCOTUS that the A.G. has *no duty* to remove deportable aliens, and can therefore generally refuse to remove them -- not because of resource constraints or foreign affairs constraints but just because he has no duty to do that -- you would lose 9-0.
(Of course, that's easy for me to say when there's exceedingly little chance of an actual case testing it.)
Original to 2025? Quite the contrary, it looks to me like most everyone, Democrat and Republican, read the text with its most literal meanings ("deportable" meaning someone who can be deported, not who must be) until relatively recently. And unintentionally, you've made an argument for that! The enforcement you describe for decades under multiple administrations all makes sense if they read the clearest face value of the text as Daniel and I do.
The law was passed in '52, when the internet and digital records didn't exist. Social security numbers had only existed for 16 years, and a lot of people didn't have them. The level of surveillance state required to enforce the law in active pursuit of every potentially removable person would have been absolutely insane, even if we assumed infinite resources--which implies that Congress did not have that in mind. It's not as if there were an era just after the law's passing when it was enforced with Trump's aggression, and later presidents let it go. If the current administration is the first one to enforce the text "correctly," after almost 75 years, maybe history is correct and not Trump.
We don't need to read against the text for this. "Upon the order of the Attorney General," goes the vital phrase. "Upon" is a conditional--it means "after" or "triggered by." If Congress were just outlining who's responsible, it could have used language like it does elsewhere throughout the document to do so. A mandate or a simple indication of responsibility isn't what "upon" means. Also, while location of modifiers and clauses might not matter much in languages with more declensions, English communicates a massive amount through syntax. By location and denotation of that phrase, there's a mandatory effect of a discretionary order.
This appears taken as a given in any pre-Trump legal decisions I've looked at so far. In Arizona v United States (2012) we have SCOTUS saying, "Removal is a civil, not criminal, matter... Discretion in the enforcement of immigration law embraces immediate human concerns... The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service." That's clearly not just 'we're going after the worst people first,' that's 'we're seeing these factors and opting not to order removal.'
The language in that '81 case suggests that removabilty should be understood in ways parallel to criminal prosecution, but also, not even criminal law is always built to call for prosecution of everyone who could be prosecuted, resources aside. Obstruction of justice, for example, is usually only prosecuted when there's an underlying crime and/or a bigger fish to fry up the chain. For the prosecution of any law, you usually look at the history of prosecution, as this often tells you something about what the law is *for.*
You mention the idea of purpose in text. I absolutely go for purpose in text, distinct from fishing for intentions in authors' heads. Enforcement along Trump's lines implies a purpose of maintaining purity of the blood. For all the racism of 1950s America, I do not believe this was Congress' purpose with this law. I'll return to the premise that the purpose of the law as written is to oust deportable aliens when they surface as a problem to the federal government, usually by committing some other crime. This is strongly implied over and over by the salience of the criterion of having committed a felony or not.
That brings us to your idea that the AG could decline to order *any* removals other than those mandated by the next section. While technically possible under the letter, this probably would exceed the reasonable boundaries of discretion for good faith enforcement--*but so does active pursuit of everyone who could be removed.* The latter is a greater violation of the law's purpose, I would argue, and it's a reality that we are facing, whereas your counter position of not removing anybody isn't a real historical position of any administration. The Biden administration was one of exceptional unnecessary cruelty toward immigrants, and it's only the willful cruelty of Trumpism that makes anything else appear decent in contrast.
Regarding 1229b(a), cancellation of removal is a bit stronger than deferral or temporary waiver. It implies that individuals whose removal is *canceled* need not fear removal as long as they continue to fit those criteria, which is stronger than 'we just haven't issued a removal order yet,' but does not go so far as the next section, which alters status to no longer be removable if administration priorities change.
The waivers in 1227(a)(i)(H) are not redundant because of where they fit in the process. (This might apply to 1229b(a) too.) Orders of removal begin with the AG, whereas the waivers allows an immigration judge acting under general directives of the AG to waive a removal once ordered. Discretionary enforcement paired with specific safe harbors. That all sounds operative to me!
All of these legal conditions revolve around the correct idea that deportation *is a big deal.* It is a massive imposition on individual liberty, more so than many criminal penalties. It is a big deal for a federal government to label a person as removable, and a big deal actually to remove them. The law correctly already has discretion built in. There might be legislative change needed in immigration law, especially around how legal entry works so that we don't wind up with so many legally removable people to begin with, but we don't need to change the removal law for humanitarian discretion to figure into its enforcement.
From where I sit, this interpretation seems like plain language. But I'm no expert in this at all, and my time to pursue this argument is limited, so it's possible I'm completely wrong. The more I Google, though, the more I think I'm right on this one.
"It's not as if there were an era just after the law's passing when it was enforced with Trump's aggression, and later presidents let it go."
In fairness, there was Operation Wetback in 1954: https://en.wikipedia.org/wiki/Operation_Wetback
EDIT: On another point, even if two laws were written decades apart, a difference in wording is still meaningful. The later legislature could have chosen to mimic the wording of the earlier law, or make a coordinating amendment to the earlier law to match the wording of the new one (or repeal it fully and enact its own version to go along with the new law). Choosing not to do so, and thus having different wording in different laws is, while not something that dispositively implies different meaning, at least indicative that inferring different meaning is reasonable.
Indeed there was! To phrase that more clearly, it's not as if the law were enforced at first as if it created a mandate to deport all deportable persons, even if Trumpism is not the first time it has been deployed in ugly and racist ways that also affected legal immigrants and citizens.
Completely irrelevant (to this discussion) side note while I'm parsing the statute for myself: 1227(a)(2)(A)(vi) expressly provides that the preceding sections (aside from failing to register as a sex offender) shall not apply if a pardon has been granted, specifically requiring that for state offences the pardon be granted "by the Governor of any of the several States." Notably, it does not say "executive authority" as some other statutes do, which might imply that US federal law expects that states will not adopt a system akin to Pennsylvania's original executive council model (though a ceremonial head of state styled the Governor with de facto executive authority exercised by the legislatively accountable Cabinet, giving conventionally binding advice to the Governor, that is, the model of a parliamentary republic, might be permissible; Australia's state-level viceroys use the title "Governor", and similarly for the analogous position in Indian states). I wonder if this is a permissible exercise of the "Republican Form of Government" section of the Guarantee Clause.
To the point itself: I think this entire question turns on the proper interpretation of the placement of the intervening clause here: "shall, upon the order of the Attorney General, be removed". I think there is no question that anyone who enters without going through proper border procedures at a legal point of entry falls into the class of deportable aliens; (a)(1)(B) is clear on that point ("Any alien who is present in the United States in violation of this chapter or any other law of the United States"). But I think it is a plausible reading of the initial clause that it does not compel the Attorney General to issue such an order, but rather compels the executive to ensure the removal of a deportable alien upon such an order issuing. It does not necessarily say that the Attorney General shall issue an order; it says that the alien shall be removed once the order is issued.
Other laws, and legislative history, may indicate against this reading; mine has not been as exhaustive as yours. But on its face it does not appear to me that 1227 compels the Attorney General to issue such orders.
re: "You cannot object to the Trump Administration on rule-of-law grounds and broadly oppose ICE enforcing the rule of law."
...except you obviously can: if (with all due emphasis on the *if*) you accept the premise that the law itself is unjust, at least in relevant part, and/or if the just aims of the law are being enforced by unjust means. I think the main reason your argument is failing to convince people is because you are not addressing the deeper moral claims; laboring to argue "well it's just what the law says" or "these certain parts are imprudent or illegal, but the law's the law" with people who fundamentally align much more with a claim like "an unjust law is no law at all".
Do you think this is failing to convince people? I've been rather pleased by the reaction, myself, at least from what I've seen here. Someone reacting to this by saying, "oh! I didn't realize the extent to which ICE is following the law, so we need to change the law right away!" is a complete success for what I set out to accomplish.
You're right that, when I claimed you "cannot" object to Trump on rule-of-law grounds while also objecting to ICE enforcing the law, my "cannot" was too strong.
I do think this piece refutes the common, facile case made by, e.g., Mayor Frey: that Trump is acting like a dictator / violating the Fourth Amendment / outside the rule of law / that ICE is acting without legal warrant / against the will of the People. This narrative both oversells ICE's alleged wrongs against the law and *drastically* undersells the conflict between its own supporters and the written rule of law. I think I showed here that that narrative is false. That was my chief goal.
You can make a different argument about U.S. immigration law being *unjust*, but it's *much* more complex. You first have to make the case that current law is, in some way, unjust. Then you (ordinarily) must present some alternative that *is* just while also permitting the U.S. to accomplish its morally legitimate policy goals without undue costs. Then you must sketch out some implementation principles for how a good citizen ought to regard facially valid but unjust laws. "An unjust law is no law at all" is a great slogan, with a fantastic pedigree, and I agree with it, but it requires a great deal of elaboration and careful distinction. The devil is in the details -- literally. ("And when the devil turned round on you, where would you hide, Roper?")
Finally, having shown that U.S. immigration law is unjust, that it can be remedied, and that unjust laws can be disobeyed or disregarded in at least some cases in at least some ways, you come to the hard part: showing why Donald Turmp's own conflicts with the written rule of law aren't *also* unjust laws that *he* is right to ignore.
This step may include convincing a Trump supporter that you aren't just saying, "It's a crisis when Republicans break the law but it's actually *good* when Democrats break the law". That's particularly hard after 2021-2024, since the administration at the time was known to sometimes follow that rule exactly. Of course, that last part doesn't make the argument any theoretically harder, but it sure does make it rhetorically harder.
All told, I think this is a tough argument. Most people are not capable of making it. (You are one of those I think probably is capable of making it.) Thus, most people aren't making it; they're defaulting instead to a false argument where they are on the side of the Constitution, when, in fact, they are taking William Lloyd Garrison's side. (WLG is my favorite or second-favorite abolitionist, so I don't mind people taking his side, but it's a fraught position and those who take it should consider fully the implications.)
On a potentially related note, juries have been, at least in some cases, refusing to convict, or grand juries refusing to approve indictments against, people who interfere with ICE and other such operations:
https://ktla.com/news/local-news/tow-truck-driver-acquitted-after-towing-ice-vehicle-during-downtown-l-a-arrest/
https://www.nbcnews.com/politics/justice-department/dc-sandwich-guy-verdict-rcna242142
https://www.nbcnews.com/politics/politics-news/grand-jury-declines-indict-sandwich-guy-threw-sub-dc-federal-officer-rcna227464
Juries are, of course, permitted to return verdicts (or refuse indictments) contrary to law, so this is a look at how the public at large views some of the actions of the current administration.
Yes, deportation is messy and would b e so even if properly dine, with all due process of law.. But I have seen enough reporting on other cases, not just in Minnesota, to believe that ICE and CBP is being capricious, cruel and lawless enough, not to warrant the benefit of the doubt that I might otherwise be willing to grant -- especially when accompanied by pretty obviously racist remarks from Trump and his administration.
As is frequent, it's time for me to make a post talking about nothing in the article other than a pedantic observation on one minor portion!
In regards to this statement:
"If you don't like that, I understand! I am the great-great-grandson of an immigrant, the superb Kate Durkin. She was considered very undesirable (because Irish), but she was admitted anyway because, in the 19th century, the United States had open borders. Anyone who wanted to come here could come here! I am here because of that generous policy!"
You don't specify the year when this happened, though in a footnote you say it was "nearly 150 years ago". 150 years ago when you posted this would have been 1875, and since it was NEARLY 150 years ago, it would have been 1876 at the earliest. But the United States did not have open borders at that point.
There are two points commonly pointed to as the end of open borders in the United States. The first is 1808, when the importation of slaves was banned. Whether this counts is arguable, and in any event your statement of "anyone who wanted to come here could come here" would not be frustrated because the slaves clearly weren't coming here because they wanted to. But if we do not count that, then we come to the Page Act in 1875, which restricted Asian immigration. This is prior to 1876.
Actually, immigration restrictions started earlier than the Page Act--various states had implemented restrictions, as explained in this article:
https://www.jstor.org/stable/1123006
The Page Act was, however, the first FEDERAL act restricting immigration of those who come here, and meant an end to open borders nationwide. As the Page Act was about Asian immigration, your ancestors would have been unaffected by it. But, it still was an end of open borders federally. The Immigration Act of 1882 did put some restrictions on people from all countries, so they could have possibly been affected by those... but it's not clear from your statement whether your ancestors came here before or after that (143 years could still be considered "nearly 150").
So if your ancestors did come here less than 150 years ago, it was at a time when it was no longer the case that "anyone who wanted to come here could come here."
"Is ending ICE raids good policy? Perhaps. Would it be good politics for the GOP? Looks that way."
It might also help boost an economy that's been hurt by economic (and especially tourist) boycotts; see, for instance, https://www.cbc.ca/news/canada/boycotts-buy-canada-2025-9.7026211
Foreign tourism to the US is down in no small part because of stories like these:
https://www.theguardian.com/us-news/2025/mar/19/canadian-detained-us-immigration-jasmine-mooney
https://www.cbc.ca/news/canada/montreal/canadians-ice-detention-politics-1.7589414
https://www.cbc.ca/news/world/us-travel-detentions-1.7489525
https://www.abc.net.au/news/2025-06-16/australian-denied-entry-united-states-israel-gaza-columbia/105419154
(Maybe you think all four of these were perfectly legally justified, and furthermore good policy, on the US side! But from the point of view of more than 95% of us, they're all good reasons to avoid the US if at all possible. And that's not even to mention policies like these: https://www.cbc.ca/news/world/us-immigration-visa-social-media-history-esta-countries-9.7012235 )
On the other hand, as you say in the footnote related to my above quote, the damage may well already be done, because the message the rest of the world (and especially ostensible US allies) have taken away from this year is that we have to assume that America is MAGA, not because MAGA will always be in charge there, but because MAGA has proven that they are a powerful enough political force to put someone in charge who can then implement such policies and rip up the US's international understandings and shred its goodwill (if any can be rebuilt at this point) to tatters. (How soon do you think Canadians or Danes are going to trust the US again after the incessant threats of war over the past year?)
And that means that “we will never fucking trust you again.” (And by extension, why would we want to lift a finger to help a slumping US economy?)
https://www.readtheline.ca/p/matt-gurney-we-will-never-fucking
https://www.cbc.ca/news/world/ice-minneapolis-fatal-shooting-immigration-9.7036617
Obviously, I don't know all the facts here, but I have to wonder just how much more wound tight tensions in the Twin Cities can get.
Not much. The temperature today feels to me like it's higher than the day George Floyd was shot. Of course, it's winter and we aren't just coming out of covid lockdowns, so there's probably less riotin' energy. But I expect an unhappily exciting week ahead.
Ultimately, I hope justice is done (whatever that ends up meaning when the case is investigated) and offer prayers for the family.
So much of what went sideways during the GF riot had to do with the temperature being (literally) too hot and everyone being locked inside for ages and ages. But I am definitely more afraid of the MN National Guard and the feds getting into it and pulling us all into an insane conflict.
Pile on what I've been reading about the daycare scandals, Tim Walz making himself a lame duck because of it, and pressures from the federal administration related to said scandals, and I have to imagine Minnesota, and especially the Twin Cities, is a powderkeg waiting to blow.
One day of good weather might be all it takes for everything to explode.
May justice be done and may everyone stay safe.
I think the current mood of the United States, at least among the activist bases, can be summed up by the following exchange:
Person 1: The level of violence against ICE is unacceptable.
Person 2: I agree. Ramp it up already.
I'm putting this here so as not to clutter the comments on your article about the tragic deaths of Ms. Babbitt and Ms. Good.
One thing I do wonder when it comes to legitimacy crises is the extent to which each political actor (and in this I include the public at large, and ideological factions therein) bears responsibility for maintaining legitimacy, or for its breakdown.
For instance, in the instant case, there is of course the faction which insists that current US immigration law is morally illegitimate (but will not accept the legal consequences of attempting to impede its enforcement purely on moral grounds, which Dr. King noted has to be done in order to expose the moral injustice of the law).
But there are also factions which consider the law, or its enforcement, legally illegitimate. For instance, as Drea argued in this comment section, one could well concede that governments have a right to ensure that anyone within their borders is there legally, while also holding that the current operation is not what was envisioned by the legislature in enacting the laws in question. As I noted, one could instead say that the laws in question, or at least the current method of enforcement, does not comport with the Fourth Amendment and its requirement for particularized warrants (which was a factor in the American Revolution).
Another faction might consider the videos of Ms. Good's death and conclude that she was still within the bounds of the First Amendment's "peaceably to assemble" guarantee, and therefore her shooting rendered the operation illegitimate; yet another might say that the deportation of a legal citizen, Emanuelly Borges Santos, rendered the whole enforcement scheme illegitimate (because in this view any immigration enforcement which removes legal citizens cannot be legitimate).
At what point, in other words, does it cease to be the responsibility of the people at large, or factions thereof, to accept the legitimacy of government action as a given, and does it become the responsibility of government to operate within the bounds of the law as the people at large (whether now or at the time of its enactment, and Drea gave history on this) understand it, and not necessarily just in whatever interpretation it cares to espouse even if the people do not accept that interpretation? Or must the people always accede to any interpretation of the law which the government espouses?
(To draw in another topic entirely, if you read the article I linked about the origins of the appropriations origination power in the UK over on your article about the Origination Clause, this seems to have some similarities in that part of what drove Parliament to take a greater hand in the legislative process is that the Commons and the Lords exchanged taxes for laws redressing their grievances, then left, only to find that when the laws were published, what was written by the King and his ministers bore little resemblance to what had been agreed to at Parliament, so to stave off a legitimacy crisis resulting from the discrepancy between intent and language, Parliament began to insist that it approve the language of the laws that the King would enforce in exchange for the gift of tax moneys from the Commons and the Lords to the King; the legitimacy crisis that led to the English Civil War, I think, came later when the King attempted to levy taxes without the consent of Parliament, as I believe that by then the collection of approved taxes was handled by the executive since taxes and spending were mandated by law, so the King thought he could get away with using the taxation infrastructure without Parliament's assent. EDIT: So here I would argue that the government was responsible for the legitimacy crises, because in the early days of Parliament the executive was promulgating laws that weren't actually redressing the grievances of the people, and later with the English Civil War the executive was attempting to impose taxes without the consent of the people.)
This is a good question. Here are my thoughts, such as they are.
One reliable answer to this is to evaluate the legal claims on either side and award legitimacy to the side with the better arguments. The problem, of course, is that legitimacy crises arise precisely when large portions of the people evaluate the legal claims and reach different conclusions. (Sidebar: In your presentation of the question, this is framed as "the people" versus "the government," but the government very rarely survives when the people unequivocally deem it illegitimate. True legitimacy crisis pits different factions of the people against each other.) This can happen for a range of reasons, ranging from genuinely irresolvable legal ambiguities to mass propaganda campaigns packed with lies. (The latter becomes more common as civil war approaches, as you can see on both sides in America today.) But, whatever the cause, once you have people with very different views of what the law is, it becomes much more difficult to convincingly appeal to the other camp with legal arguments.
That's probably not an excuse to stop trying. For example, in the instant case, I think the case that ICE is acting (for the most part) with legal legitimacy is rational and correct. I think Drea's view is wrong, that it can be shown to be wrong, and (perhaps worse for it) that it is not even shared by most people on the anti-ICE side of this legitimacy crisis. I will keep making this case where it is prudent and practical to do so.
However, in true legitimacy crises, this reaches a point of diminishing returns. Whether you are a supporter of the government or a dissenter, you have to accept the reality that there's a great many people who sincerely reject your understanding of legitimate law, and then make a decision: should you impose your view of the law on your opponents anyway? Should you do this knowing full well that the cost of imposition will be unrest, instability, and possibly violence? (Is that a fair restatement of your original question?)
This is a question *both* the government and the dissenters have to ask. The Patriots were at least as responsible for the legitimacy crisis surrounding the American Revolution -- and the violence that followed -- as the Crown. (Alas, neither is usually inclined to ask it. The government automatically enforces the law as it sees fit and the dissenters are operating in a stable world built by that government and don't recognize when they start attacking load-bearing pillars.)
This answer probably cannot be answered *entirely* within the framework of the law, because that's precisely the framework that has failed to get us here. I suspect there is no entirely values-neutral answer to it at all.
As for the instant case, I think it would be colossally stupid for either side to immolate the American order over immigration. I'll continue to make the case that ICE's current approach is a legally legitimate approach -- to a considerable extent *required* by current American law -- but, if you made me President, yes I would follow the law as I see it, but my attitude about it would be night-and-day different. Put me in Congress, and I would push for reforms to our immigration law. I would not cling to a hardline interpretation seemingly custom-built to rip the country apart. It's not worth it. The costs are not worth the benefits (and the benefits of current U.S. immigration law are empirically dubious anyway). I would hope that the other side would see it the same way, and refrain from what increasingly looks and operates like an incipient insurrection against a very longstanding government function... but it's clear that, for various reasons, some significant portion of them are prepared to go there, come what may.
I wouldn't always look to conciliate in every legitimacy crisis, because some hills are worth dying on. Slavery was one. But, on the other hand, look how hard Lincoln worked to conciliate before the guns started firing! There is clearly some moral responsibility on the part of *even the legitimate force* to try to make accommodations to the illegitimate force for the good of the polity. But how to draw those lines outside the values-neutral framework of the law is a task too difficult for a Substack combox.
You are correct that I misframed the conflict; it is often "the dissenters among the people" against "the executive and its supporters among the people". I was incorrectly reducing the former and eliding a key part of the latter.
I agree that a lot of people on the hardline anti-ICE side do not object on legal grounds, but rather on moral grounds, and more broadly on immigration law (or, from some of what I've seen, the existence of national borders and assertions of government sovereignty at all) generally rather than on the specifics of the statutes in question, and then as I said insist that they not face the legal punishment (that said, given where many ICE operations are taking place, it is possible that in some cases they will get away with it, because of jury nullification). I suspect that, if one were to get them to set aside the moral and ideological objections, a lot of them might, if walked through your legal and historical analysis, and through Drea's, agree with the latter (to a great extent, of course, this is probably because Drea's aligns with their moral intuitions!). If it is not shared by many on the anti-ICE side, this may not be because they take a different interpretation of the law; it is possibly instead because they are basing their decisions on a framework that does not take into account a legal analysis and therefore decline, or see no need, to make one. (This stands in contrast to Dr. King, who made the legal analysis, conceded that his opponents were generally legally correct on the statutes, and expressly noted that he called into question the legitimacy of the law primarily on moral grounds, with his legal objections generally being that the statutes in question were enacted by legislatures elected contrary to his interpretation of the 14th and 15th amendments.) This may also be a consequence of the present media environment; even a concise legal analysis can't fit on a protest sign, or will be read by anyone other than wonks if made in a social media or blog post, whereas it's easy, and much more visceral, to make a sign reading something like "NO GESTAPO NO ISSE" (likely with thunderbolts in place of the SS at least) with a big red X through a Nazi swastika. Hence the main objections of the dissenters, in the public consciousness, are the moral ones, not the legal ones. (For that matter, to the otherwise uninterested public, it may well be easier for the dissenters to make the economic case than the legal one, because people see their grocery bills regularly but do not often consciously interact with the law.)
I was going to bring up the American Revolution as an example of a civil war, primarily over the question of taxation (and others, like rights for Catholics) but you already did that; I would add that many of the supporters of the Crown, at least to the extent that they wished to continue living under British rule, fled to the Canadian colonies. As noted in this US military publication from 1946 (https://www.historians.org/resource/gi-roundtable-47-canada-our-oldest-good-neighbor-1946/; out of date in many ways, but not, I think, the history), many of the loyalists had been among the intellectual elite of the rebellious colonies:
"These Loyalists were generally people of superior education and social standing—judges, lawyers, doctors, and business leaders. It has been said that a list of them reacts [sic] like an honor roll of Harvard graduates of that time. Ever since the Dominion was formed, the Maritimes have contributed much more than their numerical proportion of its prominent citizens, particularly in the professions."
(It is also worth observing that the American Revolution, viewed as a civil war, was perhaps odd in that other areas, or at least other people, legally subject to the same sovereignty tried to remain militarily neutral. Nova Scotians, for instance, had preferred neutrality, only to be drawn into the war in defence of their homes when the rebels attacked Halifax in an attempt to deny the port to British forces. This is the background of the song "Barrett's Privateers". Also, what you think this says about intellectual elites may be greatly correlated with how you view the actions and arguments of the dissenters in 1775.)
All in all, I think your restatement of my question is fair; the cost of pressing a claim to a particular interpretation of disputed law (and often this is on moral, rather than strictly legal, grounds*) is often, in extremis, instability and blood, and all parties must consider whether the upheaval is worth the possibility of victory. (Sometimes, it should be noted, the victory is remote; for instance, the rebellions of 1837 and 1838 in Lower and Upper Canada were swiftly crushed as a military matter, but spooked the British sufficiently that they sent Lord Durham to investigate the underlying causes, and over time implemented his suggestions for peaceful reform, much of which was what the moderate reformers wanted all along, but couldn't get the British to listen to until after the violence, and so in that sense the rebellions succeeded. The suffragette terrorism campaign in the United Kingdom in the early 1910s is another example; it ceased with the outbreak of the Great War, and the violence to my knowledge did not resume afterward, but the threat remained and the moderates' reforms were eventually enacted, and so in that sense the self-described terrorists won.)
*To quote Lord Acton:
The primitive fathers of the United States began by preferring abstract moral principle to the letter of the law and the spirit of the Constitution. But they went farther. Not only was their grievance difficult to substantiate at law, but it was trivial in extent. The claim of England was not evidently disproved, and even if it was unjust, the injustice practically was not hard to bear. The suffering that would be caused by submission was immeasurably less than the suffering that must follow resistance, and it was more uncertain and remote. The utilitarian argument was loud in favour of obedience and loyalty. ... "The amount of taxes proposed to be raised," said Marshall, the greatest of constitutional lawyers, "was too inconsiderable to interest the people of either country." ... The object of these men was liberty, not independence. ... both Jefferson and Madison admitted in the presence of the English minister that a few seats in both Houses would have set at rest the whole question.
I do agree that after a certain point in a legitimacy crisis (and I think that this crisis has been slowly building for decades in many ways, with perhaps an underappreciated part being a growing attitude of "laws that operate to my material detriment are inherently illegitimate" among many segments of society; see, for instance, the evisceration of antitrust law, or the rise of Uber and Airbnb) there is no longer a values-neutral answer, and that one's values determine how one ends up aligning in the crisis.
Hume's guillotine ever falls, and his admonition reminds us that reason can only tell us how to get what our passions tell us to value; it cannot itself tell us what to value.
Speaking of jury nullification, this looks like it might have been just that:
https://www.seattletimes.com/seattle-news/law-justice/jury-acquits-stanwood-man-accused-of-assaulting-homeland-security-agents/
https://komonews.com/news/local/ice-arrest-convicted-felon-illegally-present-in-the-us-acquitted-of-ramming-4-ice-federal-agents-camano-island-washington-state-customs-and-border-protection-hsi
https://www.king5.com/article/news/local/jury-acquits-man-assault-federal-immigration-agents-arrest-camano-island/281-7131b513-12df-49c0-9cb4-91f102188f2a
https://www.justice.gov/usao-wdwa/pr/mexican-national-charged-assaulting-federal-officers
It is, however, possible that prosecutors only laid charges more serious than they could actually prove, and the defendant might have been found guilty on less serious charges. (If you want to look at the court documents, the case was heard in the Western District of Washington, probably something like United States v Victor Vivanco-Reyes, I imagine it needs a PACER subscription.)
(I admit to a small amount of confusion, though this may stem from differences in legal systems. I think up here a jury can acquit on the charge laid but convict on a lesser charge; this happened, I think, with Robert Pickton, charged with first-degree murder but convicted of second-degree because the jury did not find that the prosecution had proved premeditation. Perhaps a few crimes like murder are special cases. That said, I can't find the actual charging documents from the case, so perhaps the lesser charges were also laid. The man who murdered Pickton in jail, meanwhile, pled guilty to first-degree murder: https://www.cbc.ca/news/canada/british-columbia/pickton-s-killer-murder-charge-1.7643499 )
To add to this, I do think jury nullification is an extraordinary remedy and that juries might well be going too far with it in some cases; for instance: https://www.msn.com/en-us/news/crime/man-charged-with-shining-laser-pointer-at-trump-s-helicopter-acquitted-in-35-minutes/ar-AA1UptCe
Pointing a laser at an aircraft is really, really dangerous on many levels so the fact that this guy walked, if the allegations are in fact true, is amazing. (And probably says quite a bit about how ordinary DC citizens view threats to Donald's life and health, and that of those who associate with him.)
Further on the point of the legitimacy crisis right now, I think what we are seeing is that even if in the instant case the administration is following the law (and I still do not concede that, because I think that there is a case to be made regarding the Fourth Amendment, and a case to be made regarding the deportation of at least one US citizen last year, unless you happen to buy Donald's argument about who actually gets citizenship from the Fourteenth Amendment), it is clear that this administration considers law to be irrelevant if it poses an impediment to their policy goals (and more clear with them than, I think, with previous administrations; if you squint really really hard and come close to breaking your neck by tilting it you can maybe justify programs like DAPA and DACA as a directive on how to allocate limited immigration enforcement resources). So at this point it is, I think, quite reasonable to treat with extreme skepticism any claims made by them that they are following the law.
Nowhere is this clearer, at least from an international perspective, than with the kidnapping of Nicolás Maduro. I have absolutely no love for Maduro, and I hope that in time true democratic governance will be seen in Venezuela. He is an authoritarian. He plainly lost the previous election there and simply fabricated results to claim he won. But his kidnapping was a clear violation of international law*, as pointed out here: https://bsky.app/profile/cristianfarias.com/post/3mbjlwkmb6c24 Even Marine Le Pen observed that the operation goes completely against the professed principles of the nationalist far-right: https://www.spiked-online.com/2026/01/05/marine-le-pen-is-right-about-venezuela/
(It was further quite something to see how quickly some people turned on a dime on the question of US intervention: https://bsky.app/profile/dieworkwear.bsky.social/post/3mbntvx2buc2n And Stephen Miller all but admitted in the wake of the operation that Greenland is the next target: https://bsky.app/profile/atrupar.com/post/3mbplld6hxw2z )
And it's clear that in this field too Donald sees laws, whether of the United States or of other polities, or customary international law, as entirely optional and that "deals" can override them (even if obtained under extreme duress), or even perhaps just his own policy whims. He's willing to rip up the North Atlantic Treaty completely in order to obtain Greenland, ignoring that Danish law (and by extension EU law) prohibits Denmark from transferring sovereignty over Greenland except in accordance with a specific process, which neither Greenland nor Denmark is willing to undertake. (Precepts of international law provide that Greenland can unilaterally declare independence without Danish consent; however Greenlanders seem at present to be of the view that full independence is not economically viable and that remaining in union with Denmark is preferable to a union with the United States. Nonetheless the preferences of the people of Greenland are also irrelevant to Donald. Even Jordan Bardella has spoken against the possibility of a forcible acquisition of Greenland by the US: https://www.politico.eu/article/france-jordan-bardella-donald-trumps-imperial-ambitions-in-venezuela-greenland/ )
Add to this his stated policy of annexing Canada, and his nominee for ambassador to Iceland's claim that he wants to be the Governor of the 52nd state (nobody in Iceland thinks that's a joke, and it was offensive enough for there to be a public outcry there for the government to reject the diplomatic credentials of William Long should he receive Senate confirmation: https://www.cbc.ca/news/world/us-ambassador-iceland-trump-9.7048349 ), and at this point I personally think that Canada and Denmark (and Iceland) have a better case to raid Washington, DC and kidnap Donald Trump than the US did to raid Caracas: https://substack.com/@dpareja/note/c-195790209 (To be clear, I do not think such a raid would be justified at present, just that it would be less unjustified than the Caracas raid was.) And I think that an immediate response of "that's complete bullshit" is by now extremely reasonable to any legal claims made by this administration, given how it has proven it does not care at all about law, and by extension therefore to consider any interpretation of operative law that would seem to justify the current actions of the administration as potentially flawed.
*As I note, I think there was a case to be made for overthrowing Maduro, which is his threats against Guyanese sovereignty, in a similar vein to how an overthrow of Saddam Hussein could, I think, have been justified in the immediate wake of the liberation of Kuwait. That was, however, not the justification given, nor has Guyana, to my knowledge, requested international assistance in the matter.
EDIT: And, as I have said before, all of this just adds to why "we will never fucking trust you again": https://www.readtheline.ca/p/matt-gurney-we-will-never-fucking
EDIT #2: At this point, it seems apparent to me that Donald has the mentality of a toddler who, upon seeing another toddler with a nice toy, screams "MINE! WANT! GIVE!" and tries to grab it, and when he is inevitably either punched by said toddler or pulled away by an actual adult, throws a tantrum. (Of course, this particular toddler has the authority to fire all the adults and instead surrounds himself with other toddlers who are willing to say "Yes Donald that toy should be yours and that other kid is being very very mean to you by not letting you have it.")
EDIT #3 while I'm drawing foreign policy parallels:
https://gac.canadiana.ca/view/ooe.sas_19460113ES/5
"Within the past decade we have been reminded by the hideous example of the fascist states of the evil which befalls a nation when the government sets itself above the law. Beneath the spurious efficiency of such a state, we have perceived the helpless plight of individuals who have been deprived of the primary right of an impartial administration of the law.
"We have seen also the chaos which is brought to world affairs when lawlessness is practised in the field of international relations. The development of an international code of law is still in its early stages. The past decade has done much to delay and distort this growth. I feel sure, however, that we in this country are agreed that the freedom of nations depends upon the rule of law amongst states."
...
"If there is one conclusion that our common experience has led us to accept, it is that security for this country lies in the development of a firm structure of international organization."
https://www.cbc.ca/news/politics/mark-carney-davos-speech-foreign-policy-9.7053937
https://www.cbc.ca/news/politics/mark-carney-speech-davos-rules-based-order-9.7053350
"For decades, countries like Canada prospered under what we called the rules-based international order. We joined its institutions, we praised its principles, we benefited from its predictability. And because of that we could pursue values-based foreign policies under its protection.
"We knew the story of the international rules-based order was partially false. That the strongest would exempt themselves when convenient. That trade rules were enforced asymmetrically. And we knew that international law applied with varying rigour depending on the identity of the accused or the victim.
"This fiction was useful. And American hegemony, in particular, helped provide public goods: open sea lanes, a stable financial system, collective security and support for frameworks for resolving disputes."
...
"We know the old order is not coming back. We shouldn't mourn it. Nostalgia is not a strategy."
You wrote that Abrego Garcia was removed illegally without due process and that this did NOT happen with a justification using the Alien Enemies Act.
I wonder then (1) how many other people they're removing without due process without use of the AEA, and (2) You said removals under AEA have mostly ceased, but are they continuing, in 2026, to remove people without due process using justifications other than the AEA, as they did to Abrego Garcia?
To the best of my knowledge, the answer to (1) is "none." They tried removing Abrego Garcia without due process and it blew up in their faces to an impressive extent, poisoning the American people with suspicion and hostility toward all future enforcement actions (justifiably so!). Abrego Garcia himself became a cause celebre, because the threat to everyone in the United States was so obvious. There was no way to hide this, because the failure to accord him due judicial process was nevertheless a matter of judicial record, and judicial records are public!
The deck is stacked against people in deportation hearings in several respects. CBP tries to get them to agree to decline challenges, Congress has designed a process that puts the executive branch rather than the judicial branch very strongly in the driver's seat (and Congress did this deliberately, on a bipartisan basis, because earlier iterations with more judicial involvement became horribly gummed up and unable to cope), and the Supreme Court's 20th-century expansion of the Sixth Amendment right to public defenders to represent indigent defendants has never reached immigration. (I say this without expressing a view as to that expansion.) So I'm definitely not saying that people accused of immigration violations have an easy, comfortable road through the criminal process. They don't. The process is rough. But it's a process, and a constitutionally sufficient process.
But the thing with Garcia, where they flew him out of the country in defiance of a court order before according him that process -- that was nuts, and seemingly has not occurred since the AEA deportation attempts.
(2) To the best of my knowledge, no.
Also, the AEA deportations have, from what I've seen, *completely* stopped (not just mostly stopped). The existing cases are still going through the process, but they're all frozen in federal court and are very likely to remain that way (because it's an abuse of the AEA and the courts know it), but the White House hasn't instituted any new cases that I'm aware of in many months.
Immigration is huge and not traditionally my area, so it's always possible I am missing facts or recent developments, but this is what I understand to be the case right now.
And that's good! A country that practices no-due-process deportations is a country where *everyone* is in danger!
It seems crazy that this has come to a general strike: https://www.startribune.com/ice-out-statewide-shutdown-minnesota-business-school-closed-protest-economic-blackout-immigration/601567509