Supreme Court Upholds Title 42 Border Policy: Read It For Yourself

Andrew Donaldson

Born and raised in West Virginia, Andrew has since lived and traveled around the world several times over. Though frequently writing about politics out of a sense of duty and love of country, most of the time he would prefer discussions on history, culture, occasionally nerding on aviation, and his amateur foodie tendencies. He can usually be found misspelling/misusing words on Twitter @four4thefire and his food writing website Yonder and Home. Andrew is the host of Heard Tell podcast. Subscribe to Andrew's Heard Tell SubStack for free here:

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99 Responses

  1. CJColucci says:

    Interesting line-up with Gorsuch and Jackson dissenting. Judicial restraint and procedural regularity from both ends of the spectrum.Report

  2. I can understand a ruling that the lower courts can’t override an executive-branch immigration policy, but how is that consistent with allowing

    Republican states sued and got a federal court in Louisiana to block the Biden administration from ending the deportations at that time as well

    to stand?Report

  3. InMD says:

    My view of the law compels me to agree with the dissent.

    However I can’t help but wish Congress would use this opportunity to actually do something. The ‘asylum’ system is a hopelessly broken joke and is being used as a bad faith means to dodge making a highly ideological case for open borders its supporters know they’ll never win with the public. The truth is that the immigration bar isn’t much better than the nativist nuts and governors busing illegal aliens to other jurisdictions, and for cynically feeding a crisis. Maybe one day some grown ups will come in and clean it up but I won’t be holding my breath.Report

    • Chip Daniels in reply to InMD says:

      The current system of immigration is exactly what a ruling plurality of Americans want.

      A complex web of rules and triggers administered by a bureaucracy whose chief goal is to frustrate and deter those seeking entry.
      On the other side of the coin, a shadow army of workers with no legal rights who can be exploited at will and summarily dismissed when inconvenient.

      Congress is doing exactly what the voters want it to do. Maybe one day the American people will grow up, but today is not that day.Report

      • InMD in reply to Chip Daniels says:

        I think certain big business interests like the status quo for the reasons stated but I’m not sure that’s true for a plurality of the public. More than anything I think it undermines confidence in the ability of government to perform the most basic of its functions.Report

        • Chip Daniels in reply to InMD says:

          I pin the blame on the American people because whenever I talk to people about immigration, its a lot like homelessness where they insist that there must be a solution, but then reject every possible one offered.

          Because any solution to immigration will create some sort of negative outcome on someone’s part.

          We could for instance, crack down on illegal immigration by draconian punishments on the companies that employ them.

          This is unpopular, even with ordinary people. Ask anyone here on this blog if they want to see Walmart executives perpwalked into jail, or if they want to see mom and pop restaurants seized by the state.

          Well, that seems…draconian. Surely there must be another solution!

          OK. We could have a legal guest worker situation to have supply meet demand.
          Oh, the like the thing we have for tech workers, expanded for all workers, and guaranteed the same rights and pay as native born Americans?
          No, that won’t work because you see, that is unfair to native born Americans and amounts to de facto open borders.
          Again, ask anyone here on this blog.

          OK, since immigrants are desired because they work more cheaply than native born Americans, we could erase that differential by forcing a much higher mandatory minimum wage, sufficient to attract Americans to pick lettuce in 110 degree heat.
          Sure, your grocery bill will be higher but- wait, no, you don’t want that?

          Once again, ask anyone here or elsewhere these questions. You will get similar answers.

          What people want, at the end of all the discussion, is something that punishes the immigrants, but not the people who hire them. That allows for a vast army of cheap easily exploitable workers who will do the jobs we won’t.

          In this regard it is like a lot of other problems- homelessness or prostitution- where the status quo is the least painful option after all others are rejected.Report

          • InMD in reply to Chip Daniels says:

            I actually bet we could get a small majority in favor of perpwalking CEOs. Maybe we should set up a poll. Probably tougher for the mom and pop restaurateurs. I also bet there’s more popular support for minimum wage hikes than you’re suggesting.

            But overall I hear you. There is no panacea and any decision is going to involve a trade off that upsets someone. Where I think we disagree is that this is least painful. I think the perpetual crisis of letting millions of unskilled workers enter the country annually (visibly at the southern border but also the much less visible visa overstays) is the biggest source of political instability in the country right now. While it may lack the immediate pocket book implications it is playing chicken with the legitimacy of the state, where miscalculation has way more profound consequences.Report

            • Chip Daniels in reply to InMD says:

              No one ever seems to be able to explain why millions of workers entering the country is a “crisis”.

              Who is being harmed? Every discussion seems to start with the universally agreed premise that immigrant labor is a vital component of our economy and leads to things we like, like lower prices.

              So where’s the “crisis”? The only harms anyone can name, are to the immigrants themselves due to the things you named like the Byzantine bureaucracy and overcrowded courts.Report

              • Philip H in reply to Chip Daniels says:

                The “crisis” is with such abundant cheap immigrant labor we can’t force black Americans back into Jim Crow indentured servitude. Back when we could there was little obstruction to seasonal farm workers coming and going across the southern border.Report

              • InMD in reply to Philip H says:

                If you’re going to put words in my mouth at least come up with something I might actually say. Not like I haven’t been commenting here for years.Report

              • Philip H in reply to InMD says:

                I was answering Chip.Report

              • InMD in reply to Chip Daniels says:

                Whether a person is harmed or benefits depends on who they are. For those realizing the diffuse economic benefits it isn’t much of a crisis and for the concentrations of losers (border towns, highly impacted localities, low wage earners and would-be legal immigrants to name a few) it can be.

                However the larger problem is a highly visible faulure of the government to enforce its writ. I understand you are comfortable with that, but a significant number of people aren’t. I think it’s a major contributing factor to what happened here 2016-2020 and clearly is still fomenting similar problems in Europe.Report

              • InMD in reply to InMD says:

                Re-reading my own comments maybe I am being too vague. What I’m trying to say here is that government competence matters. I think it is an increasingly underrated component of American politics and policy. My argument to my fellow liberals, is that our government is never going to fail (or shrug, or hand wave) its way into some of the better run systems and programs other developed countries take for granted. The entire line of thinking IMO needs to be dismissed.Report

              • Philip H in reply to InMD says:

                How is the government failing to enforce its writ? Obama apprehended and deported more undocumented migrants than did GWB and Biden is in track to post similar numbers via Trump. And Biden has reneged in economic development in South and Central America – albeit very modestly. If you don’t want people massing on our southern border that’s avoid start.Report

              • Chip Daniels in reply to InMD says:

                But of course, all the problems you cite of concentrated harms, can and often ARE also applied to the harms of outsourcing and globalization or for that matter, automation.

                Its like, “Good news, no longer will a Mexican immigrant be here to take your job.”
                “Mostly because the factory is relocating to Mexico.”

                Which brings me back to my point that there ARE solutions to ease the suffering of those dislocated due to globalization of labor and manufacturing.

                But those require sacrifices such as higher taxes and more robust safety nets and probably higher prices, from the American people who don’t want to make them.

                And its not like liberals haven’t been pitching these solutions for decades, ever since Springsteen wrote Atlantic City.

                But in 2016 a lot of people heard those solutions and said “Nah, lets just build a wall. Or inflict enough cruelty on them they will just vanish into thin air. After they mow my lawn, of course.”Report

              • Dark Matter in reply to Chip Daniels says:

                Safety nets attract immigration, they don’t repel it.Report

              • Chip Daniels in reply to Dark Matter says:

                Prosperity, a generous safety net and a liberal democracy with a well-ordered civil society also attract immigration.

                Failed dystopian hellholes tend to have very few problems with immigration.Report

              • InMD in reply to Chip Daniels says:

                Globalization is a key underlying component of all this but that’s precisely why it’s important to have a functioning immigration system, which this isn’t. I’ve also said and continue to believe that among the biggest victims of Trump are his own most passionate supporters to whom he offered a bunch of easy, prejudice satisfying, but totally implausible answers.

                However I also think the left has gone into battle on this subject with far to much ambivalence, based on a faulty emerging Democratic majority framework that strongly suggested it might not be in the party’s interest to fix it. That’s only gotten worse with the NPO component of the coalition deciding that having the government function properly is a tool of racism.

                Obama, to his great credit, I think understood that would never work, and it’s unfortunate that he ran into a totally cynical and recalcitrant GOP. The one point they have though is that when amnesy was traded for enforcement in the 80s the amnesty happened but the enforcement didn’t. That doesn’t excuse the lies and the obstruction. It does mean though that there are reasons Democratic proposals aren’t immediately trusted, due to the history and too many left of center people talking out of both sides of their mouths.Report

              • Dark Matter in reply to InMD says:

                The Left’s problem on this issue is they don’t actually have a solid position. Team Blue has a Xenophobia issue, they’re just less organized and get less press (now days) than Team Red’s.

                Cheap immigrants is something labor is solidly against, it was only as Labor became less important to Blue that Blue has tried to position itself as pro-immigration… but not to the extent of breaking with Labor.Report

              • LeeEsq in reply to Chip Daniels says:

                The crisis isn’t economic to the anti-immigrant people. What they see the crisis as is that millions of immigrants entering the country will fundamentally change the values of the country and what it means to be a real true whatever. This is true in the United States, Japan, Denmark or really any place on earth.

                The defenders of multi-culturalism have issues that they aren’t grappling with. Many of them might want the Wretched of the Earth to have free access to the developed world but they want people they care about in the poorer countries to have absolute protection from the developed world. They might cry bitterly when Muslims are seen as persecuted by Hindus or Buddhists but they don’t seem to mind the popularity of theocracy in the Muslim world.

                To what extent are the immigrants supposed to assimilate into the country they are moving to and to what extent should they not? Do Japanese have to basically endure hardccore Imams shitting on their culture as bad because it is
                un-Islamic because the Muslim immigrants to Japan are a minority or does multiculturalism require Islamic imams to be more respectful to religious an customs they see as idolatrous?Report

              • Chip Daniels in reply to LeeEsq says:

                Those are all good questions, and relate to your perennial question of how a liberal society handles illiberal members.

                I recall a New Yorker cartoon from the early 70s showing a long haired hippie in a job interview at an office, and the boss is gently telling him that no, “Wanting to destroy the system by working within it” didn’t qualify as a career goal.

                It is a weakness of some parts of the left to be blind to bigotry that doesn’t have the villain be the usual white male Christian American.
                Like the tankies who reflexively root for any enemy of America no matter how illiberal.

                And this is where I again propose a culture of liberal tolerance that shuns and shames those who are intolerant.
                Acknowledging how difficult that is to enact in practice and acknowledging how easily it gets abused and gamed to produce the opposite result, still, on balance, a social custom that demands tolerance even for people who are themselves victims of bigotry is a good thing.Report

              • Dark Matter in reply to Chip Daniels says:

                The anti-immigration people aren’t illiberal.

                Liberalism is a political and moral philosophy based on the rights of the individual, liberty, consent of the governed, political equality and equality before the law.[1][2][3]

                “Equality before the law” is what they’d claim they’re trying to get. This conflicting with “consent of the governed” is only a thing if we consider illegal immigrants “governed”.Report

              • Philip H in reply to Dark Matter says:

                If they want equality before the law then they have to support immigration reform and tax themselves and the rest of us to properly fund the agencies charged with adjudicating all this. And they have to acknowledge that reforms will attend going forward but won’t descended reality. They will agree to precisely none of that.Report

              • LeeEsq in reply to Chip Daniels says:

                I mean part of the Left response, especially among the Activist faction, is that the privileged bear the responsibility and the un-privileged do not. This works more often than it does not, so it seems good enough. I find this argument unsatisfying though because it permits illiberal people to gain leadership positions in minority communities among other issues.Report

              • LeeEsq in reply to Chip Daniels says:

                Another related issue to how liberal society should handle its illiberal members is how should liberal countries treat illiberal countries. From what I can tell, there has been a long attempt to get Japan and South Korea to take more refugees in as part of their treat obligations and they both steadfastly refuse to do so. There is nothing but moral suasion that can be done in many case like this.

                One thing that drives certain people buggy is that the real politics and practical politics can lead to a hyper-focus on one illiberal country but looking the other way at another. Its why some people talk about Moderate Islamists while screaming bloody murder at the Evangelical Christians, Religious Jewish nationalists, Hinduvata activists, and militant Buddhist priests. There aren’t any real Moderate Islamists but theocratic politics are generally popular in many Muslim majority countries. There is no way to prevent this but imposing a lot of force. For better or worse, the other forms of theocratic politics are seen as more easy to defeat so the focus is on them.Report

              • InMD in reply to LeeEsq says:

                It’s not just changing the values of the country. When immigration and assimilation isn’t done well it breaks down the social trust and trust in the government necessary to operate a modern, liberal state.

                All anyone has to do to see what can happen is look at what’s going on in a place like Sweden. Over the last several years they’ve had a surge in grenade and IED attacks arising from refugees they’ve taken in from Middle Eastern and African war zones. It’s had a profound effect on their politics and not in a good way.

                Now luckily we don’t have quite that kind of threat, and even where we do import Central American gang violence it tends to blend in with our pre-existing urban crime problems in a way that doesn’t spark big paradigm shifts in our politics. But if one supports a more robust, forward looking state in America none of the issues around mass illegal immigration are helping. Instead it’s another factor illustrating to people that the government can’t do anything and we either need a more authoritarian bent or to be even more every man for himself as a society. It baffles me that anyone who wants a more effective government looks at that and says oh ho-hum I guess it doesn’t really matter, we’re getting what we implicitly want, and it certainly will have no impact on other goals.Report

              • LeeEsq in reply to InMD says:

                The US did a lot more to create the violence in Central America through anti=Communist foreign policy, the War on Drugs, and Clinton deciding to do mass deportations. There is a certain amount of we broke it in this situation.

                Hard borders are not really a great fit for liberal democracy philosophical speaking. This is especially true if you believe in free trade and all that implies. Chip gets it right n that many Americans do like all the cheap labor that comes with mass immigration even if they don’t like the look of the migrant crisis at the border.Report

              • InMD in reply to LeeEsq says:

                I’ve never bought the you broke it you buy it school of thought on this. These are by and large economic immigrants and I think there’s a decent chance a lot of people would want to be here even if our foreign policy hadn’t been so ham-fisted in the region based purely on the fact that we are rich and they aren’t. It isn’t like any of these places were cruising to developed world status before the cold war or the war on drugs. None of Central America has been well governed since independence, and in any case bad policy as penance isn’t rational or improving the the situation.

                Now I am not really a free trader so much as a fair trader, but I do think there are benefits to immigration. I’m already convinced that we need a healthy bit of it and that we are probably the most adept country on the planet at managing lots of new arrivals. But we need to do it smart, and I’m never going to be convinced there’s a moral imperative or net benefit to doing it stupid like we are now.

                Cheap stuff in the short term isn’t worth Donald Trump in the long term.Report

              • LeeEsq in reply to InMD says:

                You keep saying that they are economic immigrants and ignoring all the issues in Central America if that is a balm to you. The economic migrant line has been used against people fleeing war and persecution forever, even against people fleeing the Holocaust. “It isn’t so bad, these people are exaggerating, etc.”Report

              • Pinky in reply to LeeEsq says:

                A good portion of the recent wave of illegal immigration has been from Venezuela, where they could have used a little more US anti-communism.Report

              • InMD in reply to Pinky says:

                Ehhh that’s just hubris. Our cold war interventions in Latin America were at times immoral and mostly short sighted. There’s no harm in admitting that. But these places are full of people that have their own agency and are subject to circumstances well outside US control.

                I mean, to use your example, Venezuela is a petro-state where power is determined by control of the natural resources. No country with that dynamic functions well, except for the tiny handful that had well developed rules and governance before valuable stuff came out of the ground.Report

              • Pinky in reply to InMD says:

                Venezuela isn’t simply dysfunctional though.Report

              • InMD in reply to Pinky says:

                It isn’t, but neither is Saudi Arabia or Russia.Report

              • Pinky in reply to InMD says:

                I don’t think you get it. Russia and Saudi Arabia represent the golden age of human rights and prosperity compared to Venezuela. It’s in a collapse on a scale we’ve never seen before in the Americas.Report

              • Chip Daniels in reply to InMD says:

                I, for one, am full in favor of wanting immigration and assimilation done well.

                I sympathize with your general goals but you seem to be exhibiting the same problem you mention, of “many left of center people talking out of both sides of their mouths.”

                In this case, it is proposing lofty goals of “well done” assimilation” and a “functioning immigration system” without really grappling with what this would mean, and require to become a reality.

                Assimilation itself, even done well, is in some circumstances seen as indistinguishable from cultural hegemony and intolerance.

                And in order for an immigration system to actually work it will need to accept many times the people it accepts now.

                Looking at the entire sweep of American history, today’s debates aren’t unique. In fact every word you and I are saying now was said in previous eras of rapid change and flux.Report

              • InMD in reply to Chip Daniels says:

                I don’t see how a points system or something similar accounting for merit, skill, and economic needs is a lofty goal, while people who show up without the same arrive to an inability to find work. The same is true for enforcement of labor laws.

                I also don’t shed tears over silliness about ‘cultural hegemony’ and ‘intolerance.’ My mother, aunt, grandmother, and great grandmother were all assimilated in the 50s, when people didn’t care about that stuff. It was a gift to them to speak English and adopt US cultural norms. They benefited from it, and I now benefit from it too.Report

              • Chip Daniels in reply to InMD says:

                You can see though, that assimilation is about a lot more than merely learning a new language.

                Typically it also means shedding the old religion, the old norms of behavior, and rejecting things the parents and grandparents hold sacred and adopting things they considered profane.
                It involves breaking down the old family and community structures and connections and rewiring them in a different order.

                And assimilation also moves in two directions. What we today call “American” culture is actually the creation of Jews, Negroes, Irish, as well as a hundred other ethnic and cultural groups all interacting with each other.

                You can see it right now with the indignation over “wokeness” in schools, where children are learning new norms of behavior and beliefs which contradict the culture their parents held.

                The Glenn Youngkin/ Ron DeSantis/Moms For Liberty faction specifically references giving parents more control over their children’s curriculum, in an attempt to prevent them from being assimilated into the larger cultural milieu.
                And you probably saw the linkage of fundamentalist Christians and fundamentalist Muslims in opposing LGBTQ books. Whose culture needs to be assimilated into whose?Report

              • InMD in reply to Chip Daniels says:

                Assimilation efforts had some pretty ugly aspects to them when native peoples were involved. However when we’re talking about self-selecting immigrants I think the answer is who the hell cares if it upsets grandma? If it is too much of a trade off for some then they don’t have to come. There’s no shortage of people who want in, and those who will take the deal should be welcomed with open arms.

                It is ironic though that you throw the whole woke thing in, which is really an anti-assimilation project. That’s the kind of thing that if it were to succeed will make us ungovernable, though I do thankfully see signs that the fever may finally be breaking.Report

              • Chip Daniels in reply to InMD says:

                “Woke” in the sense that the Youngkin/ DeSantis/ Moms For Liberty mean it, refers to the beliefs of the majority of Americans.
                The majority of Americans want to accept LGBTQ people and are cool with addressing a person by whatever pronouns they prefer.
                As they themselves say, they don’t hold power in any of the cultural institutions of media or literature or academia.

                The cultural conservatives are the minority, who are refusing to assimilate into the larger group. This is why they need to seize the power of government, because otherwise, left to its own devices, culture will lure their children into something Grandma doesn’t like.Report

              • Dark Matter in reply to Chip Daniels says:

                The USA owns the most aggressively assimilist culture on the planet. Combine that with large amounts of territory/population, multi-culturalism, and well established rules on how the various cultures interact and we don’t have serious problems.

                It can take a generation or two, but that’s fine.

                “Functioning immigration system” means we have guest worker programs for the people who want to be here briefly and we have mass green cards for everyone else who is already. Give them some minor slap on the wrists and be done with it.

                In addition staple a Green Card to every 4+ year college degree from an accredited college program.

                We should also be handing out Green Cards to various other people. The Army should have been allowed to do that in Afghanistan (yes, with some vetting but highly likely they were already doing that).

                As the owners of the most aggressively assimilist culture, we should going full Borg on the world’s smart, talented, determined, and so on. So yes, most of those hoards from Venezuela count.Report

              • Chip Daniels in reply to Dark Matter says:

                For the record, I’m in agreement on most of these points.

                I also think implementation of these would provoke actual violence from some quarters.
                But that’s their choice.Report

              • Saul Degraw in reply to InMD says:

                Not all countries are equal here. The United States is pretty good at assimilating immigrants. At least it seems much better than many parts of the world. I think LeeEsq is wrong here in some ways. The overwhelming majority, possibly as close to 100 percent as you can get, of US muslims are assimilated into the mainstream of US society and are not theocratic extremists. Young Muslims in the US are very pro-LBGT rights.Report

              • InMD in reply to Saul Degraw says:

                I agree. I take it for granted that the US can manage immigration better than European or Asian countries. For all of our conversations here about things where they do better I think it’s a big one where the US is superior.

                That said when it comes to immigration from the Muslim world I think it is very helpful that they mostly self-select and we really can screen. We aren’t being asked to take in large numbers of unmarried young men fleeing war zones like the EU has.Report

              • LeeEsq in reply to Saul Degraw says:

                InMD has a point about this. Most of the Muslim immigrants to the United States come from the higher educated classes in the Muslim majority countries. European countries tend to get the working classes and more traditional ones. There is a lot of selection in this regard.Report

      • Dark Matter in reply to Chip Daniels says:

        The “crisis” is we have the law openly being broken by large numbers of people. This is a huge step towards “there is no law”.

        A complex web of rules and triggers administered by a bureaucracy whose chief goal is to frustrate and deter those seeking entry.

        We have a gov entity whose job is to make water flow uphill. Rather than admit this to the public (who will never accept this reality), we layer on rules and triggers and bureaucracy devoted to making water run uphill. We pretend it’s complex instead of impossible. Generation after generation of politicians virtue signal on this making it more complex.Report

        • Philip H in reply to Dark Matter says:

          I suspect most of the public would accept it, were the discussion an accurate reflection of both the economic status and political
          History of those immigrants. Business won’t accept it nor will politicians so here we are.Report

    • Philip H in reply to InMD says:

      Republicans have, for most of my 51 years, rejected proposals for reform Bourguiba forth by their own side and the Democrats. Your hope smacks against decades of hard evidence.Report

      • Marchmaine in reply to Philip H says:

        Presumably 51 consecutive years… which would include the 1986 Immigration Reform Act (Simpson (R) / Mazzoli (D)) R Senate / D House / R President (Reagan).

        Which, ironically, is probably why Republicans since then are twice shy.Report

        • Philip H in reply to Marchmaine says:

          I’m gonna need you to expand in that to help me understand your point.Report

          • Dark Matter in reply to Philip H says:

            He’s saying that when the GOP made deals, it included claims to the anti-immigration flank that we’d never be in this situation again because we’d secure the boarder.Report

            • Philip H in reply to Dark Matter says:

              Got it, thanks. Seems to me then the real Immigration crisis is we can’t “secure” the border and still maintain an adequate supply of cheap enough immigrant labor for certain powerful business segments. Sucks to be them but not something Biden needs to fix since it’s a problem that creates entirely within the GOPReport

              • Dark Matter in reply to Philip H says:

                Business takes advantage of this situation but doesn’t create it. It’s a mistake to assume the people avoiding the law and law enforcement have no agency or involvement in creating this situation.

                The real problem with “secure the boarder” isn’t the money it would take, it’s that we’d have to stomp on civil rights to a crazy degree.

                People aren’t willing to follow the laws as they are because they understand (correctly) that their life would be better if they don’t. Our alternatives would be seriously into “police state” territory were we make them obey and/or make their life suck to the point where they think things aren’t better here.Report

              • Chip Daniels in reply to Dark Matter says:

                Correct, and so I compare the “secure the border” idea to the “war on marijuana” and “make everyone drive 55 MPH” ideas that are fundamentally flawed.

                They are flawed because they all conflict with “consent of the governed”.
                The American people don’t really want to do any of those things listed even if they like to posture that they do.

                Which is my original point. Its the American people, not the politicians, who need to grow up.Report

              • Dark Matter in reply to Chip Daniels says:

                The American people don’t really want to do any of those things listed even if they like to posture that they do.

                Depends on our definition of “the American people”.

                We have large numbers of people who would love to be Americans but who by the letter of the law are not.Report

              • InMD in reply to Dark Matter says:

                This is nonsense, Dark. We can enforce labor laws on private business just fine without becoming a police state. All the message needs to be is that illegal labor will not be available and for that to most of the time actually be true.Report

              • Dark Matter in reply to InMD says:

                This is nonsense, Dark. We can enforce labor laws on private business just fine without becoming a police state. All the message needs to be is that illegal labor will not be available and for that to most of the time actually be true.

                Juan worker is here legally, his wife is not. How do we “follow the law” and rip their family apart without stepping into police state territory?

                Now there’s also the problem that she would like to work and can submit the SS number of a legal relative. Add to that the problem that the tiny business that wants to employ her can’t find any Americans and is looking at either losing money or going under unless they find workers.

                As an added FU to the “all we need to do is secure the boarder” problem, half/most illegals in the country enter legally and overstay their visas.

                The US currently has 600k “dreamers”, and most of them have parents here which is how they ended up in this mess. We have millions of “blended” families where some of the family are citizens and others are not.Report

              • InMD in reply to Dark Matter says:

                The border doesn’t need to be secured if there’s no way, or it is very, very difficult to get work if one isn’t here legally. Most people in the country are here illegally after overstaying a visa, not crossing the Rio Grande. You also don’t need to brutalize people, you just halt their ability to get a job and punish employers hard for employing someone who can’t legally work in the country.

                Yes, there are certainly some difficult situations around families with some members legally in the country and some not. I think you can find policy solutions for that while stopping the continued occurrence. Any realistic reform is going to involve an amnesty or other path for those it isn’t fair to repatriate, which I accept.Report

              • North in reply to InMD says:

                Yup. Chasing around the undocumented migrants is ineffective and pointless which is, of course, why most everyone involved prefers it as a policy. Coming down hard on the employers would actually work which is why virtually no one wants to do it: The nativist right doesn’t actually want the matter solved (how else would they make money and rile up votes); the business right certainly doesn’t want an effective policy- they want cheap labor they can treat like disposable wipes with ICE providing a free trash can; the centrists and indifferent don’t want it- they like their prices low thanks; the liberal left doesn’t want it- it’d cause one heck of a recession and we already have a labor shortage; the lefty lefts don’t want it either- either because capitalism is evil or because borders are racist.Report

              • Dark Matter in reply to North says:

                If your solution is to go to war with job creation and job creators, then you should expect some push back. The incentives are amazingly terrible. It’s less “business wants cheap labor” and more “this tiny business wants to survive”.

                The whole thing about “liberal society” is “consent of the governed”. If your solution flies in the face of that and your “fix” for that is to claim we’re not being brutal or harsh enough, then you’re putting different spin on my “police state” claim.Report

              • North in reply to Dark Matter says:

                Your sentiment on this is nonsensical Dark. If the businesses are employing undocumented immigrants, then they’re breaking the law just as much as the undocumented immigrants are- more so actually since they’re also violating no end of labor laws as well; paying less than minimum wage, violating OSHA etc. Invoking aught era Bush W. language on us picking on the poor poor “Job creators” is likewise nonsensical because the jobs they’re creating aren’t going to Americans and are jobs no one would willingly take unless they were forced to by the duress of being undocumented immigrants.

                Of course, I expect push back, though. I flat out said it in my comment. Going to “war on the job creators” (for undocumented immigrants) would be effective. It’d absolutely work. Pablo the undocumented immigrant has little to lose and getting busted by ICE means he starts walking back to America or does a stint in American jail which is a picnic compared to the country he’s escaped from. Pascal the business manager, whether he is managing a small business or a large one, has a lot to lose by getting busted by ICE if the focus was turned to job creators. His assets are here, they’re immobile and he absolutely doesn’t want to go to jail because it’d be a huge hit to his personal well-being. If government targeted the employers of undocumented labor with policies that had teeth, then there would end up being virtually no jobs available for undocumented immigrants and the vast majority of said immigrants would stop coming to America.

                But of course, as I noted, that’d tank the economy. Crops would rot in fields. Prices would sky rocket for services and goods both. Absolutely, wealthy execs facing jail time would raise Cain. Angry constituents would bring the hammer down on politicians over prices. Something would have to give. Presumably that something would have to be either a guest worker program or a vast increase and rationalization of legal immigration (or else some kind of combination of mechanization and all that agriculture business decamping for Latin America- instead of bringing Pable in to grow strawberries in Cali we’d have him grow them at home and just import the strawberry), I’m not certain- capitalist countries are adaptable. That is why centrists and liberals aren’t interested in doing it- heck that’s why -I- am not interested in doing it, at least not while a Democratic President is running the show.

                The core point, though, is that right wingers who yap about immigration are flat out, unambiguously, full of it. There is a policy option that’d achieve exactly what they say they want and that’d be assuredly effective. You cite prohibition but immigration is virtually nothing like prohibition. Undocumented labor is enormously more difficult to conceal than bottles of hooch. E-verify and a re-targeted ICE could “end” the “border crisis” in a year or so. But it’d tank the economy and it wouldn’t involve government agents beating up brown people so right wingers aren’t interested. For libertarians like you, of course, your problem isn’t seated on the left- your problem is twofold: it’s your right wing fellow travelers who have a passion for going after immigrant labor and, worse yet, they outnumber you a hundred to one.Report

              • Dark Matter in reply to North says:

                If the businesses are employing undocumented immigrants, then they’re breaking the law just as much as the undocumented immigrants are- more so actually since they’re also violating no end of labor laws as well; paying less than minimum wage, violating OSHA etc.

                It’s a mistake to assume that someone breaking one law is breaking all of them.

                Easiest to just pretend to not know about immigration status and treat them as a normal worker.Report

              • North in reply to Dark Matter says:

                Easiest, perhaps, but likewise there’s no reason to assume someone breaking just one law isn’t breaking a bunch of others and examples of undocumented immigrants working for pay and in conditions that no one else would ever countenance abound. Nor is that central to my point.Report

              • Dark Matter in reply to North says:

                If you’re going to argue their employers are bad actors, then also arguing they’re going to follow the law seems a little odd.

                Big picture this is an argument for giving these immigrants access to the legal system.Report

              • LeeEsq in reply to North says:

                Going against the employers of undocumented immigrants is going to raise the prices on just about all the food produced domestically. The prices will raise pretty dramatically as well, something to make the supply chain problems look like a piker. Come to think about it, a lot of the lifestyle enjoyed by the developed world is based on ruthless exploitation in the Global South as they used to say, child labor on cocoa plantations in Africa and coffee plantations in Central America. If good working conditions existed in the Global South, the price of coffee, chocolate, and a lot of other tropical goods will increase dramatically. They might not be every day foods but an occasional treat.Report

              • North in reply to LeeEsq says:

                Well of course it would as I have noted in every comment I’ve made about this. You can’t adopt a policy that’d be both effective and aimed at undocumented immigrant labor and not expect it to have significant negative effects on the economy.Report

              • Jaybird in reply to North says:

                Our portion of it, anyway.Report

              • InMD in reply to Jaybird says:

                I think the biggest fallacy in this whole discussion is the idea that the economics couldn’t be worked through without relying on law breaking. The second biggest is that the status quo is consequence free. It ain’t.

                But anyway, next time we get into a conversation about the perils of deciding not to enforce the law, or the positive things governments can do in high tax, high trust societies, I am sure everyone will align in a manner completely consistent with how they have here.Report

              • InMD in reply to North says:

                I think it’s more that you can’t reform immigration without expecting impact on the economy. Botching it would definitely be bad, but that’s just a case for trying to get policy right, which I would hope is always the goal regardless. What I don’t think makes sense is characterizing the impact on prices as a result of illegal labor as somehow ‘good’ when it’s really based on a distortion.

                I mean, I’m generally pretty pro-immigration. I’m just also pretty pro-good government and playing by the rules, especially when it comes to big business. And yet it’s like you can’t talk about this from any perspective other than Illegal Immigration is Good, Actually without being treated like you want to completely shut down all immigration of any kind into the country.Report

              • North in reply to InMD says:

                As often is the case you and I aren’t far apart. I’m in favor of tons of immigration and would prefer it to be legal.

                But my core point is that these economic discussions are somewhat incidental to the subject. When discussing the right, the non-libertarian portion of the right (which is to say 99.9999% of it) isn’t saying “We need to cut off illegal immigration to help the economy”. Indeed, the economy isn’t central to their immigration beef at all. Their complaint is cultural dilution, crime and diminished voting power along with some facetious allegations that undocumented immigrants enjoy public welfare. Taken at face value their disinterest in “target the employers” policies is incomprehensible because such a policy would be highly effective at eliminating the problem -as they themselves define it-. It’d be infinitely more effective than their preferred policies of building idiotic walls or dedicating ever escalating budgets for ICE to chase individual undocumented immigrants around and brutalize them and yet they have, by and large, no interest in said solution. Why?

                Squaring that circle leads to only unpleasant answers: Either the actual policies the non-libertarian (again 99.999% of) right favors are the point and they are the unabashed racists the far left accuses them of being who just want license to pummel brown and black people; Or they’re economic opportunists who simply want policy to keep immigrants immiserated and afraid so they’ll work for wages and in conditions normal legal workers wouldn’t accept; or they’re incoherent idiots who have no idea what they want and are content to simply eat culture war pap and give their votes and dollars to Republican politicians who give them posturing on immigration and nothing else.Report

              • Dark Matter in reply to InMD says:

                I tend to view “creating a job” as a Right and not a Privilege.

                and punish employers hard for employing someone who can’t legally work in the country

                How many times does Prohibition need to fail before we figure out it’s a bad idea? We’re already doing this. Thus why I and my family are screened before we can accept jobs.

                Insisting that we need to do more to get Prohibition to work flies in the face of history and our current reality.Report

              • Philip H in reply to Dark Matter says:

                Lets use a real world example. Last year two large chicken processors in Mississippi were raided by ICE. Hundreds of Hispanic workers were rounded up – many subsequently deported. Many more were (and perhaps still are) held in custody while they are undergoing various hearings.

                The result? Several hundred deportations. Dozens of small businesses in the town (owned by family of the processing plant employees) disrupted and shut down. Children traumatized by watching their parents hauled off in handcuffs.

                One plant manager was subsequently indicted for falsifying immigration documents – though at trial he presented credible evidence that he had been directed to do so by the plant’s corporate owners. He was fined and sent to jail – the company owning the plant and its owners was not.

                And here’s the kicker – both plants were up and running at full capacity within a week, using Hispanic workers brought from other plants owned by the same companies.

                So when Chip, and InMD and I talk about fining business owners so they don’t hire undocumented people, we are talking about situations like this. Because repeated outcomes like this mean business has no reason to agitate for change to immigration laws.Report

              • Dark Matter in reply to Philip H says:

                Because repeated outcomes like this mean business has no reason to agitate for change to immigration laws.

                Businesses that are large enough to change laws are mostly also international and law abiding. They also have way less power than voters on hot button issues.

                More importantly, if a business faced this issue and is large & powerful enough to matter, then they’ve already outsourced the problem.

                Thus the chicken processors have a problem but McDonalds does not because McDonalds cares about being law abiding too much to own the plant or industry.

                These are cut outs. Line manager is not the owner. Owner sells to McDonalds. Business adapts to the reality to stay in business.

                There’s a difference between “we can replace the workers at a few plants” with “the entire industry could replace every illegal because the US doesn’t have a labor shortage”.

                There is also a difference between “credible evidence” and “we could convince a court in the opposition of well heeled lawyers”. The law has serious limits and our political structure is designed to avoid lots of political pain.

                If you start fining businesses enough to matter and they still need people to run their stuff, then at best all you’ll see is another level of cut outs.Report

              • InMD in reply to Dark Matter says:

                You could make this same argument for any labor law. And companies are hardly going out of business for following the I9 verification process. You’ve got a handful of actors and industries that behave as though the rules do not apply to them, not some inviolable law of nature at work.Report

              • Dark Matter in reply to InMD says:

                There is a disconnect between “this is a small problem with a handful of bad actors, we’re not being brutal enough” and “we have 600k dreamers and millions of people on the boarders”.

                The difference between this situation and “any labor law” is we’re trying to enforce this like any labor law and it’s not getting the result you want.Report

              • Jaybird in reply to InMD says:

                A good bribe here or there, maybe a rule interpretation to start going this way instead of that way, next thing you know, the rules apply to some people but not others.

                And that’s without getting into the whole “If the penalty for a crime is a fine, then that law only exists for the lower class” issue.Report

              • Chip Daniels in reply to InMD says:

                This exchange- Dark’s response to InMD, and Phillip’s example- illustrates to me why the suggestion that “you also don’t need to brutalize people, you just halt their ability to get a job and punish employers hard for employing someone who can’t legally work in the country” is just breezy and handwavy to the point of underpants gnomes.

                I’m not disagreeing with employer sanctions so much as pointing out that Dark’s objection is shared by probably an outright majority of the electorate, especially the part that funds elections.

                And the more fundamental problem is left entirely unaddressed.

                What would our economy look like if every processing plant, farm, restaurant and small business were to strictly employ nothing but native born Americans, who were covered by minimum wage laws, OSHA and NLRB protections?Report

              • InMD in reply to Chip Daniels says:

                What are you basing that on? I don’t see how big business interests getting away with breaking the law neatly leads to the conclusion that it must be popular.

                I also don’t think it’s some kind of underwear gnome theory. Bringing down some consequences is a good way to get stakeholders to the table. I’m also not sure why anyone in this conversation sees the defense of unworkable policy and law breaking by powerful private sector entities as defensible on the merits.Report

              • Dark Matter in reply to InMD says:

                I don’t see how big business interests getting away with breaking the law neatly leads to the conclusion that it must be popular.

                In this case the issue is all of the other alternatives would be massively unpopular.

                Ripping apart families would be unpopular.

                Going to war on job creation would be unpopular where it’s enforced.

                Forcing min-wage employers with unpleasant jobs to raise their rates high enough to attract legal workers would be unpopular because the prices would feed through.

                This has the usual problems with Prohibition. What we want is for other people to follow the unrealistic laws we’ve virtue signaled into existence and accept cramdowns that we personally wouldn’t accept.Report

              • North in reply to Dark Matter says:

                Well don’t argue with the liberals, Dark, they aren’t the ones inveigling about chasing away all the immigrants. Your beef is with the right wingers whos’ votes the libertarian minority uses to secure tax cuts.Report

              • Dark Matter in reply to North says:

                RE: Your beef is with the right wingers

                Kind of. Blue used to be the party of xenophobia because of big Labor. I don’t see why that shouldn’t still be true.

                My impression is Team Blue isn’t trying that hard because outside of their pro-immigration wing support is extremely soft, maybe excluding the dreamers.Report

              • InMD in reply to Dark Matter says:

                Or, hear me out now, some people may be comfortable with immigration but think a functioning system is better than one that is a mess. I don’t understand the binary thinking here, or really the references to prohibition. We have a legal, but decently well regulated system of alcohol, not prohibition nor a total free for all. Immigration and alcohol are beyond apples and organges for too many reasons to count but even if it were apples to apples the parallel wouldn’t support your position.Report

              • Chip Daniels in reply to InMD says:

                The Prohibition era analogy to the Baptist/ Bootlegger alliance is worth considering.

                Baptists= Prohibitive restrictions on legal immigration which drive immigrants underground into the speakeasies of:
                Bootleggers= the vast ecosystem which feeds off the army of terrified powerless workers.

                The Baptists in this analogy though, don’t really care if the immigrants exist. They know and have always known that the workers in the processing plant were undocumented.

                What drives them into apoplexy is when the immigrants demand rights or accommodation- notice the prevalence of “Dial 1 for English” as the hot button fighting words. This sentiment is shared by the bootleggers who go into a frothing rage at the suggestion of better pay or empowerment of the workers.

                To complete the analogy, the Democrats are mostly the Wets, with some factions favoring a ‘Wet-but-only -at-State-Liquor-stores” approach.Report

              • LeeEsq in reply to Chip Daniels says:

                The Democrats have Wets in them but they aren’t all Wets. The Wets-but-only-at-State-Liquor-stores approach might still be in majority. What I think changed is that most Democratic politicians realize that the former line they took, tough but fair, doesn’t win them political points because the xenophobes will still vote Republican and because it doesn’t even work as policy on it’s own merits. You really can’t be tough but fair because the people who really want to be tough aren’t going to be fair.Report

              • Dark Matter in reply to LeeEsq says:

                Big labor lost their ability to deliver votes and Blue is looking for a replacement.Report

              • InMD in reply to LeeEsq says:

                None of that adds up. It’s a bad analogy towards a pseudo-libertarian argument that the state should just throw in the towl on a basic government function.Report

              • Dark Matter in reply to InMD says:

                The current system is a mess because we’re focused on how we want other people to behave rather than regulating how they do behave.

                We have already outlawed illegal immigration and illegal employment. To create a functioning system, we’re going to have to make these things less illegal, not more.

                That’s the big lesson from our various experiments with Prohibition.Report

              • InMD in reply to Dark Matter says:

                No, it’s a really lazy analogy that fails as soon as one makes the most basic observation that lots of immigration to this country is in fact legal.Report

              • Dark Matter in reply to InMD says:

                Legal immigration has it’s own set of problems and should be reformed. Illegal immigration also has it’s own set of problems on top of that, but a huge part of it’s problem is that it’s illegal.

                And since we have huge numbers of people ignoring laws that we’re not willing to enforce because of the whole “consent of the governed” thing, imho Prohibition comparisons are appropriate.

                And yes, that means making the illegal activities less illegal.Report

  4. Saul Degraw says:

    The Guardian Council will not be contradicted!!!!!Report

  5. Michael Cain says:

    The immediately interesting question is this: Arizona is the lead plaintiff, the Governor and AG are changing party next week, who takes over when Arizona withdraws from the suit?

    ETA: Assuming Arizona does withdraw, then the plaintiffs include only one of the four states that have borders with Mexico. Suddenly it’s Texas and a bunch of non-border states.Report

  6. Marchmaine says:

    In April 2022, the Covid Era ends so Title 42 may be repealed.

    In August 2022, the Covid Era continues so Student Loan Forgiveness may be enacted.

    In these uncertain times, ending and continuing Covid Policies are complicated.Report

  7. Philip H says:

    Oral argument will be a hoot. On the one hand of the 19 states petitioning the Court, at most 3 have standing to argue injury. Those arguments will be presented by members of the state level executive branch who will be asking the court to both take away the Administration’s Article level constitutional responsibilities to faithfully execute the laws AND seeking court direction that the same Administration MUST adhere to public health declaration that – checks notes – none of those states themselves have in place (and most rejected over a year ago). The twisty trying to end lame the base’s passion and inflict maximum cruelty on the hated out group will be amusing. And stunningly stupid I assume. But still amusing.Report

  8. Slade the Leveller says:

    Interesting application of the law from a bunch of states that for all intents and purposes acted as though COVID never existed.Report

  9. Pinky says:

    I like it that the Court is letting the justices who care about law speak. On the one hand, five of us are following this legal principle; on the other hand, one of us is giving higher value to this other legal principle; and the three Democrats vote Democratic.Report

  10. LeeEsq says:

    I have a comment in reply to Chip that seems stuck in moderation. I do not use the N-word.Report