Patterico's Pontifications

2/27/2008

Simon Dodd on Illegal Aliens’ Standing to Sue to Block Laws that Make It Hard for Them to Live and Work in the U.S.

Filed under: General,Immigration — Patterico @ 7:05 am



The other day I discussed a case that denied standing to illegal immigrants seeking to overturn a law that would erect barriers to their living and working in the U.S. As I noted in my post, the judge in that case wrote:

[C]uriously absent from [the illegal alien plaintiffs’] voluminous complaint is any challenge to the federal laws rendering their presence in this country illegal. Instead, these Plaintiffs seemingly concede the validity of the federal immigration laws, and file this suit in order to remove any barriers the state of Oklahoma has erected to their continued violation of those federal laws. These illegal alien Plaintiffs seek nothing more than to use this Court as a vehicle for their continued unlawful presence in this country. To allow these Plaintiffs to do so would make this Court an “abetter of iniquity” and this Court finds that simply unpalatable.

I asked Simon at Stubborn Facts if he would be willing to do a post analyzing the soundness of the judge’s standing analysis. Simon has completed his post, and has published the analysis here. His conclusion:

“‘[H]e who comes into equity must come with clean hands’ … is far more than a mere banality. It is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief….” It is a factor courts “must consider when deciding to exercise its discretion and grant an injunction.” And the doctrine is at its apogee in cases which involve not only the interests of the litigants but substantial questions of public interest. And where a plaintiff is engaging in continued illegal conduct that is closely connected with the subject-matter of the suit, equitable remedies [o]bviously ought to be denied. All these conditions are met here, and the district court was, in my view, right to bar the suit.

Read it all. Anyone who takes issue with his conclusion should read his post and take on his reasoning directly. stef?

180 Responses to “Simon Dodd on Illegal Aliens’ Standing to Sue to Block Laws that Make It Hard for Them to Live and Work in the U.S.”

  1. As usial there are those no good bottom dwelling scum suckers who would do anything to allow illegal aleins to steal jobs from honest working americans this rat should be booted out of america

    krazy kagu (656fec)

  2. Patterico – I wouldn’t hold out much hope for stef. She hasn’t shown much good faith ability to reason on other threads here, IMO.

    daleyrocks (906622)

  3. “recognizes a new, and narrow, prudential limitation on standing. An illegal alien … is without standing to challenge the constitutionality of a state law, when compliance with federal law would absolve the illegal alien’s constitutional dilemma — particularly when the challenged state law was enacted to discourage violation of the federal immigration law”

    That’s why it looked so odd: the court made up a new limit on standing.

    I have no idea how much an equitable doctrine like “clean hands” can wipe out a constitutional claim like the 14th amendment’s equal protection of “any person.” I would guess that the Constitution is supreme, and is not overriden by equity.

    But it does seem weak to wipe it out on standing, rather than at the merits.

    The court calls this a ‘prudential’ limit on standing. According to this:

    http://www.law.cornell.edu/anncon/html/art3frag18_user.html

    “The Court has identified three rules as prudential ones, only one of which has been a significant factor in the jurisprudence of standing. The first two rules are that the plaintiff’s interest, to which she asserts an injury, must come within the “zone of interest” arguably protected by the constitutional provision or statute in question and that plaintiffs may not air “generalized grievances” shared by all or a large class of citizens. The important rule concerns the ability of a plaintiff to represent the constitutional rights of third parties not before the court”

    This new standing rule doens’t appear to be like any of these. And appears to fly in the face of the clear text of the 14th amendment. And I don’t see a good argument why it fits in with the general principle of the prudential limits that the author gives:

    the animating concern of the various strands of prudential standing is to avoid courts being “called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.”

    Lets think about it this way. Suppose someone was using marijuana somewhere that made it illegal under state as well as federal law. Would they have standing to assert that the federal law violates the commerce clause when they can remove all their Constitutional worries by following the state law? If the state law was never or rarely enforced but the federal law was?

    I think there is standing there. And there is no prudential limit to it either.

    stef (ae4236)

  4. I would remind stef that the Constitution is not a suicide pact.

    Another Drew (f9dd2c)

  5. Ooh, that 12:16 comment at the stubborn facts website is real good. This sort of standing doctrine would gut a lot of preemption.

    stef (9abde3)

  6. I find it interesting that some people think the people illegally in the country should be allowed to sue the states and cities for denying their rights to services, etc.

    By what chain of logic can you defend mandating services to people who are violating the law by simply being in the location where the services are being offered? And since it is already a violation of federal law to knowingly harbor or assist a person known to be in the country illegally to stay in the country, under what circumstances can you justify allowing said illegal to use the courts to try and negate the localities right to deny services (not mandated by federal law) to these illegals? Seems that the courts would then be requiring landlords, employers, etc to violate federal law.

    Also, I have seen many people state that it is the federal government’s right to enforce immigration laws to whatever extent the administration chooses. I would contend that it is the federal governments responsibility to enforce the laws on the books or to remove those laws from the books.

    I seem to remember that one of the few responsibilities mandated to the federal government by the Constitution was the security of our border. Enforcing immigration laws is a vital part of that responsibility. Either change the law or enforce it. But don’t sit back and do nothing. That is both abdicating the responsibilities entrusted to the government and violating the trust of the United States citizens.

    And in the absence of action by the federal government, the states have the responsibility to step up and enforce the laws at the local level.

    I applaud this judge for looking at a situation and saying “this is wrong”. If more judges actually used judgment when evaluating the cases coming before them and then tossing the ones that are on their face both ridiculous and frivolous, we would have a much better society.

    I am sorry that the legal system has gotten to the point where there is even an argument over whether this judge made the right decision. It seems like common sense is not welcome in the courtrooms any more?

    Jay Curtis (8f6541)

  7. Jeez, stef.

    If the hash fiend was violating the law by being in the state in question, would they have standing to challenge the state law on hash-quaffing, or would their illegal presence affect their standing?

    In other words, if the illegal immigrants were complying with the immigration laws by residing in their country of origin, would they have standing?

    Do tourists have standing to challenge state or federal laws?

    Does a citizen of Kuwait, residing in Kuwait, have standing to challenge Oklahoma’s immigration laws?

    Does their sneaking into the country illegally and taking up residence in Oklahoma in violation of immigration laws grant them standing?

    I don’t think taking a position on standing in this case is weak – neither is it separate from “the merits.”

    On the other hand, there would be an advantage in some ways to seeing the court ruling a simple “no” on this issue, though that would involve extensive legal and press-release cross-whimpering and considerable expenditure.

    Merovign (4744a2)

  8. “I don’t think taking a position on standing in this case is weak – neither is it separate from “the merits.””

    The judge came up with a novel theory for denying standing. One the doesn’t fit in with other theories of denying standing that the supreme court recognizes. One that is based on a principle of equity overriding the Constitution. That’s whats weak. That he didn’t take this argument to the merits, just tossed it based on his new theory of prudential standing that doesn’t match how theories of prudential standing are made.

    That is weak. I urge people to think about the consequences — that comment at 12:16 at the link starts to get to it.

    stef (a8cb99)

  9. Reading what stef thinks is logic makes me thing a 1000 monkeys at a typewriter would come up with better logic.

    PCD (c378fd)

  10. Did you understand the concept of clean hands stef?

    daleyrocks (906622)

  11. “Did you understand the concept of clean hands stef?”

    I certainly do. I’m not convinced that it wins out on standing. Not convinced that an equitable concept not in our constitution so overrides the constitution that it precludes even standing for a constitutional claim. Check out the comment at the link. Do you think ‘unclean hands’ bars the federal preemption in those cases? Do you understand those concepts?

    stef (e4ad57)

  12. Fining/de-licensing businesses who are in essence abetting people who are violating federal statutes does not preempt the federal interest in prosecuting the violaters themselves. They are related but seperate acts.

    Taltos (4dc0e8)

  13. “Fining/de-licensing businesses who are in essence abetting people who are violating federal statutes does not preempt the federal interest in prosecuting the violaters themselves. ”

    Preemption works the other way. Federal law preempting state law. I’m referring to the comment at the link, posted at 12:16.

    stef (ff0b3d)

  14. Stef – Simon’s theory is that the laws need to be challenged at the state level before they are challenged at the federal level. Suing to repeal immigration laws over which they will benefit from the repeal of is similar to someone charged with insider trading suing to get the insider trading statutes changes so that the crimes go away. In the latter there may be standing, but the individuals hands may be dirty. I see the possibility of others than illegal immigrants being able to sue to repeal the Oklahoma statutes, unlike the commenter, someone with clean hands. Consider a spouse here with a green card whose spouse is about to be deported.

    I thought you would be unable to consider reasonable arguments, just as you have on other threads.

    daleyrocks (906622)

  15. stef – Please explain why those two hypos in the 12:16 have any relevance to the decision in this case.

    daleyrocks (906622)

  16. The “comment at the link, posted at 12:16” has no bearing on the issue at hand. The states in question aren’t trying to carry out immigration policy, they are trying to errect barriers to make it less attractive for people to help illegals violate said policy. The fact that illegals have an appreciably detrimental effect on state services gives them a compelling interest to do so.

    Taltos (4dc0e8)

  17. “Consider a spouse here with a green card whose spouse is about to be deported.”

    Are they helping their spouse stay in this country? And that is not “unclean hands” ? So maybe the legal resident spouse of those aliens would have standing if the Oklahoma law drives their undocumented spouses away?

    “stef – Please explain why those two hypos in the 12:16 have any relevance to the decision in this case.”

    They are an example of “unclean hands” barring standing to make a constitutional claim, just like here. Its the exact same principle: that one in violation of one law cannot challenge a second law if conforming to the first law would bring one in compliance with the second law. Except there its about businesses being regulated by liberal California, and not Mexicans being regulated by conservative Oklahoma. Maybe that makes a difference to some. To me, the polluter has dirty hands.

    stef (688568)

  18. “The states in question aren’t trying to carry out immigration policy, they are trying to errect barriers to make it less attractive for people to help illegals violate said policy. The fact that illegals have an appreciably detrimental effect on state services gives them a compelling interest to do so.”

    And in the comment California has a compelling interest in stopping pollution in its borders.

    What you are arguing is the merits of these laws though. Not standing. I don’t get into whether states can or cannot act to enforce immigration laws or nudge along compliance with immigration laws. I just get into whether there is standing to challenge such a state activity.

    stef (8bb588)

  19. Again, stef simply knows better than everyone else. Bow to her unerring analysis.

    JD (0c5b67)

  20. stef – Part of the quote Simon provides from Scalia summarizes it nicely:

    “The ‘unclean hands’ doctrine ‘closes the door of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.'”18”

    You say “But it does seem weak to wipe it out on standing, rather than at the merits.” That’s the way the cookie crumbles. If litigation can’t move past the standing hurdle, merits do not even get discussed. That’s what just happend to Joanna Diggs Taylor’s opinion on FISA that got appealed to the sixth circuit. It got overturned on standing, as was expected, and the Supremes just turned down cert.

    You need to try listening for a change.

    daleyrocks (906622)

  21. But, listening is so hard!

    Another Drew (f9dd2c)

  22. “If litigation can’t move past the standing hurdle, merits do not even get discussed.”

    So this means that “unclean hands” is a doctrine of standing, not merits. If so, then it wouldn’t be a new prudential rule of standing this judge was “recognizing.”

    I don’t think its the case that unclean hands is a doctrine of standing. Standing can’t be waived, for example. But I suspect that unclean hands can.

    stef (861715)

  23. stef is right. my hands were dirty last night, and I still waved at my pals when they drove by.

    Jem (4cdfb7)

  24. JD:”Again, stef simply knows better than everyone else. Bow to her unerring analysis.”

    Whats your take on the preemption hypos at the link? something insightful like “the constitution is not a suicide pact”? Or perhaps a conclusive declaration of the 1000-monkey-like ability of the writer of the hypo?

    stef (665bbf)

  25. stef is right, here. Standing is a component of “case or controversy” for Article III jurisdiction and it only relates to a litigable cause of action with parties who stand to gain or lose a real and not speculative, direct, personal, lawful benefit from the judgment. The determination that a party has “unclean hands” is a judgment on the merits and necessarily implicates that the Court had jurisdiction to render that judgment and therefore the person against whom it was rendered had standing.

    nk (669aab)

  26. Did you guys read Simon’s post?

    Patterico (3ff252)

  27. stef – I am not a lawyer, and as such, I do not sit around and make proclamations as to whether or not something should be prudential, or who has standing. The idea of not having standing due to having dirty hands appeals to common sense. Arguments like this one where an illegal alien is attempting to circumvent the law, yet again, do not sit well with non lawyers. Maybe you enjoy the idea of sitting around with your ACLU friends, drinking your double decaf lattes, and figuring out legal loopholes to keep illegal aliens in the States. This is why lawyers rank slightly ahead of journalists in public opinion polls.

    FWIW, Patterico, WLS, DRJ, Justin, nk, SPQR – I apologize for the lawyer jab. stef epitomizes why us rubes have an ill opinion of the profession. Note I say the profession. You, and others, are exceptions, and bring honor to a once noble calling.

    JD (868cea)

  28. It still remains a standing issue according to Simon. It survives a constitutional standing test relating to a motion to dismiss, but fails the prudential standing test, which would have discussed merits and equitable remedies.

    See below:

    That injury the court will buy: “loss, or imminent loss, of one’s apartment or rental house is an actual or concrete injury, and the allegation that this injury was caused by § 446 is enough to survive a constitutional standing analysis at the motion to dismiss stage.”

    II.

    But having found Article III standing for specific plaintiffs, the court nevertheless finds that these plaintiffs cannot satisfy prudential standing requirements, and concludes “that the proper remedy for the injuries alleged by the remaining Plaintiffs — all of whom are in willing violation of federal immigration law — is not judicial intervention, rather, it is simple compliance with federal immigration law.”

    Do the lawyers disagree?

    daleyrocks (906622)

  29. “The idea of not having standing due to having dirty hands appeals to common sense”

    The idea of not winning due to having dirty hands appeals to common sense — thats sort of what equity is like. This is different than standing.

    I welcome what the lawyers have to say about the preemption hypo at the link.

    “Maybe you enjoy the idea of sitting around with your ACLU friends, drinking your double decaf lattes, and figuring out legal loopholes to keep illegal aliens in the States.”

    I think this sort of sentiment is more what is attracting people to this court’s holding than an actual concern for standing.

    stef (1bf27e)

  30. There is a difference between standing to sue for a remedy and law that allows the court to grant that remedy. That a court does not have the power under the law to grant a remedy is not lack of standing on the part of the plaintiff to request it. Access to the courts, whether state or federal, is a long-recognized Constitutional right, limited only by Constitutional limitations. I expect hope “prudential standing” to be slapped down hard.

    nk (669aab)

  31. I’d like to ask everyone to show stef respect and try to respond to what she is saying. The comment at Stubborn Facts to which she refers is an interesting one, and deserves to be discussed.

    Try to keep things on a nonconfrontational plane, OK?

    Patterico (4bda0b)

  32. That a court does not have the power under the law to grant a remedy is not lack of standing on the part of the plaintiff to request it.

    huh? I guess that’s where people get the idea to sue God and such. It doesn’t make sense to me, but I’m not a lawyer.

    Stashiu3 (c8e98a)

  33. nk, I know that he wasn’t seriously trying to sue God, but that the suit was accepted by the court makes his (and my) point… just because a plaintiff can request something doesn’t mean they should be allowed to. But again, I’m not a lawyer.

    Stashiu3 (c8e98a)

  34. It’s an entirely different question Stashiu. I can’t imagine that any action against God would lack subject matter jurisdiction but personal jurisdiction and venue are entirely different matters. 😉 And if sovereign immunity ever applied ….

    nk (669aab)

  35. Ok, there are a number of summary motions for meritless suits. It seems to me that a motion for judgment on the pleadings or motion for summary judgment are the appropriate ones for “unclean hands”.

    nk (669aab)

  36. bwahahaha… comment of the day. 🙂

    It just seems like they’re asking to be protected from the consequences of breaking Federal Immigration Law. I don’t get why it shouldn’t be summarily dismissed as an attempt to suborn the court into aiding and abetting a crime.

    As an aside, stef’s dishonest smear of W.F. Buckley as a racist on the thread to honor the man… well, I can understand some hostility towards her arguments if they’re of the same quality. Just sayin’

    Stashiu3 (c8e98a)

  37. It seems to me that a motion for judgment on the pleadings or motion for summary judgment are the appropriate ones for “unclean hands”.

    Hey! I’m not a lawyer, but maybe I can play one on TV… got that one right! 🙂

    Stashiu3 (c8e98a)

  38. No, Buckley was not a racist. He threw the Birchers out of the conservative movement and when he did it, it was Republicans who were passing the Civil Rights Act of 1964 while Democrats were voting for Wallace for President. But I’m not that old. I started with a different baseline and Reagan is my “godfather of conservatism”. Again, may God bless his soul.

    nk (669aab)

  39. “That a court does not have the power under the law to grant a remedy is not lack of standing on the part of the plaintiff to request it.”

    Actually it is. But clean hands is something that the court has discretion to exercise, so its not so much that the court lacks power, but that it chooses to not use its power for the plaintiff. That means it decides on the merits, not standing.

    No one is willing to discuss the preemption hypo? Yet they’re all certain this court is correct ?

    stef (688568)

  40. 39, No, stef, we are convinced that we are right and that you are so wrong that it isn’t worth discussing anymore.

    PCD (c378fd)

  41. I’d love to discuss it, but I find I have so little regard for you I would be unable to show you any civility or respect as Patterico has asked.

    If NK or Patterico or DRJ would care to put the matter forth, entirely independant from you, and where you to keep you trap shut, I’d be more than willing – eager, even – to get into it.

    Alas, such is not yet the case.

    Scott Jacobs (fa5e57)

  42. Forget discussing the immigrants. Lets talk just about the preemption hypo. No need to get worked up over immigration. Instead get worked up over california regulating a polluter in contravention to federal law protecting upright businesses.

    “I’d love to discuss it, but I find I have so little regard for you I would be unable to show you any civility or respect as Patterico has asked.”

    That’s pathetic. Weaker than this new standing doctrine the court invented.

    stef (bafb18)

  43. If I steal your laptop and hook it up to my network and a virus from your laptop infects my network and trashes all my computers and loses all my data can I sue you for the damage?

    kimsch (2ce939)

  44. stef #39,

    I defer. What I had in mind were situations like habeas corpus where exhaustion of direct appeals and state collateral remedies are prerequisites and even jurisdictional under the AEDPA but I never thought of it as a question of standing. Are the lines between election of remedies, subject matter jurisdiction, ripeness and standing that blurred?

    nk (669aab)

  45. #45

    Interesting video. Some of his points make sense like the running of a red light to get medicine for a sick child. We would all do that. It is called taking a risk knowing full well what the penalty for getting caught would be and being willing to pay that penalty if caught.

    But should we use that argument as the basis for never enforcing red light laws? Can you say red herring? It is a nonsense argument.

    America has laws about immigration and policies on how to handle it. Those laws are created created by Congress in response to the demands of special interest groups. Because of pandering to those demands, what started out as relatively straight forward rules became an impenetrable maze of contradictory, confusing rules that nobody fully understands. We then have Congress creating a budget that does not allow enough agents, courts, etc. to enforce those laws and rules in a timely manner. And a President who has forgotten that he is the President of the United States, not of North America.

    Yes, we need comprehensive immigration overhaul. But this should not include giving the rights of citizenship to all the people who are here now in violation of our laws. Those who are willing to violate our laws as their first action of entering our country are not people I want here.

    Secure the border. And I mean positive control, not this “virtual fence” that has proven to be worthless but cost more than $86 million so far for 28 miles.

    Enforce the laws against hiring illegals and punish the people doing the hiring.

    Revoke the law that makes it illegal to fire someone who has provided a false social security number in order to get hired.

    After this has been done, throw out the existing immigration laws and start fresh with a few simple laws. There is no need to write a 3000 page law to cover who is allowed to immigrate and when.

    Set a quota of how many people we want to allow into the U.S. in a given year. Divide that number up into a quota per month. Set aside a certain percentage for high tech workers, etc. Set aside another group for family reunification. Remainder are pulled from a random lottery.

    Requirements to immigrate are disease free, English proficient, have a sponsor put up a large bond to guarantee that the immigrant will not be getting government subsidies. Application for government subsidies in the first 5 years causes immigrant to lose eligibility to stay in the country.

    Do those rules seem harsh? Those are very similar to what the rules were less than 100 years ago.

    Jay Curtis (8f6541)

  46. “Those who are willing to violate our laws as their first action of entering our country are not people I want here.”

    You’re ignoring Army’s whole point. There’s a certain group in America (you appear to be one of them) who love to act like illegals bad people, just because they’re breaking laws that are terrible, unfair, stupid, and preventing them from obtaining gainful employment.

    In other words, these people are mad at the guy in Army’s story who drove through the always-on red light at 2 a.m. to buy medicine for his baby. These people are trying to charge that guy with criminal recklessness — his sick baby be damned.

    And you’re joining them. Why do you blame the immigrants for breaking laws that are unfair and don’t work? The only answer I can think of is that you like the effect of those laws. You don’t want the guy to get medicine for his baby, because that might make it a little harder for you to find a job. Or maybe you just don’t like the color of his skin, or the fact that he speaks another language.

    Point is, you support bad laws, because you like the effect those bad laws have on people you aleady don’t like. Breaking immigration laws is just an excuse, to justify your already-existing hatred for poor people from other countries who come here to make a better life.

    Phil (6d9f2f)

  47. #47 – that is so typical of the open borders crowd. just go straight to racism and ignore the many many legimate reasons to restrict immigration and enforce immigration laws.

    chas (fb7ad4)

  48. Why do you blame the immigrants for breaking laws that are unfair and don’t work?

    On my part, because

    Twas brillig, and the slithy toves
    Did gyre and gimble in the wabe:
    All mimsy were the borogoves,
    And the mome raths outgrabe.

    Sorry, poor Phil. I just refuse to engage your unique reasoning.

    nk (b63350)

  49. Phil,

    You like to accuse others of racism because you are a closet racist, and you deal with that fact by accusing others of racism. You probably can’t even admit it to yourself.

    Patterico (4bda0b)

  50. stef,

    I think the judge’s standing argument makes good common sense, but may or may not be good legal doctrine. So take my arguments and examples with that understanding; I’m talking out loud and debating for the fun of the debate.

    Let’s look at Pat’s hypo from Stubborn Facts.

    For these two hypos, let’s assume that the EPA has set a preemptive rule for emissions of Toxin X at factories across the country. The federal rule sets the limit at 10 ppm of Toxin X. Polluter, Inc. has a factory in California which emits 11 ppm of Toxin X. The federal maximum fine is $10,000 per day.

    Hypo 1: California sets an emission standard of 5 ppm. Polluter files a federal declaratory judgment action that the Califoria rules are preempted by federal law and thus unconstitutional. Can California invoke this “clean hands” prudential abstention doctrine, since Polluter is also in violation of federal law?

    Hypo 2: California doesn’t adopt a stricter emission standard, but adopts a rule that imposes a maximum fine of $100,000 per day for any company which violates the federal emission limit for Toxin X. Polluter files a federal declaratory judgment action that the California fine is unconstitutional. Would this doctrine require abstention?

    I don’t think these hypos translate. I think it would translate to the real-life example only if we assume federal immigration law says that if the company violates the law, it has no right to do business in the U.S. Now, assume also that the company a) admits in its complaint that it is in violation of the federal law in question, and b) has no argument challenging that federal law or its penalty.

    In effect, the company is conceding that, under federal law, it has no right to do business here.

    In that case, I think the court could properly tell the company: your remedy is to comply with federal law and stop doing business here.

    Let’s take a different example: that I am a burglar on your property. Now, in a previous thread you asked: “So I can torture and rape a trespasser, and you’d let me off?” And obviously the answer is no. If I am a burglar and you capture me and torture me, I can sue you — even though you would be unable to torture me but for my illegal trespassing.

    BUT.

    Let’s say there is a state law that says the state may confiscate your personal property without compensation. The only piece of personal property I own is a necklace, which I burglarized from your house.

    I file suit and admit in my complaint that I burglarized your house and stole your necklace. Now, I complain, the state wants to take it away from me without compensation. I make no challenge to the burglary laws, and my complaint constitutes a judicial admission that I stole your necklace without justification.

    Why isn’t the answer to the burglar plaintiff: you may not sue over that. Go wave your unclean hands at someone else.

    The only argument I can see against this is the overweening federal preemption — the suggestion that the federal government can, through discretion, basically invalidate a law on the books by choosing not to enforce it. I recognize that some courts have bought off on this idea doctrinally; it’s how Proposition 187 got killed here in California.

    My question is: how far are we going to take this?

    If LAPD sets up a task force to arrest the FBI’s 10 Most Wanted, and there are warrants out for the suspects, is LAPD violating federal law because the feds might choose simply not to arrest these people, and who is local government to interfere?

    Can states not condition driver’s licenses on legal immigration status?

    If the federal government decides that the FDA is not going to act in the face of a known crisis where a certain company is known to be selling poisoned food, are states violating the Supremacy Clause by taking steps to protect their own citizens from this poisoned food?

    If an illegal is in jail, does a local law enforcement official violate the Supremacy Clause by calling ICE to let them know — because how dare local law enforcement interfere in this federal issue?

    And so on.

    I just think this notion is ludicrous that local entities can’t act to aid the federal policy of discouraging illegal immigration, based on the idea that the federal government might simply choose to let lawlessness run rampant in this area.

    What do you think? I’d like to get Pat and Simon in on this too. I’ll leave a comment directing them here.

    Patterico (4bda0b)

  51. #47

    I don’t know why I bother.

    “Interesting video. Some of his points make sense like the running of a red light to get medicine for a sick child. We would all do that. It is called taking a risk knowing full well what the penalty for getting caught would be and being willing to pay that penalty if caught.

    But should we use that argument as the basis for never enforcing red light laws? Can you say red herring? It is a nonsense argument.”

    I didn’t miss his point at all. I just reject the premise that we should just throw in the towel and not enforce our laws while we work to revise them into a more logical, simpler and more workable system. And crossing the border is illegal, the illegal immigrants know this going in and they know the penalty for doing so if they are caught.

    Based on this, just like if I run a light, there will be a price to pay.

    So forget the straw man argument and try to focus on the gist of the issue.

    And, Phil, I am constantly amazed at what you can deduce about a person based on your misrepresentations of their statements. After reading all the allegations against me, I was starting to wonder if we were reading the same message. Could I really be such a mean spirited, bigoted, hateful, racist person? Or was that just projection of your values and beliefs onto others?

    Jay Curtis (8f6541)

  52. Could someone please point to a law that has been signed or to some legal authority that allows the government to simply ignore laws that are on the books? I understand prosecutorial discretion, but with out issuing a written presidential directive, can the federal agencies simply decide not to enforce laws that are on the books? What is the legal basis for this?

    I also wonder how the argument of immigration being the sole responsibility of the federal government would even come into play here. The state is not passing new laws limiting immigration, they are simply implementing laws punishing people and companies for violating laws that are already on the books. i.e. aiding and abetting someone know to be illegally in the country.

    Okay, lets look at another example. There are federal laws governing gun ownership. Since the government has seen fit to make laws on this subject, would states and cities be permitted to make laws further limiting gun ownership? Why are these two situations different?

    Jay Curtis (8f6541)

  53. I believe that the Supremacy Clause notwithstanding, federal preemption must be clearly stated in a duly enacted Act of Congress. Even when Congress has the Constitutional power to impose a uniform rule of naturalization. There is that pesky Tenth Amendment after all. I don’t believe that the States are required to guess whether federal preemption has limited their sovereignity.

    Also, I represent landlords and restaurant owners. Were there to be a law that they could not rent or sell food to illegal aliens, would they not have access to the courts to say, “It’s my property and my Philly cheesesteak and it’s my right to shelter and feed any human being on any terms he and I may agree on”? Or would the court say, “You have no standing to argue this Mr. Landlord and Mr. Restaurant Owner because your tenants or customers would not be freezing or starving if they had not entered our country illegally”?

    In short, I don’t think “standing” means what Stubborn Facts thinks it means.

    nk (b63350)

  54. But should we use that argument as the basis for never enforcing red light laws? Can you say red herring? It is a nonsense argument.

    Go ahead and move the goal posts. Never said don’t enforce existing laws. I said don’t chase after the guy who broke the law that didn’t work, and try to heap on additional punishments like reckless driving.

    That’s a perfect analogy, because in this case we’ve got states making new laws to punish people who broke the laws that didn’t work.

    This isn’t about giving up on enforcing existing laws. It’s about adding penalty after penalty, and expending large amounts of resources, all to “punish lawbreakers” who are doing exactly what we’d do in their position.

    And crossing the border is illegal, the illegal immigrants know this going in and they know the penalty for doing so if they are caught.

    Do they really know the penalty? What is the penalty? That people like you and Patterico are going to spend their days dreaming up new ways to punish them for crossing the border, and new ways to deport them if at all possible?

    They know they’re breaking one law, a law that is aimed specifically at keeping them in poverty and preventing them from finding work.

    What they don’t know is that, upon entering the country, they’re going to be blamed for every social ill from drunk driving to higher taxes by certain xenophobes in the U.S.

    Based on this, just like if I run a light, there will be a price to pay.

    Right. But is that penalty going to be, as I said above, having people dog you for years trying to pass new laws to deny you as many rights as possible? Come on. The penalty will be a ticket, and you’ll go on your way. You won’t be dubed a “red light runner,” and hounded at your job, your home, and everywhere in between for causing most of the economic ills of America.

    Phil (6d9f2f)

  55. “It’s my property and my Philly cheesesteak and it’s my right to shelter and feed any human being on any terms he and I may agree on”?

    “It’s my house and food and it’s my right to shelter and feed a former-friend who is a convicted murderer who escaped from prison on any terms he and I may agree on?”

    Only a difference in degree.

    Stashiu3 (c8e98a)

  56. Right. But is that penalty going to be, as I said above, having people dog you for years trying to pass new laws to deny you as many rights as possible? Come on. The penalty will be a ticket, and you’ll go on your way. You won’t be dubed a “red light runner,” and hounded at your job, your home, and everywhere in between for causing most of the economic ills of America.

    Straw man alert!

    The penalty for illegal entry to the country is and should be deportation: reversing the illegal act. It’s a bad analogy to say that the illegal alien would just go on his way, like someone who has run a red light, since the penalty for running a red light does not involve removing the driver from the road.

    A better analogy for your red light runner would be this:

    Suppose after running the red light, he slams into another car, seriously injuring its driver and passengers. Should the red light runner be punished only for running the red light? After all, we don’t want to heap penalty after penalty upon him. And God forbid we call him accident causer for the rest of his life.

    Steverino (e00589)

  57. Jay Curtis,

    Just to further analogize with the red light hypo; Let’s say that the always-on red light just happens to be the only way in and out of a particular part of town. It’s always red.

    You want the whole police force on high alert watching that one broken red light that never changes, to make sure that everyone who drives through it gets a ticket, every time, so that eventually they lose their license, get charged with felonies, etc.

    I’m suggesting we fix the light, ignore the damn light, or remove it. In rebuttal, you say “you’re just giving up on enforcing the law!”

    Pardon me if I’m being presumptuous by wondering if you have something against the people driving in and out of that neighborhood.

    Phil (6d9f2f)

  58. Suppose after running the red light, he slams into another car, seriously injuring its driver and passengers.

    There you go again, equating breaking the broken, ineffective law with committing some heinous crime.

    And you wonder why I suspect there’s more to your animosity than simply wanting to “enforce the law.”

    Phil (6d9f2f)

  59. Pardon me if I’m being presumptuous by wondering if you have something against the people driving in and out of that neighborhood.

    And Phil plays the racist card again, big surprise. Yes, you’re being presumptuous. Also, there’s nothing wrong with the laws as written, only the enforcement, so your always-on red light analogy is flawed from the start. Simply asserting the same tired rhetoric and race-baiting doesn’t change that Americans are tired of the problems caused by illegal aliens. My wife is a legal immigrant and now a citizen. My two daughters are adopted legal immigrants who may become citizens. They don’t like illegal aliens either.

    Stashiu3 (c8e98a)

  60. “My two daughters are adopted legal immigrants who may become citizens. They don’t like illegal aliens either.”

    – Stashiu3

    Why’s that?

    Leviticus (3c2c59)

  61. Stashiu #53,

    I didn’t say that, in the end, I have a right to do it. I said that I had a right to access to a dsinterested court and to a fair trial to hear my side of it and to determine whether I have a right to do it. Otherwise the statute is a bill of attainder, a legislative determination of guilt, outlawry.

    BTW: In Ilinois, it is not a crime to harbor an escaped prisoner who is a relative of the first degree i.e. spouse, parent, child, sibling.

    nk (b63350)

  62. But let’s take the opposite side of this. I, the landlord, get sued for renting to an illegal alien. I point to the court’s opinion that says I have no standing and say, “I’m immune from suit. This court has said that I do not come under the law and have no interest in this litigation. As far as this statute is concerned, I am invisible to the courts”. Would it work?

    nk (b63350)

  63. And my #62 should have said *Stashiu #56*. Is it my eyesight or the spam filter again?

    nk (b63350)

  64. And Phil plays the racist card again, big surprise.

    It doesn’t have to be racism per say. I call it xenophobia because at the very least, it’s an irrational dislike of a group to which you do not belong and do not identify with.

    My point is not that people who are up-in-arms about illegal immigrants dislike the immigrants becuase they dislike Mexicans. They might be perfectly neutral in their judgements of people by skin color.

    But they do have a high level of fear/hatred/suspicion of this group of people who is in a different economic/social/political strata. They want them stopped/punished/banished. And when asked to justify it, the answer is basically “they’re lawbreakers!”

    My point is that this isn’t the real reason. You guys aren’t out crusading to have speeders penalized by taking their licenses away. You aren’t out demanding that agribusiness comply with every FDA regulation or have their corporation dissolved.

    But you seek harsh, extreme punishments and ostracism for this one group of “lawbreakers” whose “crimes” are, as far as I can tell, no worse than the speeders and breakers of FDA regulations. Why?

    Phil (6d9f2f)

  65. Phil is right. Anyone that wishes to enforce the immigration laws is a racist that wishes to oppress these people, and keep them in poverty. Actually enforcing our own laws, and borders, is racist.

    JD (75f5c3)

  66. Levitcus,

    They went through the process to stay within the law and don’t believe that others should be able to get away with ignoring it.

    nk,

    Point taken sir, you did specify access. Now, if they wanted access to contest their own deportation, that is a different question. To allow access challenging legislation on the grounds it makes it harder for them to break the law? Can’t see it.

    I don’t think anyone is invisible to the courts (unfortunately… I’d pay for that E-ticket, heh)

    Illinois you say? Interesting, I wonder how well that works out for them. Between that, Chicago politics, and the state’s gun restrictions… not.moving.there.ever. 🙂

    Stashiu3 (c8e98a)

  67. Is it xenophobia to have a rational dislike for people that cross our borders illegally?

    JD (75f5c3)

  68. Just as an example, what if suddenly a law was passed that everyone born in the state you were born in had to drive at 50 percent of the speed limit for everyone else. Say I broke that law, because (1) it made me nervous to see people flying up behind me, and (2) I felt it was unfair that I had to spend twice as much time driving as everyone else.

    Would I be a heinous criminal? Would you compare me to a murderer, a kidnapper, a burglar?

    That’s how these “illegal aliens” are treated all the time — for violating laws that are just as discriminatory, ineffective and unfair to them.

    Why does the fact that they break these laws incense you so? I can’t believe it’s just that you’re obsessed with enforcing the letter of the law.

    Phil (6d9f2f)

  69. Why is it that you insist on equating the enforcement of our border security and immigration policy with traffic control?

    Your inability to believe our stated intentions is all on you.

    JD (75f5c3)

  70. My point is that this isn’t the real reason.

    And your point is wrong. Dead wrong. I do just as much about habitual speeders as I do about illegal aliens… report them if I see them (more for the speeders in fact, I occasionally flip them off before reporting them.)

    If I went ballistic over every wrong out there in the world, I wouldn’t be any different than the moonbats in California and such. I speak out about the issues I care about, less about the ones I don’t. You won’t hear a lot from me about abortion for just that reason… I am conflicted about the issue and don’t really care enough about it to lobby one way or the other. Same thing with a host of other issues, I pick my battles.

    Illegal aliens is one such issue. Just because I care more about that issue than some other you bring up doesn’t make me a hypocrite. It makes you a moral relativist who assumes everyone else is a racist because you’re afraid that you’ll be found out as one yourself. Too late, thou protesteth too much and are revealed. Sad really.

    Stashiu3 (c8e98a)

  71. Phil…why can’t the law simply be enforced?

    If the law were bad, it would already have been challenged and changed in the court system.

    Since that has not happened, those of us here are not opposed to simply enforcing the law.

    reff (bff229)

  72. My point is not that people who are up-in-arms about illegal immigrants dislike the immigrants becuase they dislike Mexicans.

    This may be a little tough for you to wrap your head around, Phil, but I don’t dislike Mexicans in the least. I know plenty of wonderful Mexican people and my life is richer because of them. And yet, I want our borders and our laws respected, and people who fail to do that start out with a strike against them in my eyes, not because of their heritage, but because of their disrespect for out sovereignty and our laws.

    I know, very complicated stuff, that. It’s much easier to just scream “Racist!” and then when called on the foolishness of that to say “Well, xenophobe!” You’ll notice I said “easy” and not “accurate” or “wise”.

    Pablo (99243e)

  73. But you seek harsh, extreme punishments and ostracism for this one group of “lawbreakers” whose “crimes” are, as far as I can tell, no worse than the speeders and breakers of FDA regulations. Why?

    I’m pretty sure you don’t understand the meanings of “harsh” or “extreme”, or else you would not be using them here.

    And equating illegal immigration with speeding or violating FDA regulations is argumentum ad absurdum. The two sides are not equal, and it’s dishonest of you to pretend they are.

    It’s this simple: there are rules which indicate how to come to this country. Those that violate them are being grossly unfair to those that obey them. So the rule-breakers get sent out of the country. There they can try to follow the rules for entrance.

    Please explain what’s “harsh” and “extreme” about that.

    Steverino (e00589)

  74. And you wonder why I suspect there’s more to your animosity than simply wanting to “enforce the law.”

    Apparently, you don’t know what “animosity” means, either.

    By the way, it’s not about “enforcing the law”, it’s about securing the borders. I don’t believe in open borders, but I do believe in allowing as many immigrants as is practical. Please don’t construe this as me saying that zero immigrants is “as many as is practical”.

    Steverino (e00589)

  75. OK, I’ll take a break for a while. When I start repeating myself only to have the same misinterpretation of my comments reflected back, I know we’re wasting time.

    One of the reasons I often return to the racism comparison is because of the incredibly strong criticism I get from you folks every time I suggest that maybe we should ease up on the illegals a bit.

    Trying to get a rational discussion with anti-illegal-immigration folks certainly feels like debating the rationality of segrigation at a KKK rally. There’s just no way to question the intensity of their enthusiasm for segregation by talking about practicalities, or the point of view of people of other races. Races should be completely segrigated. Anyone who disagrees is basically advocating anarchy, crime, and de-evolution of the human race. Those who move to the front of the bus are lawbreakers and should be arrested, no questions asked.

    Same goes for illegal immigration. It’s a foregone conclusion that there should be a wall, to keep the grubby poor foreigners out. The fact that they enter this country anyway can’t be anything but a bad thing. The only question ever asked is, can we build the wall higher, and keep more of them out? How can we deport more of them, increase the penalties upon them?

    Phil (6d9f2f)

  76. Patterico, in response to your reply to my hypo…

    Let’s take your burglar example, where the burglar files suit over the necklace he admits he stole from me. I think the court CAN say “you can’t sue for that,” but the issue is not one of standing. Rather, to use federal parlance, the proper remedy is 12(b)(6), failure to state a claim upon which relief may be granted. That can get the complaint kicked just as easily and quickly as a standing determination, without creating a new prudential standing doctrine.

    Let’s adjust your burglar hypo slightly, and assume that it’s not clear from the face of the petition that the necklace was stolen property, or that the possessor of the necklace was aware it was stolen (it was, and he did, but those facts just aren’t apparent from the face of the pleadings). As the possessor of the necklace that the state demands back, he clearly has Art. III standing. Is it most appropriate to inquire about the actual ownership of the necklace simply to determine standing? I don’t think so. It is most appropriate to resolve those kind of factual issues at some other stage of the process.

    As to my hypos, I agree that the first one isn’t directly on point (I almost left it out altogether when I posted them). But I do think the second one is very analogous to the illegal alien case. Your reply seems to suggest that illegal aliens are in some sense “contraband,” in the sense that material objects which are “contraband” are not susceptible of legal ownership, by their very nature. But I think under that doctrine, you would be very close to saying that illegal aliens have no standing to bring suit for anything.

    But let’s try another hypo, which might be even closer to the situation and might lead to actual cases which could be applied… felon in possession of firearms laws.

    It is quite common for the feds and the states to prohibit convicted felons from possessing firearms. Moreover, they rely on the determinations of other sovereigns to impose that additional penalty on individuals. Thus, if you are convicted of a felony by the state of Louisiana under its laws, you are prohibited by federal law from carrying a gun, even if Louisiana law would permit you to do so. The federal government is piggy-backing a punishment on a determination made by a state court that state law had been violated. This seems extremely analogous to the immigration case, where the state is piggy-backing a punishment based on a violation of federal law (the only thing different being the lack of a federal judicial proceeding determining that federal law had been violated, in the immigration case).

    Again, I think the answer is to disallow the proceeding on a 12(b)(6) motion. The Court could have held that even if all facts alleged in the complaint are true, it’s simply OK for the state to piggy-back on federal law like that. “Standing” should be restricted to what it has always historically been about, testing whether the plaintiff is actually affected (“injured” or “harmed”) by the action being sued over.

    PatHMV (653160)

  77. It’s this simple: there are rules which indicate how to come to this country. Those that violate them are being grossly unfair to those that obey them.

    Back pre-civil war, some slaves could actually buy their own freedom, on the rare occasion a master let them do so.

    I’m sure pro-slavery folks argued that slaves who escaped were being grossly unfair to those who “bought their freedom.”

    Also, I bet slaves who bought their freedom and moved north were mad to see escaped slaves walking around up there, all free and happy, without having paid a dime to their masters. How unfair!

    Phil (6d9f2f)

  78. Phil, you are running out of straw.

    Seriously.

    Is it your position that people from outside Country A have the unalienable right to move to Country A? Where does this right come from?

    Steverino (e00589)

  79. “I think the judge’s standing argument makes good common sense, but may or may not be good legal doctrine.”

    It makes good common sense that the plaintiffs lose due to unclean hands. It doesn’t make sense that they have no standing because of it.

    “I don’t think these hypos translate. I think it would translate to the real-life example only if we assume federal immigration law says that if the company violates the law, it has no right to do business in the U.S.”

    The point still remains: the company has unclean hands to challenge a state law when it is violation of a federal law in a way that conforming to the federal law would settle its state law problems. Thats the problem to address. I don’t know why you focus on this “no right to do business” stuff.

    “I just think this notion is ludicrous that local entities can’t act to aid the federal policy of discouraging illegal immigration, based on the idea that the federal government might simply choose to let lawlessness run rampant in this area.”

    You’re arguing the merits of what the state is doing, on one particular way that these laws are invalidated — preeemption. There are other challenges that plaintiffs have alleged.

    And you’re not talking about standing. Seriously. People here don’t want to talk about standing. They want to do the “they took our jerbs” bit.

    The situation here is where we

    stef (8a983a)

  80. Is it your position that people from outside Country A have the unalienable right to move to Country A? Where does this right come from?

    I’m not sure what an unalienable right is. As far as I’ve seen, the only truly unalienable right is the right to think what you want about a situation.

    Apparently, you think that by telling me that you’re “enforcing the law” by taking the position on illegal immigration, you’re somehow more moral than if you were just trying to prevent people from seeking gainful employment without using the law.

    The fact that a bad situation is mandated by a law, and you just want that law enforced, does not justify or lend some goodness to an otherwise bad situation.

    In fact, justifying something that’s otherwise wrong by appealing to a law mandating that wrong is, in my opinion, MORE wrong.

    Why? Because you are using the power of the state to enforce a wrong. That, to me, is two wrongs, not just one — first, you’re doing something bad (trying to prevent people from moving about freely and engaging in commerce, because you don’t want the competition/association) and second, you’re using state power as an additional tool to do that bad thing.

    Phil (6d9f2f)

  81. Phil, stop trying to guess what I’m thinking.

    In the first place, I told you specifically that this was about securing the borders. In the second place, my desire to secure the borders has nothing to do with not desiring competition or association, and it’s grossly insulting of you to state that.

    You have claimed that people here are misrepresenting your position, so I’m hoping to get you to elucidate that postion.

    Allow me to repeat: do you believe that someone from outside Country A has the [I’ll use another word here, so you won’t try to weasel around the question] absolute right to move to Country A?

    If so, where does that right come from?

    Don’t weasel, don’t change the question, and for God’s sake, don’t misstate my position. Just answer the question (and the follow-up). If you can’t do that, then there’s no point in trying to discuss this rationally with you, because you’re not interested in a rational discussion.

    Steverino (e00589)

  82. Shorter Phil – I am tired of you pointing out that I am grossly distorting your positions and would much rather you accept that you are all closeted KKKlan members. Filthy racist scumbags wanting to “enforce the law” or “secure the border” which we all know are just racist codes words for oppressing brown people. I think that sums up Phil’s position quite nicely.

    JD (b830c0)

  83. I don’t think there is an absolute right to cross borders. So I don’t have an answer as to where it comes from. But I have a guess for how some believers might reason this.

    Some people think that the rights we have are given to us by God. I would assume God wouldn’t care much for our borders, and would give us the right to cross them just as He gives us other rights like freedom and liberty.

    stef (1d0ada)

  84. God was clearly an advocate of a lawless society, a world where everyone could do whatever they please.

    JD (b830c0)

  85. “God was clearly an advocate of a lawless society, a world where everyone could do whatever they please.”

    He had those 10 pesky rules.

    stef (4a7d71)

  86. JD, that’s certainly an accurate description of Phil’s behavior here. If he is sincere in his statement that he wants a rational discussion, I’ll give it to him. He’s just got to state his position on immigration, and we’ll go from there.

    I’m not holding my breath, however.

    Steverino (e00589)

  87. Allow me to repeat: do you believe that someone from outside Country A has the [I’ll use another word here, so you won’t try to weasel around the question] absolute right to move to Country A?

    And I’ve told you, I don’t think people have absolute rights. We simply exist, and have to relate to each other one way or another.

    Relating to the people on the other side of the U.S. border in the way we do is not a just,fair, sane, good, desireable state of affairs. Our laws essentially lock the people on the other side of the border into a country that has much less opportunity for economic growth and development than exists for those on the other side of the border.

    In so doing, we also deny our own citizens the opportunity to contract with these people on the other side of the border, and to develop beneficial relationships economically and otherwise.

    Is this a violation of any absolute law, or absolute right? I don’t care, to tell you the truth. It’s just foolheaded, cruel, and stupid denial of opportunities for the citizens of both countries.

    And the fact that it’s done under color of law doesn’t change its underlying character.

    Phil (6d9f2f)

  88. Okay, Phil, you don’t want to answer the question. You are not interested in an honest discussion, you just want to call everyone racist or xenophobic. Thanks for making your position clear.

    Steverino (e00589)

  89. Since Phil wants to weasel on “absolute rights”, let’s try asking the question yet another way:

    Phil, do you feel that a person living outside Country A has the right to move to that country, and Country A has no right to restrict his entry under any circumstances?

    Note: this isn’t about the US. This is an abstract question.

    Are you going to weasel for a third time?

    Steverino (e00589)

  90. “Phil, do you feel that a person living outside Country A has the right to move to that country, and Country A has no right to restrict his entry under any circumstances?”

    He already said he didn’t think of it in terms of rights.

    “God was clearly an advocate of a lawless society, a world where everyone could do whatever they please.”

    He did give us 10 rules.

    But like I said, I don’t thikn our rights come from god, so I don’t have to think about what god thinks about our precious borders.

    stef (e870b9)

  91. Phil,

    Our laws essentially lock the people on the other side of the border into a country that has much less opportunity for economic growth and development than exists for those on the other side of the border.

    We’re a hell of a lot nicer to to people from south of our border than they are to people south of theirs.

    Steverino,

    You are not interested in an honest discussion, you just want to call everyone racist or xenophobic.

    We have a winner!

    Pablo (99243e)

  92. Here’s another idea:

    Phil, give me your home address; I’m moving in. I’m going to bring my family with me. You will provide us with housing, food, clothing, transportation, education, and medical care. (I gotta warn you: my son eats a LOT.) You will do this because you’re not afraid of association or competition, right?

    Oh, you don’t want me to move in? You must be some sort of racist, anti-competition xenophobe. It’s wrong of you to erect walls and doors to keep me out. It’s wrong of you to refuse to provide my family with all the things we need. And it’s doubly wrong that you’re using the laws against trespass and theft to deprive me.

    Steverino (e00589)

  93. Phil, give me your home address; I’m moving in. I’m going to bring my family with me. You will provide us with housing, food, clothing, transportation, education, and medical care. (I gotta warn you: my son eats a LOT.) You will do this because you’re not afraid of association or competition, right?

    Bad analogy Steverino. I’ve got a better one:

    I don’t want you using the public goods I pay
    taxes for, without working. I don’t want you committing crimes, or doing/selling drugs. I don’t want you having a bunch of kids and going on welfare. I don’t want you offering to work for less money than me.

    Therefor, I hereby declare that you are not allowed to leave your house anymore. After all, you have no absolute right to leave your house. And keeping you locked in your house is good for me, because I no longer have to worry about you doing any of the above things.

    Therefor, I have introduced a bill titled the “Protect America From Steverino Act.” I intend to heavily lobby Congress, and lean on particular representatives, to do everything possible — amend the constitution if neccesary — to pass this law to protect me and my children from the dangers of you.

    Once this bill passes, you had better not leave your house. You don’t want to be a criminal, do you? Of course not.

    Phil (6d9f2f)

  94. Phil, I suggest you try. It will keep you out of trouble and has zero chance. Securing the border however, is something a majority of Americans want and will eventually happen. Steverino’s analogy was much closer than yours. He also pays those taxes and has just as much interest in their proper use as you do. Illegal aliens don’t.

    Declare anything you want and see how much support you get, that’s free speech. Getting the support for those ideas, impossible for you.

    Racist.

    Stashiu3 (c8e98a)

  95. What a GREAT idea.

    If all Mexicans were placed under house arrest, they could never leave Mexico because they would be shot by the Mexican police for leaving their homes way before they ever got to the border!

    Shoot, why didn’t we think of this before?

    Adriane (09d132)

  96. He also pays those taxes and has just as much interest in their proper use as you do. Illegal aliens don’t.

    Did you just say that illegal aliens don’t pay taxes? Really? And even to the extent it’s true, do you think they would continue to not pay taxes if they were just treated the same way we treat citizens? Or is their non-tax-paying status generally a function of people like you trying to deny them the right to contract and be employed here in the first place?

    As for Steverino’s analogy of moving into my house; frankly, I’d far prefer that happening to someone doing what I proposed. After all, if someone moves into my house and says “support me and my kids”, all I have to do is say “um, no?”

    On the other hand, if someone passes a law locking me in my house, I’m pretty much out of options.

    Phil (6d9f2f)

  97. Oh, and Stashiu3, what’s the point of saying that I can’t actually do what I threatened to do? Stevereno can’t actually move into my house and leach off me either, unless I let him (and he could let me lock him in his house, so on that level, the analogy works).

    Unless you don’t want to acknowledge that if I COULD do lock him in his house, it’d be pretty damned analogous to what America is doing to Mexico by closing the border.

    Phil (6d9f2f)

  98. After all, if someone moves into my house and says “support me and my kids”, all I have to do is say “um, no?”

    And suppose they keep raiding the refrigerator and taking your car out to run errands and perhaps banging your wife, despite your instructions that they not do those things. Then what? Do you throw them out, racist?

    Pablo (99243e)

  99. As everyone suspected, Phil and his fevered mind are in no way interested in actually having a rational discussion, unless that discussion is America as the bad evil racist oppressor. Clearly he is a globalist and has little use for our laws, statutes, or quaint ideas like national defense. He is either incapable of differentiating between legal and illegal immigration, or is unwilling to. Either way, he is not discussing this in good faith.

    JD (8fd56a)

  100. After all, if someone moves into my house and says “support me and my kids”, all I have to do is say “um, no?”

    What do you think we’re saying? Rather than your misrepresented position of it. It’s ok for you to say no, but not us?

    Your analogy sucks and so does your reasoning. Racist.

    Stashiu3 (c8e98a)

  101. And suppose they keep raiding the refrigerator and taking your car out to run errands and perhaps banging your wife, despite your instructions that they not do those things. Then what? Do you throw them out, racist

    Sure. And I’ll throw him out whether he’s a U.S. citizen or an illegal alien. (or to use your analogy, whether he’s a relative, or someone I don’t even know). What’s the difference?

    And by the way, if you want to keep calling me a racist, that’s fine — but to me, the words “you have no valid basis for that belief,” and “you believe that because you’re racist” are each equaly troubling. Hearing both, however, is just redundant — they aren’t cumulative criticisms.

    Phil (6d9f2f)

  102. Either way, he is not discussing this in good faith.

    JD, we know. It’s just starting to get fun ripping on how clueless he truly is. If he argued in good faith he wouldn’t be able to talk.

    Stashiu3 (c8e98a)

  103. Sure. And I’ll throw him out whether he’s a U.S. citizen or an illegal alien. (or to use your analogy, whether he’s a relative, or someone I don’t even know). What’s the difference?

    The difference is we’re only trying to throw out half of who you advocate throwing out… the illegal ones. Racist.

    Stashiu3 (c8e98a)

  104. What do you think we’re saying? Rather than your misrepresented position of it. It’s ok for you to say no, but not us?

    Carrying your analogy further might best explain what I think you’re saying:

    First of all, not all, or even nearly all of them are eating your food and mooching off you. Many of them are actually paying your rent and improving your house. In fact, a lot of people who DO live there with you ARE mooching, and you haven’t kicked them out.

    Second, you didn’t buy this house, you were just born here. Third, you aren’t even related to most of the people who bought and own this house (and again, a lot of their kdis are mooching, too).

    And fourth, although you didn’t buy this house, are doing less to improve/take care of it than many of the people who have moved in, this house is by far the nicest house around, anywhere.

    So, now that we’ve clarified, what makes you think you should kick all of these people out?

    Phil (6d9f2f)

  105. He is either incapable of differentiating between legal and illegal immigration, or is unwilling to. Either way, he is not discussing this in good faith.

    I’m incapable of telling the difference? Really? So you mean the people I’m saying you should stop treating like crap AREN’T illegal immigrants? Geeze, then what IS your justification for treating them like crap?

    Phil (6d9f2f)

  106. We’re not treating them like crap, we’re kicking them out, as you advocated. I appreciate you coming around to our position on this. Racist.

    Stashiu3 (c8e98a)

  107. Therefor, I have introduced a bill titled the “Protect America From Steverino Act.” I intend to heavily lobby Congress, and lean on particular representatives, to do everything possible — amend the constitution if neccesary — to pass this law to protect me and my children from the dangers of you.

    Bad analogy, Phil. You have trouble with this, as I’ve seen. See, the parallel to this in the world at large would be to tell Guatemalans that they can never leave Guatemala. That’s absurd on its face. The best analogy would be you passing a law stating that I can’t come onto your property and use your possessions. But you’d still be a xenophobic, racist, anti-competition scumbag.

    And if you keep telling me that I can’t come into your house, I’m going to break a window and crawl through it. Try and stop me!

    So you mean the people I’m saying you should stop treating like crap AREN’T illegal immigrants?

    Explain to all of us why we shouldn’t treat an illegal alien like a common trespasser and send him back home?

    Oh, and I notice you haven’t answered my rephrased question. Keep ducking, Phil, you’re showing everyone just what a small mind you have.

    Steverino (2c9e20)

  108. Last time the rights of non-citizens came up, several Patterico commenters seemed to believe that the Constitution was somehow inapplicable: that a foreign tourist (or an illegal immigrant) could be placed twice-in-jeopardy for the same alleged crime, or even enslaved, and that our failure to do so was some sort of ex gratia generosity. This is all rubbish, of course. Centuries of case law make clear that generally speaking except for voting, non-citizen’s Constitutional rights are the same as citizens’. (One could start at Yick Wo.)

    I’m a little worried about laws that put the onus on ferreting out illegal immigrants on private actors like landlords, who probably shouldn’t be expected to understand issues about asylum applications or student visas. I’m somewhat less worried about Oklahoma’s right to pass such a law with respect to state actors, since I support California’s right to exceed Federal pollution standards. But the idea that illegal immigrants don’t have standing to sue (and in this case probably lose) is rather troubling. Under that theory, for example, I don’t see how illegal immigrants would have standing even if Oklahoma authorized them to be shot on sight.

    Andrew J. Lazarus (7d46f9)

  109. Who is treating them like crap? They are breaking our laws.

    JD (a61287)

  110. Hyperbole, thy name is AJL. Like moths to a flame, Phil and AJL are.

    JD (a61287)

  111. Yep, JD, a walking example of Godwin’s Law.

    SPQR (26be8b)

  112. Under that theory, for example, I don’t see how illegal immigrants would have standing even if Oklahoma authorized them to be shot on sight.

    Bit over the top there, AJL. Everyone has the right to due process, which would exclude summary execution. However, this case centers on illegal aliens asking for the State of Oklahoma to allow them to live there, when the federal government has already decreed that they are in the country illegally.

    In other words, illegal aliens being protected from summary execution isn’t the same thing as illegal aliens demanding services that they aren’t entitled to by virtue of their illegal presence in the country.

    Steverino (2c9e20)

  113. JD and SPQR,

    You’re not playing by the rules that Phil has created. You have to call everyone who disagrees with you a racist and they’re not allowed to defend themselves. Now, get with the program.

    Damn racists.
    😉

    Stashiu3 (c8e98a)

  114. Steverino, renting an apartment is not a “service”. But even if it were, I still don’t see where your argument stops. Police and fire protection are quintessentially services, and I can’t imagine that, say, a law prohibiting the fire department from saving buildings occupied by illegal immigrants would be upheld on the grounds that the burned-out aliens lacked standing. Sidewalks are a service. Do you think use of sidewalks by illegal aliens may be criminalized?

    The hyperbole here comes not from my examples, but from the flaws in the standing magic-bullet theory.

    Andrew J. Lazarus (7d46f9)

  115. Let’s take your burglar example, where the burglar files suit over the necklace he admits he stole from me. I think the court CAN say “you can’t sue for that,” but the issue is not one of standing. Rather, to use federal parlance, the proper remedy is 12(b)(6), failure to state a claim upon which relief may be granted. That can get the complaint kicked just as easily and quickly as a standing determination, without creating a new prudential standing doctrine.

    But what if it *does* state a claim? Say, for example, the law says “The state may take property possessed by any citizen without compensation.” The burglar alleges that he possesses the property — and he does; just not legally.

    Let’s adjust your burglar hypo slightly, and assume that it’s not clear from the face of the petition that the necklace was stolen property, or that the possessor of the necklace was aware it was stolen (it was, and he did, but those facts just aren’t apparent from the face of the pleadings).

    OK, we can adjust the hypo if you like — as long as you recognize that the adjustment means that the hypothetical no longer matches the actual facts, in which the reason the plaintiffs have unclean hands (their illegal status) *is*, in fact, apparent from the face of the complaint. The court says so in the decision.

    As the possessor of the necklace that the state demands back, he clearly has Art. III standing. Is it most appropriate to inquire about the actual ownership of the necklace simply to determine standing? I don’t think so. It is most appropriate to resolve those kind of factual issues at some other stage of the process.

    If there is a factual dispute, I wouldn’t resolve it on a motion to dismiss. Here, though, as I just said, there is no factual dispute regarding the fact that the plaintiffs are here illegally and in violation of federal law. So your example is inapposite.

    As to my hypos, I agree that the first one isn’t directly on point (I almost left it out altogether when I posted them). But I do think the second one is very analogous to the illegal alien case.

    OK, I’ll concentrate on the second one, then.

    Your reply seems to suggest that illegal aliens are in some sense “contraband,” in the sense that material objects which are “contraband” are not susceptible of legal ownership, by their very nature. But I think under that doctrine, you would be very close to saying that illegal aliens have no standing to bring suit for anything.

    No, I never meant to suggest any such thing, and I find your use of the word contraband to be confusing and totally off base.

    What I mean to suggest is that in the real life example and in the burglar example, there is an illegal act the plaintiff has done, that is intimately connected to the relief they seek — and the doctrine of unclean hands, per Simon’s post, can therefore kick in to deny an equitable remedy.

    In the real-life example, the illegal act is illegal entry into the country, which makes their status here illegal, which means that the relief they seek is not relief they deserve to be entitled to.

    In the burglar example, the illegal act is stealing the necklace, which makes his possession of it illegal, which means the relief he seeks is not relief he deserves to be entitled to.

    But let’s try another hypo, which might be even closer to the situation and might lead to actual cases which could be applied… felon in possession of firearms laws.

    OK.

    It is quite common for the feds and the states to prohibit convicted felons from possessing firearms. Moreover, they rely on the determinations of other sovereigns to impose that additional penalty on individuals. Thus, if you are convicted of a felony by the state of Louisiana under its laws, you are prohibited by federal law from carrying a gun, even if Louisiana law would permit you to do so. The federal government is piggy-backing a punishment on a determination made by a state court that state law had been violated. This seems extremely analogous to the immigration case, where the state is piggy-backing a punishment based on a violation of federal law (the only thing different being the lack of a federal judicial proceeding determining that federal law had been violated, in the immigration case).

    Again, I think the answer is to disallow the proceeding on a 12(b)(6) motion. The Court could have held that even if all facts alleged in the complaint are true, it’s simply OK for the state to piggy-back on federal law like that. “Standing” should be restricted to what it has always historically been about, testing whether the plaintiff is actually affected (”injured” or “harmed”) by the action being sued over.

    I don’t really understand this example. The law doesn’t seem like a punishment for aliens. Here is Simon describing what the law does.

    In a nutshell, the act’s key provisions: provide criminal sanctions for transportation, concealment, and harboring illegal alien; regulates the creation and issuance of identification documents (and create a state Fraudulent Documents Identification Unit); create a rebuttable presumption when considering a bail application that one determined to be an illegal alien is a flight risk; prohibit the state from contracting with public employers who don’t use a “Status Verification System” to check the federal employement status of new employees; allow citizens who are fired by a company not participating in the afore-mentioned SVS to bring suit against their erstwhile employer if the employer had any illegal alien hired after July 1, 2008 on the payroll; require all state agencies to verify the citizenship of persons applying for state, local, or federal benefits, and make (most) illegals ineligible for post-secondary educational benefits. National Coalition, skip op. at 2-3.

    That sounds more like Oklahoma trying to make it hard to be illegal — not like Oklahoma punishing illegals for being illegal.

    Patterico (4bda0b)

  116. stef:

    “I think the judge’s standing argument makes good common sense, but may or may not be good legal doctrine.”

    It makes good common sense that the plaintiffs lose due to unclean hands. It doesn’t make sense that they have no standing because of it.

    Well, that’s what we’re discussing.

    “I don’t think these hypos translate. I think it would translate to the real-life example only if we assume federal immigration law says that if the company violates the law, it has no right to do business in the U.S.”

    The point still remains: the company has unclean hands to challenge a state law when it is violation of a federal law in a way that conforming to the federal law would settle its state law problems. Thats the problem to address. I don’t know why you focus on this “no right to do business” stuff.

    Because it makes it parallel. The illegal immigrant has no right to be here, and this is apparent from the face of the complaint. The burglar has no right to possess the property, and this is apparently from the face of the complaint.

    Is this really so hard to understand? It’s much more satisfying to debate with people who seem to understand what you’re arguing and respond to it, rather than seeming not to understand fairly obvious points you’re trying to make.

    “I just think this notion is ludicrous that local entities can’t act to aid the federal policy of discouraging illegal immigration, based on the idea that the federal government might simply choose to let lawlessness run rampant in this area.”

    You’re arguing the merits of what the state is doing, on one particular way that these laws are invalidated — preeemption. There are other challenges that plaintiffs have alleged.

    And you’re not talking about standing. Seriously. People here don’t want to talk about standing. They want to do the “they took our jerbs” bit.

    I’m discussing standing along the lines of what Simon argued in his post. The argument raised against his interpretation was the preemption hypos, and I’m responding to those.

    Patterico (4bda0b)

  117. If you have other problems with Simon’s standing analysis other than the hypos, we can discuss that — meaning you should specifically say what the problem is.

    So far, you seem to be limiting your objections to the hypos. So that’s what I’m responding to.

    You also seem to imply that prudential standing limitations cannot apply when one is raising a constitutional claim . . . but you don’t really mean that — do you?

    Patterico (4bda0b)

  118. I think Patterico is right to focus on the prudential limitations of standing as well as the Constitutional issues. For instance, on page 5 of his opinion, Judge Payne cites Warth v. Seldin, 422 U.S. 490, 498 (1975) as primary authority on the question of standing. After reading Warth v Seldin, I think Judge Payne was very faithful to Justice Powell’s analysis in Warth. Here’s a summary of Justice Powell’s analysis (citations omitted):

    “In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. This inquiry involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise. In both dimensions, it is founded in concern about the proper — and properly limited — role of the courts in a democratic society.”

    Later in his opinion, Justice Powell elaborates on the prudential limitation:

    “Without such limitations — closely related to Art. III concerns but essentially matters of judicial self-governance — the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.”

    Of course, there is far more to the analysis than this so you may want to read the Warth opinion.

    DRJ (d8934e)

  119. Right. But is that penalty going to be, as I said above, having people dog you for years trying to pass new laws to deny you as many rights as possible? Come on. The penalty will be a ticket, and you’ll go on your way. You won’t be dubed a “red light runner,” and hounded at your job, your home, and everywhere in between for causing most of the economic ills of America.

    Great analogy, ‘cuz we all know that anyone busted for running one red light pays his fine, takes a point or two on his record, and is then entitled to legally run all the red lights he wants to in the future.

    Xrlq (62cad4)

  120. Racist.

    JD (f44699)

  121. “Well, that’s what we’re discussing.”

    We’re discussing standing. Thats this decision. Its a brand new rule on standing. I dont know what your view is of “activist judges” but I suspect that making a new rule that does not follow the general layout for how these rules get made may fit your definition.

    “Because it makes it parallel. The illegal immigrant has no right to be here, and this is apparent from the face of the complaint.”

    You’re fighting the hypo. I’m not talking about people who have no right to be here. I’m talking about the application of “unclean hands” as a rule of standing. How does the hypo play out? Even if its not parallel, then how does it play out?

    Federal law preempts state law and says companies may not pollute more than 10 ppm. It is punished by 10K a day fine. The company has no right to pollute at 11 ppm. And yet it is. Does it have standing to challenge a preempted state law that punishes pollution above 5 ppm? Does it have standing to challege a preempted state law that punishes pollution above 10 ppm at 100K a day?

    What makes it parallel is that it has no right to be doing what its being punished for: whether that be polluting at 11 ppm or being in this country.

    “I’m discussing standing along the lines of what Simon argued in his post.”

    No. You’re not. Because we have a standing hypo you refuse to discuss because it doesn’t involve hte “no right to be here” angle you like so much about the illegal immigrant scenario.

    And you’re discussing simply the merits of preemption. Not standing.

    “If you have other problems with Simon’s standing analysis other than the hypos, we can discuss that — meaning you should specifically say what the problem is.”

    One is the hypos, which you don’t get. And you just argue against the hypo rather than working it out.

    The other problem is that this new rule of standing doesnt fit in with how prudential rules of standing are made. I cited this in my first comment:

    the animating concern of the various strands of prudential standing is to avoid courts being “called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.”

    None of that is going on here.

    “You also seem to imply that prudential standing limitations cannot apply when one is raising a constitutional claim . . . but you don’t really mean that — do you?”

    I’ve asked whether equity overrides the constitution. Without implication, I rather clearly asked whether people agreed that equity can trump a constitutional right.

    stef (3cd17c)

  122. “Great analogy, ‘cuz we all know that anyone busted for running one red light pays his fine, takes a point or two on his record, and is then entitled to legally run all the red lights he wants to in the future.”

    Or someone busted for driving without a license pays a fine and gets a license.

    stef (55257f)

  123. Or someone busted for driving without a license pays a fine and gets a license.

    Usually after a period of suspension, and then they have to start the process of obtaining a license legally… from the beginning. They don’t pay a fine and then get their license back if they’ve never had a license in the first place. Illegal aliens aren’t getting their Immigrant Visa back, they never had one.

    Great point stef… I’m glad you finally came around. The illegals need to pay a fine, then go through the process of getting legal. Thanks.

    Stashiu3 (c8e98a)

  124. AJL, #115…
    “…Do you think use of sidewalks by illegal aliens may be criminalized?”

    This brings up something I have personally observed, and no-one has ever been able to give me a convincing answer to:
    I find that immigrants, whether legal or illegal, do not use sidewalks, at least in my neighborhood. They will walk in the street when there is a perfectly good sidewalk on both sides of the street.
    My question is: Are sidewalks in other countries (one’s sending us large numbers of immigrants, and/or illegals – Latin America, the Indian sub-Continent, Middle-East) private property?

    As to AJL’s question: The non-use of available side-walks should be criminalized. Don’t we call that “Jay Walking” already?

    Another Drew (8018ee)

  125. “Great point stef… I’m glad you finally came around. The illegals need to pay a fine, then go through the process of getting legal. Thanks.”

    No shit sherlock. We gotta find ways for people to become legal. Thanks.

    stef (688568)

  126. We gotta find ways for people to become legal.

    Done. It’s called legal immigration. You’re welcome.

    Stashiu3 (c8e98a)

  127. “Done. It’s called legal immigration. You’re welcome.”

    Problem solved. No more need to grumble.

    stef (2a5a56)

  128. Now if only they would do it…

    Scott Jacobs (d3a6ec)

  129. Steverino, renting an apartment is not a “service”.

    Do you ever get embarrassed reading what you write? That’s a pretty silly statement of yours. A landlord renting real property is providing a service to his tenant.

    But you overlooked the rest of my point, and I’m not at all surprised by this. Your statement that Oklahoma could shoot illegal immigrants on sight is just hogwash, and doesn’t square with the facts being argued here.

    Steverino (2c9e20)

  130. Stef:

    Problem solved. No more need to grumble.

    Really? So you mean to tell us that all illegal aliens in the U.S. have suddenly agreed to leave the country and not come back until they can find a way to do so legally? Cool!

    Xrlq (62cad4)

  131. “Really? So you mean to tell us that all illegal aliens in the U.S. have suddenly agreed to leave the country and not come back until they can find a way to do so legally? Cool!”

    Not at all. But I’m not the one saying that that’s the way for people to become legal.

    stef (8a983a)

  132. Anyway, is no one really interested in talking about standing? Just this tired old gotchas and “they took our jerbs”? Great.

    stef (a853eb)

  133. You’re fighting the hypo. I’m not talking about people who have no right to be here. I’m talking about the application of “unclean hands” as a rule of standing. How does the hypo play out? Even if its not parallel, then how does it play out?

    Federal law preempts state law and says companies may not pollute more than 10 ppm. It is punished by 10K a day fine. The company has no right to pollute at 11 ppm. And yet it is. Does it have standing to challenge a preempted state law that punishes pollution above 5 ppm? Does it have standing to challege a preempted state law that punishes pollution above 10 ppm at 100K a day?

    What makes it parallel is that it has no right to be doing what its being punished for: whether that be polluting at 11 ppm or being in this country.

    My gut feeling is that the people in Pat’s hypothetical have standing, but that the illegal aliens don’t.

    Here’s the reason: the companies have the right to pollute between 5 ppm and 10 ppm. The state is infringing on that right, and what’s more, it’s doing so in violation of federal law, putting greater restrictions than the federal government.

    So my point is the same as the judge’s: unclean hands don’t *always* deprive one of standing, and illegal aliens have the right to sue in certain circumstances — as the judge explicitly says in his opinion.

    But in my tweaking of the hypo to make it more similar, polluting over 10 ppm automatically deprives the company of the right to do business in America. Now, it *doesn’t* have the right to pollute between 5 ppm and 10 ppm — because it doesn’t have the right to be here at all. And the state law doesn’t impose any greater burden than federal law, because federal law says the company can’t be here anyway.

    So: if it is apparent from the face of the complaint that the company is in violation of federal law, and it is accepting by implication the lawfulness of the federal penalty that disallows it from operating in the U.S., then how can the company be legally harmed by the state law?

    That’s the parallel situation, stef. I’m perfectly happy to discuss it — and that’s what I’m doing, in a logical and rational fashion.

    I dealt with your hypo. Let’s see you deal with mine, which is much more on point.

    Moving past the hypo, you say:

    The other problem is that this new rule of standing doesnt fit in with how prudential rules of standing are made. I cited this in my first comment:

    the animating concern of the various strands of prudential standing is to avoid courts being “called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.”

    None of that is going on here.

    Again, I’m not foursquare behind the idea that standing is the right analytical vehicle to dismiss the lawsuit, but it seems clear to me that it should be dismissed on the pleadings because the plaintiffs aren’t entitled to relief for the reasons I have discussed. But let’s allow me to defend the standing proposition as such, as devil’s advocate.

    It was Brennan, quoted by Simon in his post, who said:

    Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation.

    The Supreme Court has explicitly said it hasn’t defined the limits of prudential standing. And Simon quotes language saying: “[t]he essential attribute of the standing determination has always been that it was a decision whether to decide – a determination of whether the validity of the challenged government action should be passed on for this plaintiff.”

    That’s what I’m saying is going on here. These plaintiffs have no right to be in this country to begin with, and the relief they’re claiming has everything to do with their illegal status.

    Why should there be judicial intervention to protect rights that they acknowledge in their complaint are already abrogated by federal law??

    “You also seem to imply that prudential standing limitations cannot apply when one is raising a constitutional claim . . . but you don’t really mean that — do you?”

    I’ve asked whether equity overrides the constitution. Without implication, I rather clearly asked whether people agreed that equity can trump a constitutional right.

    The question is not whether equity overrides the Constitution, but rather whether the standing rule is properly applied. Because if it is, then — as I’m sure you will acknowledge — it doesn’t matter whether the claim is statutory or constitutiona in nature. No standing, no lawsuit.

    Patterico (4bda0b)

  134. #

    “Really? So you mean to tell us that all illegal aliens in the U.S. have suddenly agreed to leave the country and not come back until they can find a way to do so legally? Cool!”

    Not at all. But I’m not the one saying that that’s the way for people to become legal.

    No, but you are the one who said “problem solved” when others proposed lawful immigration as an alternative to the unlawful variety.

    As to standing, I agree in theory that if anyone has standing to argue that a state can’t deprive them of the right to be here just because the federal government has ruled they have no right to be here, illegal aliens in Arizona would be the right plaintiffs to raise that claim. I just think it’s a totally shitty claim, and one that ought to be dismissed on the pleadings for failure to state a claim, not for standing per se. Happy?

    Xrlq (62cad4)

  135. And that might be the right answer.

    Fake but accurate.

    Patterico (4bda0b)

  136. “Here’s the reason: the companies have the right to pollute between 5 ppm and 10 ppm”

    Do you remember the hypo? The company is polluting at 11ppm. It is in violation of federal law, but is not being prosecuted. Does it have “clean hands” to challenge a state law that punishes it more than the federal government for doing something it has no right to do?

    I dont see why you’re stuck on this ‘no right to be in the US” business. It is being punished by the state for doing something it has no right to do per federal law. The only thing that allows it to carry on business at 11ppm of pollution is lackluster federal enforcement. Do you think that company can challenge the state law?

    Here’s a third hypo: the state law is the exact same as the federal law, but it is being enforced, whereas federal law is not. Does it have standing?

    “No, but you are the one who said “problem solved” when others proposed lawful immigration as an alternative to the unlawful variety.”

    I think it solves the problem for us to seek ways for immigrants to be lawfully admitted so that they don’t come here unlawfully.

    stef (6e6b68)

  137. I think it solves the problem for us to seek ways for immigrants to be lawfully admitted so that they don’t come here unlawfully.

    There is a way already in place. Been there a long time. You knew that already, right?

    Paul (d4926e)

  138. I think it solves the problem for us to seek ways for immigrants to be lawfully admitted so that they don’t come here unlawfully.

    It also solves the problem if we secure our borders so that “immigrants” cannot come here unlawfully. Or terrorists. Or drug runners. Or murderers. Or robbers. Or extortionists. Or pimps. Or procurers of slave labor. Or their slaves. Or any other predators looking for a richer hunting ground.

    Don’t take it so far, stef, despite the provocation.

    nk (7b0075)

  139. “Here’s the reason: the companies have the right to pollute between 5 ppm and 10 ppm”

    Do you remember the hypo? The company is polluting at 11ppm. It is in violation of federal law, but is not being prosecuted. Does it have “clean hands” to challenge a state law that punishes it more than the federal government for doing something it has no right to do?

    Yes, stef, I remember the hypo. And I answered it already. Please review my comment more carefully. I said yes, it does.

    And the reason I gave is that, while it’s in violation of federal law, it can bring itself into compliance with federal law but still be in violation of state law. So they are still potentially harmed by the state law.

    That is not the case with illegal immigrants. They have no right to be here to begin with.

    stef, you seem like a smart person, but you’re having real trouble comprehending my hypos, even though I have expressed myself plenty clearly. Don’t make me repeat myself again, ok?

    I dont see why you’re stuck on this ‘no right to be in the US” business. It is being punished by the state for doing something it has no right to do per federal law. The only thing that allows it to carry on business at 11ppm of pollution is lackluster federal enforcement. Do you think that company can challenge the state law?

    Once, again, yes. Now will you please address my hypo, which is the only relevant hypo to this situation?

    Here’s a third hypo: the state law is the exact same as the federal law, but it is being enforced, whereas federal law is not. Does it have standing?

    If the company is not automatically disqualified from doing business in the country by virtue of its violation of the federal regulation, then yes, it does.

    Now please address the question I raised.

    Patterico (4bda0b)

  140. I dont see why you’re stuck on this ‘no right to be in the US” business.

    Because that is what deprives the illegal immigrants of any claim.

    Patterico (4bda0b)

  141. I think it solves the problem for us to seek ways for immigrants to be lawfully admitted so that they don’t come here unlawfully.

    We already have ways for immigrants to enter the country legally. The only way for us to “solve” the problem for those who can’t or won’t abide by our laws is to legalize everyone. That would solve the problem for them, of course, but it would only exacerbate the problem for us.

    I dont see why you’re stuck on this ‘no right to be in the US” business. It is being punished by the state for doing something it has no right to do per federal law.

    I think you just answered your own question.

    Xrlq (62cad4)

  142. “There is a way already in place. Been there a long time. You knew that already, right?”

    Seems to me thats not really a solution, as it doesn’t seem to be working.

    “And the reason I gave is that, while it’s in violation of federal law, it can bring itself into compliance with federal law but still be in violation of state law. So they are still potentially harmed by the state law.”

    One of the hypos had the state setting the same pollution limit as the feds. That doesn’t address that.

    “If the company is not automatically disqualified from doing business in the country by virtue of its violation of the federal regulation, then yes, it does.”

    The company is not allowed to at 11ppm. Is this an “automatic” disqualification?

    “Now will you please address my hypo, which is the only relevant hypo to this situation?”

    Don’t be a dick. The rule invented by the district court isn’t one of “not having the right to be here.” Its one of “unclean hands.” Someone polluting at 11ppm is in violation of the law and has unclean hands. That you want the rule to be different doesn’t mean that you are the only one coming up with what is relevant.

    Here’s another reason why I’m not clear on this “automatic disqualification.” Someone that is here undocumented is not “automatically disqualified” from a lot of the protections of the constitution, including equal protection. I think we disagree on this. But I think we can agree that this is an argument on the merits, not standing.

    “Now please address the question I raised.”

    I assume you mean this one:

    “The question is not whether equity overrides the Constitution, but rather whether the standing rule is properly applied. Because if it is, then — as I’m sure you will acknowledge — it doesn’t matter whether the claim is statutory or constitutiona in nature. No standing, no lawsuit.”

    I’ve said earlier that this new standing rule doesn’t fit in with the general idea of how prudential standing rules are made. So I think it is not properly applied.

    “We already have ways for immigrants to enter the country legally.”

    I think the situation we are in shows we need a whole lot more people entering the country legally. Now, since people aren’t nativist anti-immigrants, and simply object to law-breaking, they should be open to that point of view.

    “I think you just answered your own question.”

    I agree: I answered why its not a distinction. Patterico seems to think it is.

    “Why should there be judicial intervention to protect rights that they acknowledge in their complaint are already abrogated by federal law??”

    Thats exactly what the polluter hypo is about. The polluter has no right to pollute at 11ppm. They are suing to protect their ability to pollute at 11ppm, in several hypos:

    1. A state law that sets a lower pollution limit than the feds.

    2. A state law that sets the same pollution limit as the feds but higher fines.

    3. A state law that sets the exact same pollution limit and fine as the feds but is actually enforced.

    stef (de7003)

  143. Jesus.

    It’s clear I’m going to have type slowly and use small words. I’ll deal with this later.

    Patterico (6e7077)

  144. “There is a way already in place. Been there a long time. You knew that already, right?”

    Seems to me thats not really a solution, as it doesn’t seem to be working.

    That’s because too many people don’t want to punish the cheaters (go read the whole piece):

    If you think about it, all of our laws – and indeed, the very idea of respect for and equality under the law – are written to protect Tit-for-Tat, because Tit-for-Tat produces the best results. You may sell your product at a profit, but if you lie about what it does we will call that fraud and you will go to jail because successful societies start nice but retaliate against those that decide to Screw the Other Guy. The punishment of fraud is what gives us confidence in the claims made by other products. Retaliating against Screw the Other Guy is not mean-spiritedness or a lust for revenge. It is essential to protect the confidence needed to stay focused on long-term wins. And that’s how, in theory, you build a cooperative society.

    You retaliate against those that take advantage of the common trust. In other words, you punish the cheaters.

    If you do not punish the cheaters, you have an “always cooperate” society that produces, consistently and rapidly, the worst possible outcome because it encourages – it selects – competing nasty strategies, by providing them with what I can only describe as a food source. Without retaliation against cheaters, cheaters thrive because that becomes the smartest strategy. There’s nothing “kind” about non-retaliation, nothing noble or good. Non-retaliation is suicide. Plain and simple.

    Remember all those stimuli I mentioned before? What do they have in common?

    Cheating in class (or getting a diploma without passing the required tests), cheating by crossing the border illegally, cheating by committing crimes and not paying for it, cheating by bribery and corruption, cheating in general rewards Screw the Other Guy as a social strategy and makes chumps of the people who need a level of societal trust – they need retaliation against Screw the Other Guy – in order to continue to cooperate. Society needs to retaliate against cheaters because not to do so flips the coin from cooperation to betrayal. And that’s the end of everything we have worked for and cherish.

    And – and – you don’t need to be a master of game theory to know this in your bones. Because if you are offended by cheaters, it is because you are being betrayed into – you are in fact being forced into – becoming a cheater and betrayer yourself. Always-cooperating dies quickly: if you never betray and the other guy always does, he goes free and you get 20 years every time. (In other words, he’s out getting high while you work to support him.) Sooner or later, even the most dense moralist gets the message.

    When a tipping point is reached – when enough people are allowed to cheat – the system swings to a different stability mode (the default mode) and Screw the Other Guy becomes the only rational choice.

    The rational choice. Think about that for a moment.

    Does that make you angry? It damn well better. And if it does, then you are not alone.

    That’s why we have so many illegals pouring over the border. (“Why should I go through the process if so many aren’t? Why not cross illegally ike everyone else?”)

    That’s why the immigration laws should be enforced, the border secured, the flow stopped.

    This is why the whole standing argument is ridiculous on its face–because to simply grant illegals standing to file a lawsuit when they violated federal law to establish that standing–is rewarding the cheaters.

    Just ask anyone that immigrated legally what they think of all these people simply crossing the border in violation of federal law.

    Paul (d4926e)

  145. Jesus.

    It’s clear I’m going to have type slowly and use small words. I’ll deal with this later.

    Good luck, Patrick.

    I’ve said everything I’m going to say on this thread.

    Paul (d4926e)

  146. I think the situation we are in shows we need a whole lot more people entering the country legally.

    And you base this conclusion on … what, exactly? The mere fact that more people want to enter into the country than we want to enter? At most, that shows that it is their best interest to come here, not that it is in our best interest as a nation to accept them.

    Xrlq (62cad4)

  147. “At most, that shows that it is their best interest to come here, not that it is in our best interest as a nation to accept them.”

    I’m assuming people aren’t anti-immigrant nativists. I’m not. So when I see people having problems with the illegality part of illegal immigration, my solution is to increase avenues for legal immigration, because there clearly aren’t enough. As for expenses, I’d rather go through the expense of having 12 million legal immigrants than the expense of kicking out 12 million people.

    stef (43f44b)

  148. Stef #143:

    “There is a way already in place. Been there a long time. You knew that already, right?”

    Seems to me thats not really a solution, as it doesn’t seem to be working.

    It’s the job of the legislature(s) and executive(s) to solve policy problems when the current solutions aren’t working. It’s not the court’s function, at least it wasn’t until modern times.

    DRJ (d8934e)

  149. Stef #148:

    “I’d rather go through the expense of having 12 million legal immigrants than the expense of kicking out 12 million people.”

    I agree but those are our personal opinions. That doesn’t mean a sympathetic judge has the right to make it happpen.

    DRJ (d8934e)

  150. I’m assuming people aren’t anti-immigrant nativists. I’m not. So when I see people having problems with the illegality part of illegal immigration, my solution is to increase avenues for legal immigration, because there clearly aren’t enough.

    If you define “anti-immigrant nativist” broadly enough to include anyone who thinks the U.S. should look after its own interests, then you shouldn’t be assuming anything.

    Xrlq (62cad4)

  151. I’ll play. The way I see it, in the silly hypo the issue at hand is whether the federal law explicitly proscribes the states from enacting stricter standards.

    If not, then the states are free to set any standard below the federal threshold that they wish and the polluter can go cry in his beer.

    If so, in my opinion the proper plaintiff would be the EPA rather than the polluter who would be free to seek redress from California if/when the law in question is overturned or pack up and move to another state.

    And I’m purposely ignoring the standing arguments to see if we can make stef’s head explode.

    Taltos (4dc0e8)

  152. “It’s the job of the legislature(s) and executive(s) to solve policy problems when the current solutions aren’t working. It’s not the court’s function, at least it wasn’t until modern times.”

    The court wouldn’t be solving a policy problem. It would be making sure the other branches are solving policy problems according to the rules. For example, separation of powers and federalism can’t be violated. Nor can the 14th amendment, etc…

    “If you define “anti-immigrant nativist” broadly enough to include anyone who thinks the U.S. should look after its own interests, then you shouldn’t be assuming anything.”

    I define “anti-immigrant nativist” as people who think the US interest is in having less immigration. Ie: people who are against more immigration, whether it is legal or not.

    stef (3cd17c)

  153. “And I’m purposely ignoring the standing arguments to see if we can make stef’s head explode.”

    It doesn’t really bother me. I know most people don’t want to talk standing. I don’t pretend they do.

    stef (3cd17c)

  154. I’ve said everything I’m going to say on this thread.

    Yes, I’m making a liar out of myself.

    Stef writes:

    As for expenses, I’d rather go through the expense of having 12 million legal immigrants than the expense of kicking out 12 million people.

    Unfortunately, that’s already been tried. See Ronald Reagan and the Immigration Reform and Control Act (IRCA).

    Paul (d4926e)

  155. “Unfortunately, that’s already been tried. See Ronald Reagan and the Immigration Reform and Control Act (IRCA).”

    How much did that cost?

    stef (ae4236)

  156. I posted earlier but its not up.

    “If you define “anti-immigrant nativist” broadly enough to include anyone who thinks the U.S. should look after its own interests, then you shouldn’t be assuming anything.”

    I define as an anti-immigrant nativist anyone that wants to reduce or lower immigration. It would include people who think that because they think it is the US’s own interests to do that.

    [Stef – I found some of your recent comments in the spam filter. I’m not sure why it happened this time but it seems to happen to everyone now and then. I think it occurs most often when one comment includes several links, and thereafter the filter blocks every comment from the same source for a day or two. Anyway, sorry about that. — DRJ]

    stef (ae4236)

  157. Stef #153:

    “The court wouldn’t be solving a policy problem. It would be making sure the other branches are solving policy problems according to the rules. For example, separation of powers and federalism can’t be violated. Nor can the 14th amendment, etc…”

    Systemic, long-term illegal immigration seems like a policy problem to me but, analyzing it from the perspective of your comment, violation of immigration laws is a rule the court should also take into account.

    DRJ (d8934e)

  158. “Systemic, long-term illegal immigration seems like a policy problem to me but, analyzing it from the perspective of your comment, violation of immigration laws is a rule the court should also take into account.”

    Of course. Courts see those cases too. Its not their job to decide, policy-wise, who is best to enforce federal immigration laws. It is their job to make sure that this is all done according to the constitution.

    stef (48e229)

  159. How much did that cost?

    The better question is “What did it solve?”

    Since the problem is many times worse than in 1986, I’d say it had zero effect.

    I define as an anti-immigrant nativist anyone that wants to reduce or lower immigration. It would include people who think that because they think it is the US’s own interests to do that.

    Many oppose illegal immigration because it is illegal, not because it is immigration. Enforce the laws, let those who follow the rules in and punish the cheaters.

    Paul (d4926e)

  160. “The better question is “What did it solve?” ”

    It looks like it solved the problem that those people were illegal.

    “Many oppose illegal immigration because it is illegal, not because it is immigration. Enforce the laws, let those who follow the rules in and punish the cheaters.”

    I know. I like legal immigration. Much prefer it. I want lots more.

    stef (23dc05)

  161. define “anti-immigrant nativist” as people who think the US interest is in having less immigration. Ie: people who are against more immigration, whether it is legal or not.

    Come on, stef. Being opposed to illegal immigration is not the same thing as being opposed to legal immigration. And it’s hardly “anti-immigrant nativist” thinking to say, “Let’s fix all the leaks before we talk about allowing more on board.”

    I define as an anti-immigrant nativist anyone that wants to reduce or lower immigration.

    Using that logic:

    You are opposed to car ownership if you think that carjacking should be stopped.

    You are opposed to population control if you think that murders should be prevented.

    It’s BS reasoning.

    Steverino (2c9e20)

  162. Stef:

    I define “anti-immigrant nativist” as people who think the US interest is in having less immigration. Ie: people who are against more immigration, whether it is legal or not.
    […]
    I define as an anti-immigrant nativist anyone that wants to reduce or lower immigration. It would include people who think that because they think it is the US’s own interests to do that.

    And I define you as an idiot unworthy of further debate. Have a nice day.

    Xrlq (62cad4)

  163. “And I define you as an idiot unworthy of further debate. Have a nice day.”

    Did you want less immigration? Sorry. I didn’t know I was in this sort of company.

    stef (e870b9)

  164. I must have missed something in all these posts. Was anyone able to come up with a law or section of the constitution that allows the government to ignore laws on the books and decide not to enforce them?

    Was anyone able to show a reason why the states could not make laws on immigration that cover areas not currently covered by the federal laws? I was under the impression that what was not explicitly covered by federal law was left to the discretion of the states.

    If this is not accurate, please explain why states are allowed to write anti-gun laws when gun ownership is already covered by the 2nd amendment and some federal laws. Please explain why supremacy doesn’t cover this situation?

    Phil, after reading the other posts you wrote in this thread, I will no longer respond to posts from you unless you are actually trying to have a reasonable discussion. I saw no evidence that this was the case in this thread.

    Jay Curtis (8f6541)

  165. stef, I have tried to explain this and you aren’t seeing my point. I think my point is simple. If you admit you don’t have the right to do business here, you aren’t harmed.

    1. A state law that sets a lower pollution limit than the feds.

    Standing depends on whether the company admits it has no right to do business in this country.

    2. A state law that sets the same pollution limit as the feds but higher fines.

    Standing depends on whether the company admits it has no right to do business in this country.

    3. A state law that sets the exact same pollution limit and fine as the feds but is actually enforced

    Standing depends on whether the company admits it has no right to do business in this country. If the company has no such right under federal law, but the company alleges the federal government is not enforcing its laws as a policy matter, that raises a preemption issue — but also raises the issue of how far we can take that, along the lines of my hypos above that you never addressed.

    The weakness of your argument is exposed by your repeated utter failure to ever address my hypo regardng the critical issue of whether the company admits in its complaint that it has no legal right to do business here.

    Patterico (6d1606)

  166. Did you want less immigration? Sorry. I didn’t know I was in this sort of company.

    Is wanting less illegal immigration the same thing as wanting less immigration? Until you answer that question, there’s no point in trying to discuss this further.

    Steverino (e00589)

  167. Stef:

    Did you want less immigration? Sorry. I didn’t know I was in this sort of company.

    If “immigration” includes the illegal variety, then you’d better get used to “this sort of company,” as it includes the vast majority of your countrymen. Personally, I favor a little more legal immigration than we currently have, coupled with zero illegal immigration, resuylting in significantly less total immigration (legal and illegal) than we have now. It scarcely matters what I favor, though. If you have evidence that my position is mistaken, and that the U.S. would be better off blowing its borders wide open, feel free to provide whatever evidence you have to support that position. Calling people nasty names is not evidence.

    Jay Curtis:

    Was anyone able to show a reason why the states could not make laws on immigration that cover areas not currently covered by the federal laws? I was under the impression that what was not explicitly covered by federal law was left to the discretion of the states.

    Immigration is an area that expressly is covered by federal law and therefore not left to the states. If, for example, Arizona had passed a law purporting to redefine residency requirements, any otherwise lawful alien harmed by the law would have standing to challenge it, and it would be an easy win on the merits. This case is a bit trickier, though, as Arizona is not going after anyone with a right to be here under federal law, only those with no right to be here under federal law, whose only apparent defense is that the federales have yet to catch them.

    Xrlq (b71926)

  168. If you have evidence that my position is mistaken, and that the U.S. would be better off blowing its borders wide open, feel free to provide whatever evidence you have to support that position. Calling people nasty names is not evidence.

    Right now, the U.S. trade deficit to Mexico is growing by double digits each year. Mexico ships more cars to America than America ships to the rest of the world. A Mexican billionaire just surpassed Bill Gates in wealth, and is nipping at Buffett’s heels.

    Don’t want those poor Mexicans sneaking over the border to take your jobs? Is that why you favor stricter immigration controls? Well, your jobs are already sneaking over the border to Mexico, to be taken by Mexicans.

    So how can you stop the outflow of jobs? The answer is, you can’t stop the outflow of jobs unless you lock out EVERYTHING at the border, not just Mexicans — their products, too.

    If you don’t block the products, then when the cheap labor sneaking over the border is forced to stay in Mexico, someone else harnesses it to make cheap products to sell to us. The trade deficit grows, and we find ourselves “paying” Mexicans in the form of purchase prices, rather than wages.

    The more Mexicans there are without jobs in Mexico, the faster your jobs are going to run across the border to find them, because cheap labor attracts jobs in the same way jobs attract cheap labor.

    As the Mexican economy grows, thanks to the kind help from Americans locking cheap labor in Mexico, soon Mexicans won’t need to come to America to take your jobs. There will be plenty of jobs in their own country.

    It’s like osmosis — where there are jobs, people will go, and where there are people, jobs will go. Balance will be reached one way or the other. Sealing the borders in one direction doesn’t work, and just causes us to lose opportunities for growth in the long run.

    Phil (6d9f2f)

  169. A Mexican billionaire just surpassed Bill Gates in wealth, and is nipping at Buffett’s heels.

    Not to pick nits, but Gates has been WELL above Buffet for years…

    Scott Jacobs (fa5e57)

  170. Let me get this straight, Phil: you are saying that stemming illegal immigration will increase the balance of trade deficit with Mexico? But you also admit in your post that the trade deficit has been steadily increasing the past several years, at the same time illegal immigration has been increasing.

    One side question: is running a trade deficit with Mexico a bad thing? It’s making Mexico richer…which would mean more jobs there…which would mean less incentive for illegal immigration to the US.

    I run a trade deficit with my local grocer. I spend about $150/week at his business, and he buys nothing from me. But I’m getting something I need that I choose not to produce on my own. So, trade deficits aren’t really bad things, are they?

    Steverino (e00589)

  171. Let me get this straight, Phil: you are saying that stemming illegal immigration will increase the balance of trade deficit with Mexico? But you also admit in your post that the trade deficit has been steadily increasing the past several years, at the same time illegal immigration has been increasing.

    The trade deficit by itself is not a bad thing. It’s when the trade deficit is caused, or accentuated, by something other than the market for the goods being traded.

    If Mexico is running a trade surplus with us just because they’re being cheaper and more efficient, that’s great.

    On the other hand, if Mexico is running a trade surplus because they’ve got a cheap, captive labor pool, and thus can out-perform American businesses who would otherwise hire that labor pool, then you’ve got an inefficiency.

    A labor pool is like a gold mine. It’s the most widely-used raw material of all. It’s also a source of finite value, that can be captured by the first person to mine it.

    Imagine if Americans passing a law that forbid American jewelry makers from buying gold from Mexico. That’s really no different from passing a law that Americans can’t hire Mexicans.

    Americans can still buy jewelry from Mexico (just like they can by the products of Mexicans’ labor). Sure, in the short term, the gold miners (like American employees) in America make out like bandits, because they have a monopoly on the jewelry manufacturers.

    But in the long run, Mexican jewelers will put the American jewelers out of business. And then the American gold miners will, inevitably, have to compete with the Mexican gold miners again.

    One side question: is running a trade deficit with Mexico a bad thing? It’s making Mexico richer…which would mean more jobs there…which would mean less incentive for illegal immigration to the US.

    The trade deficit with Mexico is not a good thing or bad thing by itself. In producing goods in a cheaper, more efficient fashion than American companies, Mexican companies are providing a valuable service. But if the deficit arises/increases simply because we aren’t giving Americans access to the labor pool of Mexico, then it’s a bad thing.

    Sure, I get cheaper stuff coming over the border thanks to the wall. But my own opportunities as an employer are wilting, because I’m not allowed to make those Mexican laborers a slightly more tempting offer in order to compete with the businesses down there.

    I run a trade deficit with my local grocer. I spend about $150/week at his business, and he buys nothing from me. But I’m getting something I need that I choose not to produce on my own. So, trade deficits aren’t really bad things, are they?

    That’s a really stupid illustration because it leaves out what you do for a living, and how the grocer gets his goods. Those are the factors that are affected by the trade controls. So sure, eleminate the effects of the trade controls, and the trade deficit itself isn’t a bad thing.

    Phil (6d9f2f)

  172. What you wrote has absolutely nothing to do with illegal immigration. Thank you for yet again not answering my question.

    That’s a really stupid illustration because it leaves out what you do for a living, and how the grocer gets his goods.

    No, it’s a realistic description of comparative advantage. My occupation or where my grocer gets his goods is irrelevant. I could have used my gardener, shoe salesman, gas station, car dealer, or any other vendor in this example. I pay money to a vendor and get my money’s worth of goods in return. By your logic, that’s a trade deficit, but not by mine: I’ve gotten value for the money spent.

    Also, you never did answer my question about countries having the right to restrict entry.

    Steverino (e00589)

  173. No, it’s a realistic description of comparative advantage. My occupation or where my grocer gets his goods is irrelevant. I could have used my gardener, shoe salesman, gas station, car dealer, or any other vendor in this example.

    Sure, you’ve given a simple example of comparative advantage that has nothing to do with immigration controls. Why don’t you put artificial market controls into your picture? Say, for example, that you are a cabbage farmer, and you get the government to order your grocer to buy your cabbage from you, and only you.

    Ta-da! You make a great wage, and can afford to buy lots of stuff from the grocer (and/or, your grocer’s products now seem relatively cheap to you).

    But low and behold, your grocer can’t sell your cabbage to anyone else, because the other cabbage farmers are selling their cabbage cheaper to other grocery stores, who then pass on their savings to their customers.

    So eventually, your grocer says “keep your stupid cabbage, I can’t sell it to anyone but you anyway.”

    So then, bam, you’re back competing with the other cabbage farmers. But in the meantime you’ve gotten fat and lazy and unproductive becuase you haven’t had any competition. And your grocer isn’t any better off from your little mini-monopoly either.

    Also, you never did answer my question about countries having the right to restrict entry.

    Phil (6d9f2f)

  174. Oops, I missed the last line. I did answer your question. Yes, countries have the right to restrict entry, even more than the U.S. currently does. Countries have the right to do stupid things. They are sovereign, and like human beings, have the freedom to make mistakes. Doesn’t mean that border controls aren’t stupid.

    Phil (6d9f2f)

  175. Don’t want those poor Mexicans sneaking over the border to take your jobs? Is that why you favor stricter immigration controls?

    No.

    The trade deficit by itself is not a bad thing. It’s when the trade deficit is caused, or accentuated, by something other than the market for the goods being traded.

    Not sure I follow your reasoning there. If a company hires Mexicans in Mexico to make a product and ship them here, I as a consumer get the benefits of cheap labor, with no downside. If the same company transports the same Mexicans here illegally and pays them under the table to make the same product on U.S. soil, I stay pay the lower price for the product they make, but pay more in other ways (e.g., higher taxes, more crime, etc.). If the same individuals were then legalized, I still have the higher tax burden and the associated crime rate, only now they make at least minimum wage, so I’m not even getting the cheaper price on the product anymore.

    Given those three options, why would any rational American support anything other than (1) open borders for consumer products and (2) not-so-open borders for would-be immigrants?

    Xrlq (b71926)

  176. Sure, you’ve given a simple example of comparative advantage that has nothing to do with immigration controls. Why don’t you put artificial market controls into your picture? Say, for example, that you are a cabbage farmer, and you get the government to order your grocer to buy your cabbage from you, and only you.

    Because, unlike you, I understood what I was writing about. I was making the point that trade deficits really don’t mean anything. One side gets the money, the other side gets something else of equal value. But the only thing focused upon is the money.

    Is that simple enough for you to understand?

    Steverino (2c9e20)

  177. “The weakness of your argument is exposed by your repeated utter failure to ever address my hypo regardng the critical issue of whether the company admits in its complaint that it has no legal right to do business here.”

    That issue is not critical at all. But I’ll address it. The company admits in its complaint that it is violating federal law, and makes no challenge to federal law which punishes it for polluting at 11ppm.

    Of course, the company is doing something it has no right to do — polluting over the federal limit. Does it have standing to challenge a preempted state law for doing that? The law mentions nothing about “right to do business” solely “right to do something it can’t.”

    Yet another reason why it is silly is because that is not the rule that this court invented! they invented a new standing doctrine based on unclean hands. One unlike other prudential standing doctrines. You think this doctrine is limited to only the cases when someone has no rights to be in business at all. But why? the logic of the court is not limited to complete exclusion from the country. Its broadly about having standing to challenge one jurisdiction’s laws when you are in violation of another jurisdiction’s laws — such that being in compliance with the second would bring in you compliance with the first.

    But it looks like for you, the corporation gets to have standing so long as it has some right. So now we get to the last point as to why your stickler is silly.

    Another reason why your “no right to be in this country” stickler is silly is that even though undocumented peoples should be leaving, the proces by which we get them out of here still has to comport with the constitution. Which effectively gives them very limited “rights” — we should say more of an ability — to be here. So they have the right to avoid being kicked out by a law that violates equal protection, the right to avoid being kicked out by a law that violates due process, etc… So even though you imagine they have no right to be here, they still have constitutional claims which can extend their stay.

    “Is wanting less illegal immigration the same thing as wanting less immigration? Until you answer that question, there’s no point in trying to discuss this further.”

    They’re different. I want less illegal and more legal. If your problem is the legality, that is one thing. If your problem is the immigration, that is another.

    “It scarcely matters what I favor, though. If you have evidence that my position is mistaken, and that the U.S. would be better off blowing its borders wide open, feel free to provide whatever evidence you have to support that position.”

    I don’t have much evidence, other than our history, that we would be better off. I do think that people that oppose immigration are by definition anti-immigrant nativist. They could be racist, they could just be lookign out for #1, or they could have arrived at that by some rational calculus that imagines the national interest in ways that finds that more people are a burden, not a boon. No matter: anti immigration is anti immigration.

    At least part of my logic includes the fact that I’d rather people come here and work here under our laws and potential for progress than compete with us from abroad for less protection and less pay.

    stef (6c5bbe)

  178. If your problem is the legality, that is one thing. If your problem is the immigration, that is another.

    My problem is the legality, but the solution is not declaring all aliens legal. I don’t believe in open borders; we don’t have the infrustructure to sustain it. But I do believe in a path for immigrants to come into the country legally and become citizens if they choose to.

    Steverino (e00589)


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