Hoo boy, this week’s happy hour very nearly descended into a full-scale bar room brawl, even though we recorded in the morning over coffee instead of single-malts because John Yoo is still over in Rome! (And may not come back after this episode!)

After noting a few late breaking news stories, such as Harvey Mansfield’s retirement and Sen. Kyrsten Sinema’s surprise announcement that she’s becoming an independent, we get down to the main event: Steve and Lucretia decided to contest John’s recent National Review article that argues the states (such as Texas) have no power under the U.S. Constitution to prevent illegal immigration at the southern border. (See also Ed Erler’s spirited attack on John here.)

Can the current surge of illegal border crossers be considered an “invasion” for constitutional purposes? And what has been the history of states actively managing immigration throughout U.S. history? Ultimately, however, our argument ascends (or descends?) into the wider issue of whether the Constitution can or should be understood primarily as a legal document, or as a political document. It’s a familiar argument for regular listeners of this podcast, but the immigration controversy offers yet another portal into the issue.

Needless to say, perhaps, the exit music this week is . . . “Immigration Man.”

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There are 39 comments.

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  1. Apeirokalia Coolidge
    Apeirokalia
    @Apeirokalia

    I sense neither Lucretia or John are hitting the nail on the head. Agreeing with the sentiments of Lucretia, John’s position, while squishy, would appear to be trying to set a stricter standard for “war” like declarations. Maybe we agree that something should be done this time; but what about the time when we DON’T agree something war like should be invoked?

    I’m curious about linking this to the Opium Wars in China. I haven’t studied it deeply but is there not some parallel here regarding our border and fentaynl? Could this be close enough to John’s reasons and willingness to fight Al-Qaeda?

    • #1
  2. Leslie Watkins Inactive
    Leslie Watkins
    @LeslieWatkins

    Your discussion about Gov. Abbott’s use of state troops to deal with ongoing illegal immigration reveals the practice of law to be an integral part of the problem. There’s no “emergency” in Arizona, John Yoo says, because the situation at the border has gone on for too long. Well, while COVID was still being described as a dire national emergency, federal policy at the border was to let people in without forcing them to be vaccinated, despite the federal mandate and other travel restrictions. (It seems that the number of Americans who have died of COVID, 1.08 million, is roughly a quarter of the number of illegal immigrants who have been apprehended at the southern border over the past two years: 2.4 million in 2022; 1.7 million the year before. In 2015, some 911,000 immigrants fled to Europe, which has had immense social as well as political impacts, again because national leaders privilege migrants over their own citizens.) Why in the world can’t the law enable states to take local steps against a continuing inhumane situation caused and perpetrated by federal officials abdicating their responsibility to provide proper border security? We still have vaccine mandates from an emergency based more on hysteria over what could happen than what actually did happen to the health care system and that, for all practical purposes, should have ended once the vaccine was distributed. Yet school kids in DC face expulsion if they don’t get the jab (by sometime in January, IIRC), even after Biden himself told us what we already knew, that the emergency was over. Focusing on definitions rather than addressing actual harms taking place on the ground is what American jurisprudence has been doing for way too long. So, although I am pro-Dreamers and believe that immigration overall is a great good for America—it’s had very positive impacts on where I live in NC—John’s needle point distinction between legitimate state interests and the procedural monopoly of federal power serves only to exacerbate the divisions caused by erratic enforcement of the law, possibly leading, I fear, to de facto civil war.

    • #2
  3. Noell Colin Coolidge
    Noell Colin
    @Apeirokalia

    Leslie Watkins (View Comment):
    lieve that immigration overall is a great good for America—it’s had very positive impacts on where I live in NC—John’s needle point

    I think this is what John is trying to avoid. If you’re able to create emergencies over covid and so on which we do not agree with, we can’t turn around and do the same for border policy. I’m uncomfortable with “they got to do covid so we get to do the border” arguments or some variant of.  
    That’s why I think neither Lucretia or John are hitting the nail on the head.
    There needs to be some other legal way to justify the action. Not sure what that is.. 

    • #3
  4. Leslie Watkins Inactive
    Leslie Watkins
    @LeslieWatkins

    Noell Colin (View Comment):

    Leslie Watkins (View Comment):
    lieve that immigration overall is a great good for America—it’s had very positive impacts on where I live in NC—John’s needle point

    I think this is what John is trying to avoid. If you’re able to create emergencies over covid and so on which we do not agree with, we can’t turn around and do the same for border policy. I’m uncomfortable with “they got to do covid so we get to do the border” arguments or some variant of.
    That’s why I think neither Lucretia or John are hitting the nail on the head.
    There needs to be some other legal way to justify the action. Not sure what that is..

    I’m not talking tit for tat. John said it had been too long for the border situation to still be defined as an emergency, even though the numbers are clearly exponential and climbing (in effect telling southern governors to pound sand because time is different now). I brought up COVID because it was a created emergency based not on what actually had happened but on what might happen, and, yet, it has not ended even though it’s effectively been over—the emergency, that is—since summer/fall 2021. And the reason for the difference between the two situations is that emergency has come to be legally defined not so much by its proper meaning as by the actions of those willing to use—or not use—the word for their own political ends. (Edited)

    • #4
  5. mildlyo Member
    mildlyo
    @mildlyo

    Brava Lucretia, for insisting on the point that all illegal immigrants are criminals.

    I’ll add the questions ” What sort of citizens could they ever become, with this entry into our society? Will this be the only crime they ever commit? “

    • #5
  6. Rightfromthestart Coolidge
    Rightfromthestart
    @Rightfromthestart

    Lucretia’s position is akin to that of the cop on the beat with a crime in progress, John’s is that of the lawyer who comes along later with all the time in the world talking about excessive force, were the correct  warnings given, was the perp over 16, did he come from a good family, on and on , etc. blah blah. How many millions pass though while these things are being adjudicated. Stop the invasion first , adjudicate later.

    • #6
  7. RufusRJones Member
    RufusRJones
    @RufusRJones

    I have never understood why the logical position isn’t that “dreamers”, as long as they aren’t criminals should be allowed to stay here, and then everybody else needs to be kicked out.  

    • #7
  8. Dr.Guido Member
    Dr.Guido
    @DrGuido

    Without using the phrase ‘Exigent Circumstances’ it seems Lucretia easily has the better argument. Another concept that was not referred to was that ‘The Constitution is not a suicide pact’ and Yoo’s insistence that the governor(s) of a/the sovereign state(s) must remain paralyzed seems beyond preposterous…

    (I could be wrong…)

    • #8
  9. Richard Easton Coolidge
    Richard Easton
    @RichardEaston

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that “dreamers”, as long as they aren’t criminals should be allowed to stay here, and then everybody else needs to be kicked out.

    What will happen with the next group of dreamers.

    • #9
  10. RufusRJones Member
    RufusRJones
    @RufusRJones

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that “dreamers”, as long as they aren’t criminals should be allowed to stay here, and then everybody else needs to be kicked out.

    What will happen with the next group of dreamers.

    You have already cut it off at the root. It’s people that were born here (that are going to find it very hard to adjust to the other culture) to illegals. No more illegals. 

    • #10
  11. Richard Easton Coolidge
    Richard Easton
    @RichardEaston

    RufusRJones (View Comment):

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that “dreamers”, as long as they aren’t criminals should be allowed to stay here, and then everybody else needs to be kicked out.

    What will happen with the next group of dreamers.

    You have already cut it off at the root. It’s people that were born here (that are going to find it very hard to adjust to the other culture) to illegals. No more illegals.

    But how do you send the signal of no more illegals when you rewarded the dreamers. No one will believe that the next group of dreamers will not also be rewarded with amnesty.

    • #11
  12. RufusRJones Member
    RufusRJones
    @RufusRJones

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that “dreamers”, as long as they aren’t criminals should be allowed to stay here, and then everybody else needs to be kicked out.

    What will happen with the next group of dreamers.

    You have already cut it off at the root. It’s people that were born here (that are going to find it very hard to adjust to the other culture) to illegals. No more illegals.

    But how do you send the signal of no more illegals when you rewarded the dreamers. No one will believe that the next group of dreamers will not also be rewarded with amnesty.

    Maybe it’s not possible, but it seems to me we should be just as mean to illegals as we are to criminals. Just be merciless about deporting them. 

    • #12
  13. RufusRJones Member
    RufusRJones
    @RufusRJones

    I just started listening to this. Sen. Kyrsten Sinema’s babbling about improving anything doesn’t matter unless she figures out how to stop the march to single-payer. That is almost the only thing that would get my attention. She’s just going to Central plan everything too much like all the Democrats and 80% of the Republicans do.

    • #13
  14. LibertyDefender Member
    LibertyDefender
    @LibertyDefender

    The 3WHH should have invited Michelle Malkin to sit in on this session. Twenty (20!) years ago she wrote Invasion: How America Still Welcomes Terrorists, Criminals, and Other Foreign Menaces to Our Shores.  It seems to *me to be a point on which reasonable minds cannot differ: what is happening at our southern border is an invasion.

    Tack on the fact that every individual border crosser (invader) not entering at a port of entry is committing a felony, and there is justification under the states’ police power to act in order to repel the invasion.

    If the situation were described thusly in the podcast, then we could get another discussion by John Yoo about how sovereign states and sovereign individuals (thank you, Lucretia) must demonstrate that they have standing, in order, with hat in hand, to beg the Supreme Court to suggest that the federal government correct its naked violation of Constitutional obligations and/or limitations.

    –From Falcon Lake State Park, on the Texas-*Mexico border, a few miles from Mission TX where a CPB agent was killed last week in the line of duty. Yes, the Biden administration policies are intended to destroy the United States of America.

    [Edited to correct *typos]

    • #14
  15. RufusRJones Member
    RufusRJones
    @RufusRJones

    Not that it matters, but the tobacco settlement went into a black hole. 

    They have NARCAN vending machines in Democrat hellscapes, now and some schools stock NARCAN.

    • #15
  16. Internet's Hank Contributor
    Internet's Hank
    @HankRhody

    Two clauses from the Declaration of Independence; these head up the list of complaints:

    He has refused his Assent to Laws, the most wholesome and necessary for the public Good.

    He has forbidden his Governors to pass Laws of immediate and pressing Importance, unless suspended in their Operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. 

    Having just said that the present King of England is attempting to establish “an absolute Tyranny over these States” it’s odd that the first complaint on the list is that there aren’t enough laws. That’s not how tyrannies work. If the first complaint is “he won’t pass good laws” then the second complaint is “he won’t let us pass good laws either.” You can keep going; the next couple complaints aren’t about specific injustices (though there were specific injustices they respond to) they’re complaints about the sovereign using the power to set the rules in ways that aren’t fair. In effect King George III’s actions were abrogating to himself the power to do whatever he wanted, whenever he wanted. That’s fundamentally tyrannical, even if the individual actions he takes aren’t. 

    Cut back to the situation at the border. The law says that if you wish to enter this country you need to go through the lawful procedures. We have masses of people who aren’t doing so. The Federal government has claimed the power to defend the borders. That’s fine; part of the natural duty of the federal government. Having claimed that power it refuses to exercise it in defiance of its own laws, and will not suffer the states to defend their borders severally. Whether or not the feds can find a constitutional fig leaf to cover their nakedness, and whatever sound policy on the border ought to be, their refusal to enforce their own laws is tyrannical. 

    • #16
  17. LibertyDefender Member
    LibertyDefender
    @LibertyDefender

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that [amnesty], as long as [circumstances], and then everybody else needs to be kicked out.

    What will happen with the next group of [amnesty seekers].

    Agreed.

    “How will you treat the next person in precisely the same circumstances as the last person granted amnesty?”

    is why amnesty must never be granted.

    Especially not in a country founded on principles of equal justice under the law.

    • #17
  18. RufusRJones Member
    RufusRJones
    @RufusRJones

    LibertyDefender (View Comment):

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that [amnesty], as long as [circumstances], and then everybody else needs to be kicked out.

    What will happen with the next group of [amnesty seekers].

    Agreed.

    “How will you treat the next person in precisely the same circumstances as the last person granted amnesty?”

    is why amnesty must never be granted.

    Especially not in a country founded on principles of equal justice under the law.

    I chose my words carefully. 

    Something like 25% of the dreamers are actually pretty bad people. I get that. The rest of them would suffer greatly if they kicked them out. 

    • #18
  19. LibertyDefender Member
    LibertyDefender
    @LibertyDefender

    RufusRJones (View Comment):

    LibertyDefender (View Comment):

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that [amnesty], as long as [circumstances], and then everybody else needs to be kicked out.

    What will happen with the next group of [amnesty seekers].

    Agreed.

    “How will you treat the next person in precisely the same circumstances as the last person granted amnesty?”

    is why amnesty must never be granted.

    Especially not in a country founded on principles of equal justice under the law.

    I chose my words carefully. 

    Yes you did, as you generally do.

    RufusRJones (View Comment):
    Something like 25% of the dreamers are actually pretty bad people. I get that. The rest of them would suffer greatly if they kicked them out. 

    The exact circumstances that you described precisely will occur in people immediately after amnesty is granted. The post-amnesty people will not receive equal justice under the law, unless they are granted amnesty as well.

    • #19
  20. RufusRJones Member
    RufusRJones
    @RufusRJones

    LibertyDefender (View Comment):

    RufusRJones (View Comment):

    LibertyDefender (View Comment):

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that [amnesty], as long as [circumstances], and then everybody else needs to be kicked out.

    What will happen with the next group of [amnesty seekers].

    Agreed.

    “How will you treat the next person in precisely the same circumstances as the last person granted amnesty?”

    is why amnesty must never be granted.

    Especially not in a country founded on principles of equal justice under the law.

    I chose my words carefully.

    Yes you did, as you generally do.

    RufusRJones (View Comment):
    Something like 25% of the dreamers are actually pretty bad people. I get that. The rest of them would suffer greatly if they kicked them out.

    The exact circumstances that you described precisely will occur in people immediately after amnesty is granted. The post-amnesty people will not receive equal justice under the law, unless they are granted amnesty as well.

    I’m not following this. I’m saying if somebody was forced here by their parents when they are under say, teenager, they get to stay because they don’t have the cultural skills to go back to their country. The rest of them, and I mean all of them, be cruel as hell to them. Are you saying that can’t be done, legally?

    • #20
  21. RufusRJones Member
    RufusRJones
    @RufusRJones

    The other thing is, I am very skeptical that we can help those countries that people want to escape from in any way short of just having our special forces assassinate everybody that’s in organized crime down there. 

    The cartels are making $13 billion a year now, and the catalyst was human smuggling.

    • #21
  22. Buckpasser Member
    Buckpasser
    @Buckpasser

    Leslie Watkins (View Comment):
    There’s no “emergency” in Arizona, John Yoo says, because the situation at the border has gone on for too long

    I don’t understand his logic.  Something illegal is not an “emergency” depending on the length of time it’s been happening?!?

    • #22
  23. Quickz Member
    Quickz
    @Quickz

    Great podcast and wow – look at all the comments!

    I am just now listening to the speeches from the last NatCon event (they just arrived in my podcast player) and first one I listened to was @johnyoo ‘s!

    Since John likes to use Lincoln and compare his opponents position to those held by the Confederates, I thought I would link to his speech at NatCon where he compares turning to the courts – the Supreme Court in specific – as the rout taken by the Confederates.

    Considering this is where he is claiming to find authority for this immigration enforcement issue, that would make him on the sides of the Confederates!

    Also if you rewind the speech, you can listen to him discuss how the states are often where many of these moral life and death decisions usually get settled, so the John Yoo of NatCon seems to disagree with the John Yoo of 3WHH…

    :)

    • #23
  24. Bishop Wash Member
    Bishop Wash
    @BishopWash

    LibertyDefender (View Comment):

    RufusRJones (View Comment):

    LibertyDefender (View Comment):

    Richard Easton (View Comment):

    RufusRJones (View Comment):

    I have never understood why the logical position isn’t that [amnesty], as long as [circumstances], and then everybody else needs to be kicked out.

    What will happen with the next group of [amnesty seekers].

    Agreed.

    “How will you treat the next person in precisely the same circumstances as the last person granted amnesty?”

    is why amnesty must never be granted.

    Especially not in a country founded on principles of equal justice under the law.

    I chose my words carefully.

    Yes you did, as you generally do.

    RufusRJones (View Comment):
    Something like 25% of the dreamers are actually pretty bad people. I get that. The rest of them would suffer greatly if they kicked them out.

    The exact circumstances that you described precisely will occur in people immediately after amnesty is granted. The post-amnesty people will not receive equal justice under the law, unless they are granted amnesty as well.

    We could learn from Reagan’s mistake. He granted amnesty on promise of border enforcement. Of course, the enforcement never came. Reverse the order. We will give the [manipulative title]s amnesty after five years of serious border enforcement. Demonstrable reductions in illegal border crossings. No increasing the border patrol’s budget and calling it good. Milestone markers that have to be met and only then is amnesty given. Handing out amnesty without staunching the inflow will not stop more from coming. 

    • #24
  25. RufusRJones Member
    RufusRJones
    @RufusRJones

    Just to be really clear, I’m talking about the 75% of the dreamers that are decent people. Sending them back is going to be cruel. I am all for being cruel to the rest of them. They deserve cruel treatment.

    I’m sure there are all kinds of logistical and political reasons (including everybody lies all the time) that we can’t do this.

    People that think we need more government are idiots. All we do is central plan ourselves into a ditch over and over. Duh.

    • #25
  26. Ernst Rabbit von Hasenpfeffer Member
    Ernst Rabbit von Hasenpfeffer
    @ape2ag

    RufusRJones (View Comment):

    Just to be really clear, I’m talking about the 75% of the dreamers that are decent people. Sending them back is going to be cruel. I am all for being cruel to the rest of them. They deserve cruel treatment.

    I’m sure there are all kinds of logistical and political reasons (including everybody lies all the time) that we can’t do this.

    People that think we need more government are idiots. All we do is central plan ourselves into a ditch over and over. Duh.

    Asserting nationally sovereignty is inevitably going to be cruel to someone somewhere.  But we have to keep in mind who it’s asserted for.  National sovereignty is important and undermining it has dire consequences that are difficult to predict.

    • #26
  27. RufusRJones Member
    RufusRJones
    @RufusRJones

    Ernst Rabbit von Hasenpfeffer (View Comment):

    RufusRJones (View Comment):

    Just to be really clear, I’m talking about the 75% of the dreamers that are decent people. Sending them back is going to be cruel. I am all for being cruel to the rest of them. They deserve cruel treatment.

    I’m sure there are all kinds of logistical and political reasons (including everybody lies all the time) that we can’t do this.

    People that think we need more government are idiots. All we do is central plan ourselves into a ditch over and over. Duh.

    Asserting nationally sovereignty is inevitably going to be cruel to someone somewhere. But we have to keep in mind who it’s asserted for. National sovereignty is important and undermining it has dire consequences that are difficult to predict.

    Those are the last people I would turn it up on. That’s my point. They got abused by their parents. They didn’t have any agency. Many of them aren’t going to have good options when they go back, even if they speak the language. Go medieval on everybody else first.

    • #27
  28. Boethius1261972 Inactive
    Boethius1261972
    @Boethius1261972

    What is the basis for John’s claim that allowing these people to enter the US illegally is official “policy”?  Who has officially stated this to be the case?  If he is going to hang on the precise meaning of words then he needs to justify the failure to enforce the borders being official policy.

    • #28
  29. RufusRJones Member
    RufusRJones
    @RufusRJones

    Ann Coulter says that there are 28 million other illegals in this country. Those 2 million are the last ones we need to worry about.

    • #29
  30. Noell Colin Coolidge
    Noell Colin
    @Apeirokalia

    Buckpasser (View Comment):

    Leslie Watkins (View Comment):
    There’s no “emergency” in Arizona, John Yoo says, because the situation at the border has gone on for too long

    I don’t understand his logic. Something illegal is not an “emergency” depending on the length of time it’s been happening?!?

    Furthermore: Take covid, it would seem it was an emergency in the early days, but only treated as an emergency later. 
    So why cant John accept that the emergency is there regardless of period of time. The emergency is the potential OR actual damage done, not a timeframe. 

    • #30
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