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The Three Whisky Happy Hour: ‘You Went Full Lincoln, John—Never Go Full Lincoln!’

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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."

Host:
Steve Hayward
Guests:
JYJohn Yoo"Lucretia"

Discussion (39)

  • 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?

  • 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.
  • Noell Colin@Apeirokalia
    ReplyingtoLeslie Watkins

    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..

  • Leslie Watkins@LeslieWatkins
    ReplyingtoNoell Colin

    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

    Noell Colin (View Comment):

    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)

  • 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? "

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