An Obscure But Vitally Important Provision in the Constitution

 

So, as I have struggled to understand our insane system of budgeting, some major defects have come into full view.  Does it make any sense at all to require a super-majority in the Senate for annual appropriations and allow a simple majority for appropriations that can last up to ten years?  It would make infinitely more sense to me to pass ordinary legislation, including annual budgets, by a simple majority and require a super-majority to anything that commits us for an extended period of time.  Yet Senate rules have decided differently.  

To be clear, this requirement is not part of the Constitution, nor is it a statute.  It is a Senate rule that can be changed any time.  And as we face the extremely dangerous prospect of a lawless paramilitary with enough funding to last over seven years without further appropriations, I begin to fully appreciate an obscure but important provision in the Constitution and wish that it could be brought up to date to face our current situation.

The Constitution does not expressly authorize mandatory spending in the sense of spending that is required to continue for an extended length of time, often with a special fund to finance it.  But it does implicitly authorize mandatory spending by banning it in only one instance.  

Article I of the Constitution establishes Congress as the legislative branch of the Federal government.  Section 8 of Article I sets forth Congress's enumerated powers.  And Article I, Section 8, Clause 12 contains the only restriction on the duration of funding, giving Congress the power, "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years."

Congress is not allowed to commit funds to support an army for any duration longer than two years, i.e., one House term.  Note that this provision does place such a limit on all military spending, only on spending on an army.  Article I, Section 8, Clause 13 authorizes Congress, "To provide and maintain a Navy" with no equivalent restriction.

The reasons for this provision are well understood.  The Framers of the Constitution distrusted standing armies but also recognized that unilateral disarmament was suicidal.  The two-year restriction was a compromise.  If an army started to look menacing, Congress would have the option of defunding it.*  Presumably the threat of loss of funds would also serve as a deterrent to any army with dangerous aspirations.  No equivalent restriction was placed on navies because navies posed no such danger.

Fortunately, that situation has never come about.  Unfortunately, the Framers did not include a similar provision for paramilitaries, a contingency they presumably did not foresee.  Well, here we are.

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*Not addressed: What to do about a well-armed and trained body of men starting to act menacing and then are suddenly deprived of their funds.  It is a prospect I am apprehensive about if we feed ICE into the woodchipper, but still better than the alternative.

The Budget Battle Continues

 

So, the budget battle continues, this time solely over the Department of Homeland Security.  Some thoughts:

Good news:  Republicans agreed to release their hostages.  Funding has been passed for the entire government except Homeland Security.

Good news:  This was at the insistence of Donald Trump, a sign that he really as soured on shutdowns and is unlikely to use them for a power grab at least in the near term.

Good news:  This means Congress is finally getting serious about exercising its power of the purse.  Better still -- the budget seems to be on terms generally acceptable to Democrats.

Good news:  This is the fight we have really wanted for some time -- the fight to reign in La Migra.  Also good news: Public opinion appears to back us on this one.

Final good news:  Things could have gotten a lot worse in Minneapolis.  There were plans to invoke the Insurrection Act and deploy 1500 winter-trained troops.  Border Patrol forces had 35,000 munitions and were readying to use them.  Team Trump appears to be tiptoeing away from such extreme measures -- at least for now.

Unfortunately, this good news is seriously outweighed by bad news.

Bad news:  That means we don't have hostages either.  Well, a few in the form of Homeland Security agencies such as the Coast Guard and FEMA, but not a lot.

Bad news:  Republicans passing the budget at Trump's insistence means that his power over them is still intact, at least if he insists enough.

Worse news:  Republicans seem dead set against any meaningful attempt to reign in La Migra.

Worst news of all:  La Migra has a large enough war chest to keep going for years without any further funding.

That means a serious lack of leverage.

 Ah, I see the Department of Justice has released the Epstein files to distract us from the outrages in Minneapolis.

A Response to Conservatives Who Say the Law Must Be Upheld

 

Following Twitter posts and responses, I have seen a certain viewpoint coalesce among the non-crazy right that nonetheless ultimately supports the Minneapolis crackdown.  That viewpoint basically acknowledges that yes, La Migra is engaging in excessive force and yes, this is bad, but it is a side issue.  The real issue is Minneapolis' defiance of the law and Trump cannot relent or he will be creating a de facto mob veto on the laws.  Matthew Yglesias quotes Rich Lowery on the issue and I have seen similar comments by Erick Erickson and Dan McLaughlin.  

So, what do they mean by defiance?  Several answers are possible, but they fit in two main categories -- resistance by government and resistance by private individuals.

Sanctuary policies by state and local government

The usual answer we get is that the feds have to crack down because of blue state and city sanctuary policies.  Invariably, such statements are rather vague about what "sanctuary policies" mean.  Sanctuary policies can mean many different things:

• policies restricting the ability of state and local police to make arrests for federal civil immigration violations, or to detain individuals on civil immigration warrants;
• policies prohibiting “287(g)” agreements through which Immigration and Customs Enforcement (ICE) deputizes local law enforcement officers to enforce federal immigration law;
• policies that prevent local governments from entering into a contract with the federal government to hold immigrants in detention;
• policies preventing immigration detention centers;
• policies restricting the police or other city workers from asking about immigration status;
• policies restricting the sharing of certain information on immigrants with the federal government;
• policies restricting local police responses to federal immigration detainers; and
• policies refusing to allow ICE into local jails without a judicial warrant.

Hence someone denouncing "sanctuary policies" can be making very different demands on state and local governments.  Do they mean that state and local governments should hold any inmate ICE asks to have held for deportation?  That state and local governments should automatically turn over the names of everyone who is arrested so ICE can check their immigration status?  That police and other state and local officials should ask people's immigration status and provide ICE with the information if asked?  That local police should actively take part in immigration enforcement?  Most people denouncing "sanctuary policies" are rather vague on that point.

But in any event, the law is clear.  State and local governments may not actively obstruct or seek to exclude federal officials enforcing federal laws and, in fact, "sanctuary jurisdictions" are well aware of this restriction and are not actively obstructing federal officials.  But the anti-commandeering doctrine says that state and local jurisdictions may not be compelled to enforce federal law.  Any city or state that wishes to passively step aside and leave immigration entirely up to the feds is within its rights to do so.

There have been accusations (can't find link) that government officials may be actively participating in warning immigrants of the presence of immigration officials.  That is more of a legal gray area.

Individual Resistance and the "Mob Veto"

The other, related argument, is that government should not back down and allow laws to go unenforced because of resistance by private citizens.  There can be no doubt, wherever La Migra goes it runs into resistance by private citizens.  The resistance in Minneapolis is particularly intense because the surge there is particularly intense, but the difference is one of degree, not of kind.  Individual resistance can also take legal, semi-legal, and illegal forms.

It is legal to teach immigrants their rights and tell them that they do not have to admit enforcement agents without a judicial warrant.  It is legal to deliver groceries to immigrant homes or hold school online or take other action so that immigrants can avoid going out in public where not warrant is needed.  It is legal to film law enforcement in action.  It is legal to protest outside ICE facilities.  These things make enforcement harder to do, but they are not, in and of themselves, criminal obstruction.

Assaulting federal officials and damaging federal property are crimes, of course, and should be treated as such.  Creating loud disturbances at night in hotels where federal agents are staying may violate some sort of noise ordinance or misdemeanor offense of disturbing the peace.  Seeking to block La Migra from leaving their facility or interfering with an arrest really is criminal obstruction, though some might defend it as civil disobedience.

And then there are people who scan Migra signals, trace Migra vehicles, text out warnings among networks, and follow La Migra honking horns and blowing whistles to warn people away.  There are people who chase La Migra away, yelling and cursing and shouting "Shame!"  I will admit to not knowing enough about obstruction law to know whether or at what point these might be considered criminal obstruction.

So, is it essential for the feds not to back down, even from legal opposition of this type so as not to allow a mob veto?  One obvious response is that it is not unheard-of for government to back off enforcing laws or to change them in the face of overwhelming public opposition.  That is what the Civil Rights Movement was all about, after all.  Or, to take a more recent and less emotionally charged example, the federal government has tacitly allowed is anti-marijuana laws to go unenforced, while many states authorize the most flagrant violations of federal marijuana law.  If the federal government suddenly changed its mind and decided that marijuana laws must be enforced with all rigor, it seems safe to assume that there would be strong resistance at many levels.  Would this resistance be reason to decide that marijuana laws are outdated and should be left alone, or grounds for an all-out crackdown to show that federal authority could not be defied?  Reasonable minds might differ.

Resistance to federal lawlessness

In any event, there is an obvious problem with all of these rather dry and abstract discussions.  They ignore what La Migra is actually doing on the ground.  Its actions go well beyond anything that could possibly be defended as necessary to enforce immigration law and stand up against "sanctuary policies" or a "mob veto."

La Migra is not enforcing the law.  It is being grossly lawless.  It is stopping and harassing anyone who looks too brown.  Meeting a wholly unrealistic arrest quota by random arrests of anyone who isn't white enough.  Entering houses without a judicial warrant.  Leaving abandoned cars across the road, windows broken, seatbelts cut, occupants arrested.  Harassing Somalis, 90% of whom are citizens.  Arresting people who have been granted asylum and shipping them from Minnesota to Texas for groundless "status review."  That is what the good people of Minneapolis, and the people of Los Angeles and Chicago before, have been resisting.  Even if you believe that the feds must continue enforcing immigration law just to show that they won't allow a "mob veto," it does not logically follow that the feds must continue to "enforce the law" in the blatantly lawless manner they have been using.  It is possible to step up immigration enforcement without behaving like complete thugs.

What other enforcement options are there?

I have made various suggestions about measures that might reign in La Migra.  Do I have any suggestions as to how deportations hawks might step up the pace without resorting to all-out lawlessness?  After all, Trump ran as a deportation hawk and won.  He can reasonably say that he has a mandate from the people to step up deportations.  

I can think of several such measures.

In terms of state and local sanctuary laws, the feds can sue the challenge them.  Trump can issue executive orders requiring cooperation from local jurisdictions, or seek anti-sanctuary legislation or withhold funds from sanctuary jurisdictions.  Just to be clear, these measures with all probably fail as unconstitutional "commandeering."  More likely to pass constitutional muster is some sort of measure for offering police assistance to local jurisdictions but making it contingent on cooperating in immigration.

Or, circumvent the refusal to report immigration status of arrestees or honor immigration detainers by trawling through arrest records for immigration status and getting a judicial warrant.  Or show up in courtrooms (public places) when someone with a deportation order is being arraigned.  Or keep a steady court presence just in case.

In terms of general enforcement, vastly expand the number of immigration judges and deportation lawyers to speed up asylum and deportation proceedings.  Remember, it is swiftness of consequences, not severity, that is the most effective deterrent.  Do more employer audits.  Go through outstanding deportation orders, find the individuals, and get a judicial warrant.  

No doubt at this point deportation hawks would ask, would these measures be acceptable to our side.  And the honest answer is probably no.  Then what is the point?  Simple.  All policies have opponents.  No matter what the policy, you will doubtless find many people who do not consider it acceptable.  Normal, healthy politics is all about policy disputes.  But it would reduce the issue of immigration enforcement to an ordinary, mundane policy dispute.  Right now, immigration enforcement is truly a secondary issue.  The primary issue is complete, all-out government lawlessness.

A Plea to Our Side to Watch the Optics

 

Today I went to an anti-ICE protest.  Attendance was remarkable good, given that it was just noticed yesterday.  Cars drove by, honking their horns in support.  I am not sure they would have been so supportive if they had heard what some of our speakers were saying.  Support for the Palestinian cause, which easily translates into support for Hamas.  Saying that our whole system is hopelessly corrupt and must be overturned.  Saying that no one is illegal on stolen land, implying -- and something saying directly -- that the United States is an illegitimate entity.  

Look, up till now we have been frustrated, seeing La Migra's tyrannical behavior as the most important issue, but having to focus on kitchen table issues because that was what the public cared about.  And now, finally, La Migra's full abusiveness has broken through to the general public and become THE issue.  Can we please not blow it?

Anti-anti-Trump conservatives are largely coalescing around a particular view of the situation in Minneapolis, namely, that while La Migra may have used excessive force and they don't approve, the excessive force has to be seen in the context of all the hostility La Migra has been receiving lately, and that Team Trump has to hold firm and not back down or they will be giving a veto to the mob.  In other words, they are portraying La Migra as the forces of law and order and the protesters as the forces of lawlessness and disorder.  

Clearly one way to fight that is to show massive footage of Migra abuse that is neither lawful nor orderly.  Another is to convey to the extent possible just how lawless La Migra has been when the cameras are not watching.  Talk about their harassment of anyone who is not white and demands to see proof of citizenship.  Talk about all the people they have arrested who really were citizens or legal residents.  Try to convey the fear and persecution experienced by people minding their own business simply because they were not white.  And team up with cops here to talk about how much this violates the most basic standards of police professionalism.  Let us, by all means, seek alliance with police to dispel any notion that La Migra stands for law and order.

I would urge our side to keep in mind with every action that it will probably end up being filmed and shown on social media, so always act with that in mind.  I also bear in mind that not everyone sees things the same way we do.  We may see shrieking whistles, honking horns, shouting insults and general hostility as righteous resistance.  At lot of other people will see it as disorderly and abusive and sympathize with La Migra, especially if they stoically accept abuse.  And yes, I understand that the blowing whistles and honking horns are necessary to warn people.  They still aren't pleasant.  And I also understand that while we can control where protests take place, we can't control where La Migra will show up.  And I understand that expecting people to keep their cool in the face of ICE outrages, often against friends and neighbors is a very hard ask.  But this is still the battle for public opinion, so optics should never be far from our minds.

Good optics:

• Protesters dancing in cute inflatable costumes.
• Minneapolis sledding with cute, anti-ICE themes.
• Protesters singing "This Land is Your Land" or "Lean on Me."
• Protesters dressing as Lady Liberty or carrying the flag
• Footage of Migra violence, threats, or abusive behavior.

Bad optics:

• Mexican flags.
• People shouting, cursing, and yelling obscenities at La Migra.
• People obstructing immigration officers on their time off, minding their own business.
• Disrupting church services.
• Anything that looks like a "clash," as opposed to one-sided violence by La Migra.
• Anything that could be termed a mob or a riot.

Homeland Security Funding Battle

 

I am still struggling to understand the Congressional funding rules.  It appears that the House passed the final four bills, agreeing to vote on Homeland Security separately from the others, but then stitched all together and sent to the Senate to approve or reject.  In other words, they are not about to give up their hostages.  Since the Alex Pretti shooting, Democrats have vowed not to vote for the Homeland Security bill.  There has been talk of passing the other bills and allowing only Homeland Security to close, although I cannot see why Republicans would agree to that.

But even if they do agree, Democrats are in a difficult spot.  First of all, refusing to fund the Department of Homeland Security would not just defund La Migra.  The Coast Guard and FEMA are also included.  Furthermore, the proposed ICE budget is $10 billion.  Funds given to ICE in the One Bad Bloated Boondoggle -- $75 billion.  In other words, even if Democrats were to cut off all funding for ICE, they would have a war chest large enough to last to the end of the Trump Administration and the first term of a hypothetical future Democratis Administration!  

All of which means that we have to face facts.  Sooner or later Democrats will climb down and agree to some sort of deal to fund DHS in order to restore funding to the Coast Guard, FEMA, etc.  Not funding ICE at all will not so much as crimp its operations.  At best, Democrats can seek to impose some restrictions on La Migra.  I have made some suggestions and can think of more.  Possibilities include:

• Outlaw arrest quotas and incentives.  This has the advantage that it would probably appeal even to ICE agents themselves and the disadvantage that it might be seen as unconstitutional micro-managing of the executive by the legislature.  But it is the wholly unrealistic arrest quotas that are driving everything else.
• Ban Border Patrol from internal enforcement.
• Strengthen Congress's authority to inspect immigration detention facilities.
• Mandate that La Migra follow the pattern of any other law enforcement agency -- any officer who discharges a firearm is to be suspended during (mandatory) investigation.
• Limit the President's power to fire immigration judges for making decisions he doesn't like.
• Require release on bond for anyone with a plausible claim to legal status who has strong ties to the community and is not a flight risk.
• Clearly define what is deemed to be proof of citizenship and require immigration agents to release anyone who can show it.
• Affirm the right of citizens to film and protest, perhaps setting more clearly defined limits of how close they can get and what constitutes "interference."
• Require a judicial warrant to enter a private space.
• Make clear that murder and mayhem on the job are prosecutable under state law.
• Create individual civil liability.
• And possibly, as a sop to Republicans, make it easier for La Migra to access arrest records and put a hold on people in custody.

Of course, I doubt that most of these would get past Republicans in Congress, let along Trump's signature.  But that it is where we, the people, come in.  Our job is to create political pressure.

What the Fresh Hell?!

 So let me get this right.  Donald Trump, after huffing and puffing and threatening war over Greenland has now backed off and agreed to basically indefinite negotiations that will probably end in expanded military bases that were his for the asking.  

I can see any number of possibilities of what happened.

• The bond market cracked its whip and Trump jumped into line.
• European leaders stood up firmly and he backed down.
• The European leaders flattered and cajoled him into a deal.
• Trump thinks that a deal gotten through threats and coercion is much better than the identical deal given voluntarily.
• Trump thinks that his base is more likely to applaud the deal if it seems to have been gotten by force.
• Trump likes stirring up crises so he can get credit for resolving them.
• It was an attempt to distract attention from his flagging approval at home.
• Trump was getting bored and wanted to stir up a little excitement.  After a while, he got bored with the crisis and decided to move on to something new.

I suspect there is some truth in many of these things.  But my guess is that the first explanation is primary.  The bond market cracked its whip and Trump jumped into line.  

I never thought I would say this, but let's all be grateful for the bond market.