Latest on Trump's Power

I previously offered eleven signs to look for to suggest that Trump's power might be diminishing, or at least that he might be taking longer than he had hoped to consolidate it.

1. Media outlets bought by Trump allies are willing to criticize or oppose him;
2. Republicans in Congress splinter and Trump cannot bring them into line;
3. Attempts to target opposing organizations through taxes or RICO are thrown out, or never materialize;
4. Universities, high power law firms, and other institutions targeted by Trump start consistently defying him;
5. The Supreme Court makes a meaningful attempt to reign Trump in;
6. Democrats win control of the House and Trump cannot stop them;
7. Democrats win control of the Senate and Trump cannot stop them;
8. Growing numbers of state and local jurisdictions reject cooperation with ICE, putting more strain on the organization;
9. ICE starts losing personnel faster than it can recruit them and begins shrinking;
10. Trump supporters stop making death threats and harassment against people who he criticizes;
11. Big money interests start standing up to him.

Looking it over, I do want to make a few changes. More significant than continued media independence but less significance than loss of control over Republicans in Congress would be Trump losing control of Republicans at the state level.

And I really was too snarky in suggesting that the ultimate sign of his downfall would be defiance by big money interests. Certainly that would happen very late in the game, and only if big money interests were certain that Trump was finished. What will never end is death threats by a few supporters. No matter how unpopular Trump may become, in a country with a population over 300 million there will always be some supporters left. And it doesn't take many to be online terrorists.

So, by these new standards, where are we?

1. Media outlets bought by Trump allies are willing to criticize or oppose him. Look, I haven't been following all the in's and out's of CBS News or the Washington Post. Both, I realize, are failing because they are alienating their old audiences while being too establishment to attract new ones. But I do see critical stories in both.
2. State Republicans defy Trump. Indiana Republicans defied him in refusing to gerrymander. And now when Trump excluded Democrats from his meeting with the National Governor's Association, Oklahoma Republican Governor Kevin Stitt let it be known that Republican governors would not attend if their Democratic colleagues were not invited. Trump backed down. Stitt also criticized Trump's proposal to deploy the Texas National Guard to Chicago last October. An encouraging sign.
3. Republicans in Congress splinter and Trump cannot bring them into line. Well, Congressional Republicans famously revolted over the Epstein files. None House Republicans defied Trump to vote for Obamacare subsidies, although they did so with the knowledge that the measure would fail in the Senate. And six House Republicans voted against tariffs, a meaningless vote. Trump was still able to twist House Republican arms and get them to fund the government except Homeland Security. I suppose the real tests will be over voting restrictions and attempts to reign in ICE.
4. Attempts to target opposing organizations through taxes or RICO are thrown out, or never
   
   materialize. This one is a mixed bag, and a disturbing one. I think we can say that Stephen Millers "all of government" attempt to shut down the opposition has been dropped. At the same time, a very disturbing memo, alleging that "Antifa" was engaged in widespread terrorism, including "organized doxing of law enforcement, mass rioting and destruction in our cities, violent efforts to shut down immigration enforcement, targeting of public officials or other political actors." In terms of specific examples, the memo listed the assassination of Charlie Kirk, the attempted assassination of Donald Trump, and numerous actions opposing ICE. The memo called for federal law enforcement to review their files within 14 days and make a report, and for granted to local law enforcement to be conditional on cooperation against "terrorism."  It also called for setting up a tip line and cash rewards within 30 days and a report on "Antifa" and associated groups within 60 days.  Given the focus on doxing and obstructing law enforcement and anti-ICE actions, the memo gives the distinct impression that immigration advocates are the targets.  Terrifying reports are coming out about ICE spying on activists, and using social media and other internet tracking tools to evade the need for warrants.  Team Trump appears to have decided that dissent will be tolerated -- except in matters of immigration.
5. Universities, high power law firms, and other institutions targeted by Trump start consistently defying him.  Well, UCLA faculty and unions apparently won a victory on behalf of the university. Unions had an employee reinstated when he was fired for heckling Trump.  So some institutions are standing up to him. But not enough to make a trend.
6. The Supreme Court makes a meaningful attempt to reign Trump in.  The Supreme Court has made a bizarre ruling limiting Trump's ability to deploy the National Guard until the regular army has failed to keep order.  It doesn't make sense and seems like a potentially pyrrhic victory, but thus far it has prevented any further deployments of the National Guard.  The bad news:  ICE is effectively a paramilitary, not so well behaved as the National Guard.  On the other hand, ICE has a lot less personnel than the National Guard.  Coming up:  rulings on tariffs, Federal Reserve independence, and birthright citizenship.  Stay tuned.
7. Democrats win control of the House and Trump cannot stop them.  Clear attempts to rig the election by voting restrictions are underway.  Stay tuned.
8. Democrats win control of the Senate and Trump cannot stop them.  Ditto.
9. Growing numbers of state and local jurisdictions reject cooperation with ICE, putting more strain on the organization.  Newly elected Virginia Governor Abigail Spanberger has terminated state police agreements with ICE, but allows local police to continue such agreements.  I recall hearing a Maine sheriff recently breaking up with ICE after they targeted one of his deputies, but cannot find the link.  These are promising but still fall well short of a trend.
10. ICE starts losing personnel faster than it can recruit them and begins shrinking.  One hears about discontent in the ranks, but none of that has actually led to widespread resignations.  The Department of Justice, by contrast, has seen widespread resignations, to the extent that its is experiencing serious personnel shortages and being limited in its ability to function.  The federal prosecutor in charge of Somali fraud investigations is actually representing Don Lemon!  So the federal government is actually seeing a reduction in its coercive power -- just not where it matters.
11. Big money interests start standing up to him.  No.  If Trump's power collapses, this will be a very late sign.
12. Trump supporters stop making death threats and harassment against people who he criticizes.  Ain't gonna happen, for the reasons discussed above.

Looking Back to My Comments on How to Handle Immigration

 

I have been looking back at my earlier comments on what I recommend immigration activists do to see how they stack up to how things have proceeded (thus far).  

Well, first of all I was wildly over-optimistic in thinking that labor shortages would eventually make Republicans relent.  There is no sign of it yet.

But what about my recommendations to a activists?  My suggestions were as follows:

Flood social media with images of ICE outrages. Done. And it seems to be working, at least in terms of shifting public opinion.

Send Congress to investigate detention centers. Congress has been doing its best, but ICE has frequently not been complying.

Deploy white people. That has certainly been done in Minnesota. Not that there has been much choice. People who are not white in Minneapolis are not safe.

Have a song and a symbol.  I recommended something well-known or easily learned, something that comes from the heart, and something that conveys moral authority.  The cute costumes in Portland were a good start.  Minneapolis appears to have come up with a song -- "Lean on Me."  It seems a good choice -- well-known or easily learned, and conveying a sense of solidarity. 

Make Stephen Miller our hate sink. Stephen Miller has been mentioned, but so far Team Trump has managed to deflect -- making Greg Bovino the face of mass deportations and then offering him up as their sacrifice, also drawing attention to Kristi Noem. Kristi Noem may end up losing her job, for all the good that will do, but Miller seems safe.

Avoid causing violence or disruption. I wrote that about a month after there had been riots in Los Angeles -- not on a par with the 2020 riots, but riots nonetheless. Since then, ICE has launched other blitzes -- primarily in Chicago and Minneapolis, but on a smaller scale in Washington, DC, Boston, Charlotte, and New Orleans. Clashes, confrontations, hostile insults and the like happened, but no riots on a comparable scale to Los Angeles. Let's keep it that way, and cut down even on the hostile insults.

Create a pipeline for ICE officers who want to quit. It has occurred to me that the one advantage of ICE agents wearing masks is that if they ever do want to quit, they can blend back into society without their past being known. It is irrelevant, however. ICE has grown, rather than shrunk.

Above all, seek out allies and minimize enemies. I made some suggestions.

Immigrants and immigration activists. Obviously.

Anti-Trump activists. Ditto.

The Catholic Church. The Catholic Church has taken a strong position against these mass deportations.

Evangelical megachurches. I was reading accounts of ICE raids on Evangelical mega-churches and hopes they would join the general outrage once their own were targeted. So far that has not happened. However, mainline Protestant churches, long forgotten, have appeared out of the woodwork and voiced their opposition.

Veterans. I hoped that Afghan War veterans would speak up on behalf of Afghans who what put their lives on the line for us and were facing being returned to the Taliban. Certainly Afghan War veterans were great champions of their comrades who Biden failed to get out of Afghanistan. This time around, however, they have disappointed..

Animal lovers. I suggests this because pets had been abandoned after their owners were arrested. It seemed like a good hook for people all across the political spectrum. Nothing much seems to have happened, though.

Texas and Florida Republicans. There is some sign that Republican politicians from both states are becoming concerned that mass deportations will hurt their prospects. Whether it will lead them to support actual constraints on ICE remains to be seen.

Police. This has been a mixed result. On the one hand, when bystanders interfere with ICE making arrests, local police have little choice but to enforce laws against obstructing law enforcement. Anyone who wishes to engage in civil disobedience and seek to physically block ICE needs to understand the consequences. And this has hurt police-community relations. On the other hand, police seem to be widely outraged by La Migra's failure to meet with the most basic professional standards enjoined on ordinary police.

Unions. There have been unions championing members.

Employers. This has happened to some degree with small employers. Big money interests have been extraordinarily craven, which is a shame. The thing most likely to put this outrage to an end is if big money interests use their influence against it.

Reigning in versus Defunding ICE

 

There is a factional disagreement on our side on how to handle the Homeland Security shutdown and ICE.

On the one side are people, including most Democrats in Congress, who want to make any funding for ICE and Border Patrol conditional on serious laws reigning them in.  On the other side are people who propose denying ICE and Border Patrol any funding whatever regardless.  The argument for no funding as that La Migra hasn't shown any disposition to obey laws up till now, so why should they start just because Congress passes some.  Sure, they also have a large war chest, but at least we should make them spend it down, and the prospect of not receiving new funding for the next two if Democrats win the midterms will discourage any further expansion.  The opposing argument is that even if withholding funds crimps La Migra's expansion, it will not make the goons behave any better, and they can wreck a lot of havoc before midterms.

I see a great deal of merit to both viewpoints.  However, ultimately, I would come down on the side of enacting laws to reign La Migra in.  If ICE's annual budget is about $10 billion and their war chest is $75 billion, then they have enough funds to keep going at their present rate until the end of Trump's term and his predecessor's term even if they do not receive any additional funding.  Their present behavior is not tolerable, not for months, let alone years.

On the other hand, lawless as La Migra has been, they have not been wholly impervious to legal, judicial, and political pressure.  Restraining orders have had at least some effect on them, even if it has not been enough, and the outcry appears to have made them at least somewhat less trigger happy.  Making the laws they are breaking crystal clear and leaving no room for ambiguity will make it a least somewhat harder for La Migra to defend breaking them.  Laws alone will not reign in La Migra, but unmistakably clear laws, combined with courts ordering compliance and unrelenting political pressure might just begin to reign ICE in right now, as opposed to after some future election.  And reigning La Migra in now is vital to ensuring that there will be free and fair elections down the line.

PS: One other obvious reason: So long as La Migra is uncertain whether it will receive funding, it will have at least some incentive to show some restraint.  It the answer is a firm and unequivocal no, all such incentive disappears.

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.