Thank you, Steve- here is the comment I just sent you via email for those who might like to see it, dealing with this very troubling Supreme Court order.
1234
Jim George
Member
Jim George @JimGeorge
49 Minutes Ago
Full Size Tabby (View Comment):
The big question is the boundary between the states’ general police powers to maintain public order in their territories and the exclusive jurisdiction of the federal government to control the international borders under the United States Constitution.
Thank you for your very thorough review of this area of the law. Please permit me to raise a few points of disagreement with some of your major premises, with, of course, the utmost of respect, and with a sincere request that if you disagree with some of my conclusions that you will feel more than free to share those disagreements and the basis upon which you hold them.
The question which prompted your comment was:
Freeven (View Comment):
Can anyone point me to a sound, layman-accessible, summary of the Constitutional issues involves here?
Before I wrote my comment #61 above, as I said in opening the comment, I carefully studied the Fifth Circuit opinion by Judge Kyle Duncan and I have re-read it and re-studied it again before starting this discussion. Based on what I read in that opinion, there really is no Constitutional issue presented in that opinion but it involves solely a question of statutory interpretation, i.e., whether the language of 5 USC 706(2)(c) was broad enough to constitute a Congressional waiver of the Sovereign Immunity defense the government would ordinarily have. The District Court recognized that the statute generally does waive such immunity defense but nevertheless held that because it did not “unequivocally” encompass the specifics of Texas’ claim it could not be held to waive this particular claim.
Summarizing the next few pages of the opinion, the Fifth Circuit held that in its interpretation of the statute the language was broad enough to waive the sovereign immunity defense and that the suit should be allowed to continue to argument on the merits. Thus, as they found that Texas had satisfied the factors necessary for an injunction pending appeal, the first of which was whether Texas had a strong likelihood of success on the merits, they granted the injunction pending appeal. This finding, and the fact that it, along with the rest of the Fifth Circuit’s opinion was reversed by the Supreme Court order, was what prompted my comment above. The Court said:
We begin with Texas’s likelihood of success on the merits of itscommon law trespass to chattels claim. For purposes of theTRO, the districtcourt concluded Texas was likely to prevail on this claim.But the court nonetheless deniedTexas’s requested preliminary injunctionbecause it concluded that 5 U.S.C. § 702 did not clearly waive sovereign immunity for claims of this sort. We disagree.Case: 23-50869 Document: 49-2 Page: 7 Date Filed: 12/19/2023
Therefore, if I am correct in my understanding that the issue of the usual broad soverign immunity of the government was not the main point here but that as a matter of statutory interpretation that immunity had been waived by Congress for certain types of cases and this was one of them, there really was no issue of the exclusive jurisdiction of the government over the border. Not to repeat #61 but the reason I find this Order of the Supreme Court so troubling is the message it impliedly sends that one of the most truly conservative Justices, Amy Coney Barrett, thinks, like the District Court, that this statute may as well not even exist and/or that it does not mean what it says. If that is what she thinks then she is clearly not the textualist we were told she is. Please be so kind as to let me have your views on where, or whether, I have gone astray as I am, like all of us, trying to understand this entire puzzling case, not to mention the surreal fact that we have a “President” who simply refuses without consequence to “faithfully execute the laws” of our Nation.
I don't pretent to be a scholar of any kind. But I do question the Supreme Court Justices on Texas razor wire. Did they use the 10th amendment to reach their decision? It appears to me that they use word "Implied " as their guideline. Trafficking of human beings and illegal drugs is unlawful in which states have jurisdiction to bar from their states (commerce and trade). Who were they trying to satisfy?
It doesn't matter what level of government or judicial appointees you have been appointed or elected, when you denied due process or failed to allow the individual the rights guarantee by the Constitution and the Bill of Rights, you have become a VIGILANTE. Your first paragraph identify all of them,and the judges.
We can and we must. If we want to be a Constitutional Republic . Anything else has been recycled with the same results. ..NO LIFE. LIBERTY AND THE PURSUIT OF HAPPINESS.
Thank you, Steve- here is the comment I just sent you via email for those who might like to see it, dealing with this very troubling Supreme Court order.
1234
Jim George
Member
Jim George @JimGeorge
49 Minutes Ago
Full Size Tabby (View Comment):
The big question is the boundary between the states’ general police powers to maintain public order in their territories and the exclusive jurisdiction of the federal government to control the international borders under the United States Constitution.
Thank you for your very thorough review of this area of the law. Please permit me to raise a few points of disagreement with some of your major premises, with, of course, the utmost of respect, and with a sincere request that if you disagree with some of my conclusions that you will feel more than free to share those disagreements and the basis upon which you hold them.
The question which prompted your comment was:
Freeven (View Comment):
Can anyone point me to a sound, layman-accessible, summary of the Constitutional issues involves here?
Before I wrote my comment #61 above, as I said in opening the comment, I carefully studied the Fifth Circuit opinion by Judge Kyle Duncan and I have re-read it and re-studied it again before starting this discussion. Based on what I read in that opinion, there really is no Constitutional issue presented in that opinion but it involves solely a question of statutory interpretation, i.e., whether the language of 5 USC 706(2)(c) was broad enough to constitute a Congressional waiver of the Sovereign Immunity defense the government would ordinarily have. The District Court recognized that the statute generally does waive such immunity defense but nevertheless held that because it did not “unequivocally” encompass the specifics of Texas’ claim it could not be held to waive this particular claim.
Summarizing the next few pages of the opinion, the Fifth Circuit held that in its interpretation of the statute the language was broad enough to waive the sovereign immunity defense and that the suit should be allowed to continue to argument on the merits. Thus, as they found that Texas had satisfied the factors necessary for an injunction pending appeal, the first of which was whether Texas had a strong likelihood of success on the merits, they granted the injunction pending appeal. This finding, and the fact that it, along with the rest of the Fifth Circuit’s opinion was reversed by the Supreme Court order, was what prompted my comment above. The Court said:
We begin with Texas’s likelihood of success on the merits of itscommon law trespass to chattels claim. For purposes of theTRO, the districtcourt concluded Texas was likely to prevail on this claim.But the court nonetheless deniedTexas’s requested preliminary injunctionbecause it concluded that 5 U.S.C. § 702 did not clearly waive sovereign immunity for claims of this sort. We disagree.Case: 23-50869 Document: 49-2 Page: 7 Date Filed: 12/19/2023
Therefore, if I am correct in my understanding that the issue of the usual broad soverign immunity of the government was not the main point here but that as a matter of statutory interpretation that immunity had been waived by Congress for certain types of cases and this was one of them, there really was no issue of the exclusive jurisdiction of the government over the border. Not to repeat #61 but the reason I find this Order of the Supreme Court so troubling is the message it impliedly sends that one of the most truly conservative Justices, Amy Coney Barrett, thinks, like the District Court, that this statute may as well not even exist and/or that it does not mean what it says. If that is what she thinks then she is clearly not the textualist we were told she is. Please be so kind as to let me have your views on where, or whether, I have gone astray as I am, like all of us, trying to understand this entire puzzling case, not to mention the surreal fact that we have a “President” who simply refuses without consequence to “faithfully execute the laws” of our Nation.
I am reading your essay. I am not finish reading it. And your comments are very good. I'll let you know more when I get to finish reading it.
Today Biden give the State of Dis-Union Speech. Wlii it be the shortest on record ( he doesn't want to get in trouble), or pre-recorded?
I don't pretent to be a scholar of any kind. But I do question the Supreme Court Justices on Texas razor wire. Did they use the 10th amendment to reach their decision? It appears to me that they use word "Implied " as their guideline. Trafficking of human beings and illegal drugs is unlawful in which states have jurisdiction to bar from their states (commerce and trade). Who were they trying to satisfy?
It doesn't matter what level of government or judicial appointees you have been appointed or elected, when you denied due process or failed to allow the individual the rights guarantee by the Constitution and the Bill of Rights, you have become a VIGILANTE. Your first paragraph identify all of them,and the judges.
We can and we must. If we want to be a Constitutional Republic . Anything else has been recycled with the same results. ..NO LIFE. LIBERTY AND THE PURSUIT OF HAPPINESS.