fascinating analysis. One part that disturbs me. Say a migrant is able to get through the wire, injured, bleeding, but here. Is the border patrol supposed to send them back through that same wire, now injured and thus that much more likely to be unable to save themselves?
It's sort of like a situation during a curfew, when people escaping from a burning building are forced back into the building because they aren't allowed to be on the streets.
"The district court is making the officers out to be completely incompetent—sending the migrants on their merry way, totally oblivious to the fact that thousands of them are hopping the fence. The officers insist that there were agents stationed along the road and no one ever saw any migrants escape. From my perspective, a conclusion that officers were 'culpable and duplicitous' should rest on more than a hearsay statement from an unidentified Texan with a photographic memory."
This strikes me as an unfair characterization of the district court opinion, which makes pretty clear that part of the "duplicitous" conduct at issue is that based on the objective evidence such as video, the judge concluded CBP's witnesses were not being candid about what really happened.
This is a helpful post (particularly as to the Border Patrol’s authority to turn back aliens at the border) and your bottom-line reaction tracks my own.
The analogy to prison-reform litigation is what immediately came to mind when the SG’s stay application surfaced and I read through the lower court decisions. Once you’ve accepted that Texas doesn’t have an absolute right to prevent interference with the fencing, the notion that this situation is susceptible to management by federal court injunction is just untenable.
“I’m not persuaded. No witness was able to testify that “4,555 migrants entered during this incident.” Instead, Texas’s witness—described as the “Border Czar for the State of Texas”—says that some unspecified Texas National Guardsman gave him that number. Are we supposed to believe that this Texas National Guardsman was able to count up to this precise number during this chaotic incident? Meanwhile, there was testimony at trial that it often takes several days to process detainees, making the number of detainees processed that day completely irrelevant.”
At least 6.3 million migrants have entered the country at and between ports of entry since Biden took office….
It seems perplexing to me if correct legal arguments all take the shape of making it easier, not harder, for illegal immigration to happen. In particular it's perplexing, in commonsense terms, to interpret border patrol agents' duties as being to detain migrants, and thus to let them over the border to be detained, rather than not let them over the border at all. I mean, at that point, why have a border patrol at all, if the net effect is for them to bring *more* migrants over the border, to 'process' them?
When supposedly correct legal arguments are uniformly anti-commonsense, it is the law or even the structure of 'correct legal arguments' that needs to change.
fascinating analysis. One part that disturbs me. Say a migrant is able to get through the wire, injured, bleeding, but here. Is the border patrol supposed to send them back through that same wire, now injured and thus that much more likely to be unable to save themselves?
It's sort of like a situation during a curfew, when people escaping from a burning building are forced back into the building because they aren't allowed to be on the streets.
"The district court is making the officers out to be completely incompetent—sending the migrants on their merry way, totally oblivious to the fact that thousands of them are hopping the fence. The officers insist that there were agents stationed along the road and no one ever saw any migrants escape. From my perspective, a conclusion that officers were 'culpable and duplicitous' should rest on more than a hearsay statement from an unidentified Texan with a photographic memory."
This strikes me as an unfair characterization of the district court opinion, which makes pretty clear that part of the "duplicitous" conduct at issue is that based on the objective evidence such as video, the judge concluded CBP's witnesses were not being candid about what really happened.
This is a helpful post (particularly as to the Border Patrol’s authority to turn back aliens at the border) and your bottom-line reaction tracks my own.
The analogy to prison-reform litigation is what immediately came to mind when the SG’s stay application surfaced and I read through the lower court decisions. Once you’ve accepted that Texas doesn’t have an absolute right to prevent interference with the fencing, the notion that this situation is susceptible to management by federal court injunction is just untenable.
“I’m not persuaded. No witness was able to testify that “4,555 migrants entered during this incident.” Instead, Texas’s witness—described as the “Border Czar for the State of Texas”—says that some unspecified Texas National Guardsman gave him that number. Are we supposed to believe that this Texas National Guardsman was able to count up to this precise number during this chaotic incident? Meanwhile, there was testimony at trial that it often takes several days to process detainees, making the number of detainees processed that day completely irrelevant.”
At least 6.3 million migrants have entered the country at and between ports of entry since Biden took office….
It seems perplexing to me if correct legal arguments all take the shape of making it easier, not harder, for illegal immigration to happen. In particular it's perplexing, in commonsense terms, to interpret border patrol agents' duties as being to detain migrants, and thus to let them over the border to be detained, rather than not let them over the border at all. I mean, at that point, why have a border patrol at all, if the net effect is for them to bring *more* migrants over the border, to 'process' them?
When supposedly correct legal arguments are uniformly anti-commonsense, it is the law or even the structure of 'correct legal arguments' that needs to change.