Category Archives: law

The Only Even Remotely Legitimate Move Re TPS

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The Supreme Court heard last Wednesday in an expedited manner (“certiorari before judgment” for the judicial nerds among us) oral argument in a case centered on whether a President’s Executive Branch agency can withdraw, on its own recognizance, Temporary Protected Status from immigration populations who remain here under that status. Several District and Appellate courts have said no, not without (judge-determined) sufficient interagency review of the matter.

The governing statute is quite clear: granting, withdrawing, extending, or not extending temporary protected status for folks from particular nations is not a justiciable matter; courts have no standing to adjudicate these decisions.

The only legitimate recourse those demanding TPS be extended/maintained for Haitians (for instance) is to argue that that governing statute limit is unconstitutional and should be struck. Even this, though, is itself doomed to failure. Here’s Art III, Sect 2, Clause 1 on judicial jurisdictions:

The [Supreme Court] judicial Power shall extend to all Cases, in Law and Equity…to Controversies to which the United States shall be a Party….

DHS, which is the agency with TPS responsibility within the United States, most assuredly is “the United States” in this context.

Here’s Art III, Sect 2, Clause 2 on judicial jurisdictions:

…the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Under the Immigration Act of 1990 as amended, which created the Temporary Protected Status facility, there “is no judicial review of any determination” of the DHS secretary “with respect to the designation, or termination or extension of a designation, of a foreign state.”  That’s a pretty clear act of setting such Regulations—limiting the courts’ jurisdiction—here withdrawing TPS actions from judicial scrutiny.

And Art III, Sect 1:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Federal District and Appellate courts, being inferior to the Supreme Court are bound by those same jurisdictional limits.

For good or ill, US courts have nothing to say regarding any aspect of Temporary Protected Status settings.

The Act, as amended, can be read here. The Act withdrew references to court jurisdiction and placed that jurisdiction within the State or INS district, or in the main, within the DHS.

A Powerful Security Tool

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That’s what Anthropic’s Mythos package is. Anthropic already has released it to 50 companies and organizations, and now it wants to release Mythos to an additional 70. This would be a terrible mistake of highly destructive proportions for our national security. The White House is entirely correct to object and to move to get Anthropic to not release it further.

In my not very humble opinion, the 50 releasees already are ‘way too many. As The Wall Street Journal‘s news writer noted, Mythos is fully capable of find[ing] and exploit[ing] software vulnerabilities.

As such, Mythos is the beginnings of both a powerful offensive weapon and a critically proactive defensive tool. Release it too widely, and it becomes a powerful offensive weapon and critically proactive defensive tool in the hands of our enemies. Leaks happen. As the adage so correctly has it, telling a secret to three people makes it no longer secret. Fifty is dangerously larger than three, and those additional seventy guarantee widespread access to Mythos by our enemies.

The better solution would be to leave Mythos in its currently restricted release state, and let Anthropic, or DHS/DoD apply it on request to any company wanting its software inspected for vulnerabilities. Let DHS/DoD encourage companies above a size (TBD) to ask for the inspection, with that inspection coming at a nominal fee. Companies above that size that do not apply for a Mythos inspection that are then successfully cyber attacked should be fined heavily for their negligence. With the availability of a tool like Mythos, the existence of a successful cyber attack would be prima facie evidence of the victim’s negligence.

Dangerously Naïve Assumption

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Matthew Continetti, in his Free Expression piece, had this early on:

Yet Democrats are looking at the wrong maps. They’re winning the gerrymander battle while losing the larger war for America’s future. Their state machines produce Democratic victories, but from a shrinking base. Their populations are fleeing high taxes and housing shortages for Republican strongholds. Nor are Democrats prepared for 2030, when the decennial census will realign national politics toward the GOP-friendly South.

As Continetti noted,

House Minority Leader Congressman Hakeem Jeffries (D, NY) threatened retaliation and summed up his party’s philosophy: “Maximum warfare, everywhere, all the time.”

But he missed the implications of that, and that miss falsifies his underlying assumption that the Census Bureau count and subsequent House Representatives reallocation will occur in the normal fashion. That’s a dangerous miss, but he’s not alone in making that naïve assumption. No one in the press is thinking about the effect on the Census Bureau of Progressive-Democratic Party victories in the next two elections.

When the Progressive-Democrats gain control of the House and possibly the Senate after the 2026 elections, retain House control and retain or gain the majority in the Senate while winning the White House in the 2028 elections, this is what Party will do. First, it will use its Senate majority, possibly as early as January 2027, to gain outright control of the Senate by eliminating the filibuster altogether. That’ll be bad enough, devolving us from the liberty-preserving republican democracy of our present government structure to the tyranny of popular democracy.

Next, they’ll rescind any requirement for voters to show ID in order to vote, and they’ll lift restrictions on who is allowed to cross our border and under what conditions. To prevent States like Texas from doing their own border enforcement, they’ll pack the Supreme Court in order to get the judicial rulings they want regarding immigration and voting rights.

Finally, they’ll use all of that to cement for generations Party control over the popular democracy they will have created: they’ll alter the rules of counting the Census Bureau is required to use to prevent just that Representative reallocation in order create and preserve their Electoral College advantage.

There’s one more step that will put a big, blue bow on it. Many of the Progressive-Democratic Party-run States are making agreements among themselves to have each State award its Electoral College votes to the Presidential candidate that wins the national-level popular vote. Interstate agreements or compacts are illegal without explicit Congressional approval of each agreement or compact attempted, per our Constitution’s Art I, Sect 10, Clause 3. The Party-run Congress will promptly approve those agreements.

Our nation faces nation-defining elections in 2026 and 2028. The futures of our children and grandchildren and their children and grandchildren depend on the outcomes of those elections.

Right Answer, Wrong Reason

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In 2023, Texas enacted its Senate Bill 4, which

makes illegal entry into Texas a state crime. It gives Texas law enforcement the authority to return illegal foreign nationals to a port of entry and/or arrest them for unlawful entry, among other provisions.

Governor Greg Abbott (R) justified the law on the basis of the Biden administration’s open borders policy which required Texas to act on its national Constitution Art I, Sect 10 obligation to resist the functional invasion that resulted. Progressive groups promptly sued.

Last Friday, the 5th Circuit upheld that law. That was the correct answer, but the court did it for the wrong reason, so the critical underlying question remains unaddressed.

On Friday, the court issued a 12-page ruling solely on procedural grounds, arguing the plaintiffs didn’t have standing to sue. It didn’t address the merits of the claims.

This ruling, avoiding as it does the constitutionally important question that was raised by the suit, is badly flawed. That question is this: does a State have the right (much less the obligation) to enforce its own border with another country when it believes the Federal government is not enforcing that same border, and material harm to the State and to its citizens result?

Chief Justice John Mashalll writing for the Court in 1803’s Marbury v Madison, made all judges’ obligations crystalline:

It is emphatically the province and duty of the judicial department to say what the law is.

To say what the law is, to speak up, not to avoid that duty by deflecting on procedural grounds.

That’s not to say judges should never consider questions of standing or other procedure; that way lies tons of fee-seekers bringing cases without regard to necessary procedure. As the 5th Circuit wrote,

Federal courts have a solemn responsibility to apply neutral principles, such as standing, to the cases that come before them and must resist the temptation to confer Article III standing any time an advocacy group or political subdivision challenges a law it passionately dislikes.

But the province and duty of judges does require them to say what the law is and to act on that saying. Doing so need not automatically confer Article III standing for every case concerning a passionately disliked issue. The Supreme Court has begun applying the Major Questions Doctrine to cases involving the limits of Executive Branch power vs the Legislative Branch’s. The Court needs to apply a similar Major Controversies Doctrine to its decisions regarding whether a case’s core question is more or less important than the specifics of procedure in that case.

The 5th Circuit’s ruling can be read here.

Dangerous Mistake

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The Trump administration is completing its move to change the classification of marijuana from a Schedule I drug…alongside LSD and heroin…to Schedule III, making it obtainable with a prescription.

This is a mistake on two fronts. The first is that marijuana is a highly dangerous drug, having been bred explicitly to strengthen its effects. Those effects include brain damage on developing brains, and human brains are always developing; although the pace of development slows markedly in a human’s middle twenties. The damage done, too, isn’t like a smoker’s damage to his lungs, which can be mostly repaired if the smoker stops smoking. Despite the plasticity of our brains, damage done chemically by the materials in marijuana is permanent.

That leaves aside the slowed reflexes and impaired judgment of a marijuana user while he’s using. Driving or operating machinery while under the influence of marijuana is just as dangerous to the user and to others as is driving or operating machinery while drinking alcohol.

The other front is that this is the wrong place to make money. The profits from universally legal cultivation and sale of marijuana qua marijuana is just chump change compared with the profits available from commercializing marijuana for medicinal use. There is a plethora of anecdotal evidence that marijuana helps with pain management, PTSD, depression, and the like. That warrants serious research to determine the specific chemicals and chemical combinations in marijuana that have these and potentially other medicinal benefits.

With that successful research, and I submit that with concerted effort by a variety of pharmaceutical companies, success is within five years, the cultivation of marijuana for medicinal purposes and the extraction of those chemicals and chemical combinations can be done under license (which we already know how to do in the narcotic medicine venue). Those actual medicines then can be sold under prescription or over the counter, depending on the specific combination. (I’m eliding here the fact that herbal medicine—which is what marijuana would be, even by prescription—suffers badly from inconsistent dose control.)