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Immigration and the rule of law II: Reply to RAF

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(Title is a bit off because there’s nothing much about immigration here, but I started the series with “I” and III will return to a substantive discussion of immigration, and this belongs in the series).

Russell Arben Fox has written a thoughtful reply to my last post, in which he also gives his answer to some pointed questions that were posed to him in comments. This post is helpful in that it’s clarifying to me; I think I have a much better sense of what he’s coming from than I did before. That clarity doesn’t move me toward his position, however, if anything it makes me more confident in my own. Russell takes from my post and related discussion four questions for him which he seeks to answer here:

1)  What is the difference between constitutionality and legality, and do I think one is prior to the other?
2) What does procedural traditions, norms, and precedents have to do with either of those?
3) What specific norms do I think Obama’s action violated, in light of the actually existing history of executive orders?
4) Isn’t it irresponsible to toss around terms like “unconstitutional” in our current political climate anyway?

The fourth question wasn’t from me and I’m not particularly worried about it; I could see this being a reasonable worry if he were using his idiosyncratic definition of ‘unconstitutional’ (yet lawful) without further explanation in an op-ed in a major newspaper or something, but in a philosophically inclined intra-blog discussion such worries seem out of place to me. I’m most interested in the third question. I’ll follow Fox in taking the first two together in this post, and address #3 at greater length in a separate post.

Taking the first two together, Fox basically defends a conception of his focus on a conception of constitutionalism and the rule of law that focuses entirely on, as I put it, the relationship between different parts of the government and not the relationship those parts have with the governed, situating himself in a venerable tradition of democratic political theory associated with, amongst others, Hannah Arendt and Sheldon Wolin (One that I’m hesitant to call ‘radical’ even as it has become customary to do so; as Fox’s deployment of it clearly demonstrates it can have quite conservative implications, in both the small-c and contemporary political uses of the term).

The primary source for my disagreement is my rejection of the substantive claim that Obama’s executive order “violates symbolic precedents and procedural norms” and “show(s) disrespect for (admittedly, always evolving) informal expectations and procedural rites” to a degree that we should be troubled by. I’ll take this up again in my next post addressing Fox’s answer to the third question. A more detailed response here would get deeper into the inside baseball political theory disagreements than is necessary, so I’ll limit myself to one clarification and one general observation about the shortcomings of this approach.

A probably unnecessary clarification: in my previous response to Linker I sought to take him to task for conceptualizing the rule of law in a way that appeared to ignored the government/governed relation altogether, and focused entirely on the relationship between the parts of the government. That doesn’t mean I don’t think intra-government relations aren’t important for the rule of law, of course. What I did mean is that I don’t think there’s much value or utility in separating out the two kinds of rule-of-law concerns. The question “what does X mean for the rule of law?” simply can’t be meaningfully answered by bracketing out one half of the equation. The evaluation of X must weigh any rule of law damage to intragovernmental relations (which I don’t grant in this case, but let’s say I did) and weigh it against rule-of-law repair to the government/governed relationship. Neither will ever be perfectly consistent with the rule of law, a goal that will forever remain out of reach (this seems obvious to me, which is one thing that frustrates me about the treatment of the rule of law in much political and legal theory, where it’s treated more like a threshold concept than an aspirational one).

While leads to my more general observation.  I was fortunate to have the opportunity to take a class in graduate school with Joel Migdal, a scholar who influenced me a great deal in how I think, conceptually and analytically, about “the state.” Here’s his not as famous as it should be definition of the state:

The state is a field of power marked by the use and threat of violence and shaped by (1) the image of a coherent, controlling organization in a territory, which is a representation of the people bounded by that territory, and (2) the actual practices of its multiple parts. (from pg. 15-16 of this book).

It is, for my money, a great shortcoming of contemporary political and democratic theory that we discuss the state primarily in terms of (1) at the expense of (2). Some of the most interesting things we might want to say about the state can only come into focus only when we examine (1) and (2) side by side, noting the gaps, tensions, and contradictions between these two faces of the state (my next post will draw on the scholarship of a Migdalian immigration scholar doing exactly that). The state—and its rules, norms, conventions, and practices—only interest us because they interact with society. If we focus on (1) at the expense of (2) we risk becoming dazzled or mesmerized by the image of itself the state is selling, embracing its self-serving ideology uncritically. Another scholar whose work I know Russell finds quite powerful and who helps us keep this danger sharply in mind is James Scott, who does an outstanding job of demonstrating some of the dangers that accompany unofficial ideologies of states (his “seeing like a state” and its high-modernist assumptions about societies and terrain) that only become discernable when we focus on (2) alongside (1). I tried to capture the attitude toward the state I advocated for in this post:

Five hundred-odd years ago, give or take, in Europe, the configuration of social power changed. A kind of entity called the state began to emerge as victorious in struggle for social power. This power grab wasn’t at all noble or particularly justifiable in normative terms, indeed, war making and state building were intimately connected developments. The quasi-monopoly this kind of entity was able to create on the exercise of legitimate violence created extraordinary new opportunities for exploitation but also contributed to an environment that allowed for extended periods of peace and prosperity, at least for certain lucky segments of the population. To state the obvious, the arrival of the state as the dominant form of social and political power was both wonderful and horrible: the state created new opportunities for wealth and security, and perpetrated brutal, oppressive crimes against humanity with staggering efficiency.

In other words, let’s treat states as a historically bounded and contingent form of social power. Let’s avoid, as Jacob Levy puts it, the over-moralization of historical processes that lead us to a teleology of political forms.

This feels a bit vague to me so I’m going to try and sum up my argument with as much clarity as I can muster presently: When evaluating the the legitimacy of state action we ought to attempt to do so, as much as possible, from a position of epistemic and conceptual independence from the state’s legitimating stories.  I think a version of “the rule of law” might be a useful part of that assessment, and living up to their own commitments about how they’re supposed to govern could very well be part of that. But, if we’re starting from such a place of independence we can’t privilege that worry over the worry about the government/governed relation at the level of theory, as doing so concedes far too much ground to the state’s self-serving narratives about legitimacy. In short: I encourage Russell to work on his “anarchist squint.”

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  • joe from Lowell

    I think President Obama did violate procedural norms and precedents, and did so in a way that I would have condemned prior to the last five and a half years of Republican behavior in Congress.

    But for him to have remained bound by such norms when his opposition so gleefully violates them all – one filibuster record being set after another, for example – would have been completely unacceptable.

    • liberal

      Don’t understand how we’re supposed to fight a bunch of near-fascists who break norm after norm and not break some ourselves, certainly ones they’ve already broken.

    • Vance Maverick

      Which ones are you thinking of? Not at all disagreeing, but this discussion gets pretty otiose if the violations aren’t named.

      • joe from Lowell

        I’m thinking mainly of their abuse of the Senate debate rules, but there are plenty of others. The use of a threatened debt default as hostage-taking, for instance.

        • Joe_JP

          I think President Obama did violate procedural norms and precedents

          VM might be wondering about this too.

          • joe from Lowell

            Ah, of course! That makes so much more sense.

            I mean the scope and ambition of this executive order. The comparison is often made to Reagan’s executive order for Nicaraguans, but this isn’t just picking some favored individuals and helping them out. This is the establishment of a policy about undocumented residents generally.

            Immigration law was fundamentally the same after Reagan’s order. It was still what Congress made it; Reagan’s action was like granting a pardon. It didn’t change the murder laws.

            Obama’s order is a much bigger deal. Our immigration system is a different system, doing different things, with the passage of this order. It’s a much more fundamental change in the law.

            • Joe_JP

              Seems somewhat weak tea if this is all that you have especially perusing the conversation over at Balkanization and elsewhere. But, okay.

              • joe from Lowell

                I guess that depends on what I’m trying to “have.”

                I suspect that the concepts “This violates established norms,” “Obama should not have done this,” “It is facially wrong to violate established norms,” and “This is a very large and problematic violation of norms” are getting mixed up.

                I’m not even arguing that his violation of norms is equivalent to those of his opponents.

                • Joe_JP

                  I think President Obama did violate procedural norms and precedents, and did so in a way that I would have condemned prior to the last five and a half years of Republican behavior in Congress.

                  If that is the concern, the executive order seems like a “weak tea” example of it.

                • cpinva

                  “I’m not even arguing that his violation of norms is equivalent to those of his opponents.”

                  after all the back and forth, I’m still quite unclear what “violation of norms” Obama has supposedly committed. my problem centers on this: by definition, executive orders are a slap in the face to the legislative branch because, for the most part, they can be (fairly, I think) construed as lawmaking, a singular power lacking in the executive branch. as such, every executive order is a “violation of norms”, going back to the very first one.

                  what, specifically, about this particular executive order, has your panties in a bunch, vs every other executive order?

                  seriously, I am not being snide here, I just honestly don’t get the difference.

                • Hogan

                  The argument is that, in determining how the executive will enforce a law, it shouldn’t work against the fundamental purposes of the law; and Obama’s EO works against the fundamental purposes of statutory immigration law.

                  I’m not taking a position either way, but that’s the argument.

      • pillsy

        I’m not joe (or from Lowell), but the two that stand out most in my mind are threats to default on US debt by refusing to raise the debt ceiling and the idea that the opposition party can and should filibuster everything, creating a 60 Senate vote requirement for any legislation. In both cases, the violation of the norms in question has, in effect, turned Congressional inaction itself into a weapon.

        I would, in fact, say that Obama’s response, while it may be violating a traditional, informal norm around the limits of executive power is the correct Constitutional response, because it’s the Executive Branch responding to assert its power in a new way in response to Congress doing the same thing. I’m not sure Fox would disagree with me on this point, based on his last paragraph, though it seems to bug him that Obama isn’t saying what he wants about it.

        • Vance Maverick

          Neither you nor jfL is naming a norm violated by Obama. Seriously, I’m sure it’s there, but let’s spell it out.

          • joe from Lowell

            I need to give it a name? My description above isn’t sufficient to understand my point?

          • joe from Lowell

            OK: “Presidents don’t dramatically reorder domestic policy through unilateral action against the wishes of Congress and the public.”

            Ordinarily, changes of this scope in the domestic sphere are done through legislation, or at least with the tacit acquiescence of Congress. I can’t think of anything domestic that Bush, Clinton, Bush, Reagan, Carter, or Ford did that even comes close to the significance of this order. Perhaps some of the Obama EPA rules do, but those were all taken in accordance with powers explicitly granted to the EPA by Congress.

            • Bufflars

              Not sure if this is really “against the wishes of Congress and the public”. The American public is overwhelmingly in favor of immigration reform, and only slightly against this specific action because it has been demagogued so heavily. Secondly, it’s not really against Congress either. The Senate has passed a much broader bill already. The house would pass it to if it were allowed to come to vote.

              • pillsy

                Sure, but all of that happened before the recent shellacking the Democratic Party took in the midterms, and the bill was passed by a now lame duck Senate; I doubt the chances will be as good in the next. Yeah, these are sort of vague and technically arguable points, which is what you’d expect when you’re fighting over informal norms instead of the letter of the law.

                • Joe_JP

                  recent shellacking the Democratic Party took in the midterms

                  Your last point is true here — the “shellacking” here is that the Dems lost somewhat more than you might expect in red state Senate elections for which immigration often to my knowledge wasn’t a big issue. This is not, e.g., an executive order involving ACA. This was not 2010 on that front even. And, meanwhile, Dems even won a few state elections on things like the minimum wage or against personhood. What this tells us about the immigration issue is unclear.

            • cpinva

              again, by definition, executive orders are “violations of the norm”, what’s so special about this particular executive order, that raises it, in orders of magnitude, above all the other executive orders?

              “I’m not joe (or from Lowell), but the two that stand out most in my mind are threats to default on US debt by refusing to raise the debt ceiling and the idea that the opposition party can and should filibuster everything, creating a 60 Senate vote requirement for any legislation. In both cases, the violation of the norms in question has, in effect, turned Congressional inaction itself into a weapon.”

              phillsy, the problem with both of these actions is that they are entirely within the purview of congress, per the constitution itself. sleazy and dangerous yes, by no stretch of anyone’s imagination do they come anywhere even close to “violations of the norm”. the constitution explicity gives congress:

              1. the power of the purse strings, which includes the national debt., and

              2. the power to make its own rules of operation, which not even the supreme court has ever been tempted to futz with.

              we may not like what they do, but they’re perfectly within their rights to do so, even if it looks insane.

        • Manju

          the idea that the opposition party can and should filibuster everything

          If only they had the decency to respect tradition by limiting the filibuster to civil rights.

          • postmodulator

            Come on. You want to say it. It’s killing you not to say it. Just say it.

            • Manju

              Nah, I only say it when commentors say otherwise.

              • postmodulator

                Robert Byrd was the greatest hero this country has ever known.

                (Don’t say I never did anything for you.)

                • Manju

                  I will not stand idly by as you badmouth the Philly cheesesteak.

        • Russell Arben Fox

          I would, in fact, say that Obama’s response, while it may be violating a traditional, informal norm around the limits of executive power is the correct Constitutional response, because it’s the Executive Branch responding to assert its power in a new way in response to Congress doing the same thing. I’m not sure Fox would disagree with me on this point, based on his last paragraph, though it seems to bug him that Obama isn’t saying what he wants about it.

          This is well said, and I fully agree with you, Pillsy. Though to provide just a tad more context, what you see as me being “bugged” by all this is, at bottom, a theoretically grounded distinction, which I attempted to articulate my post and also in the comments down below in light of David’s challenge in this post. I would insist that there really isn’t any historical or theoretical basis for this thing we call “constitutional government” that isn’t essentially wrapped up with how high officials practice and perform their legal powers. Which means, in short, that of course power grabs like this, taken at this time and in this way, must properly be understood as “unconstitutional,” no matter how legally or politically defensible they may be. To those who insist that it is both philosophically or strategically right or necessary to defend Obama against the violation-of-constitutional-norms change, well, I can only say: “So much the worse for constitutionalism.”

        • Manju

          threats to default on US debt by refusing to raise the debt ceiling

          In this case, I think Obama could’ve gotten away with, indeed benefited from, “unconstitutional” actions…had it come to that.

          The US is on the brink of default, so Obama exercises his power of commander in chief to raise it by executive fiat…declaring martial law for 5 minutes as he does so

          The public realizes that he just saved the Republic. It may have been extra-legal but the constitution is not a suicide pact. If Scotus disagrees then he pulls an Andrew Jackson.

          All these actions are dangerous precedents no doubt, and thus Obama was right to say he wouldn’t do them (this puts more pressure on congress and he could always flip-flop if need be) but they are less dangerous than the alternative.

          • pillsy

            All these actions are dangerous precedents no doubt, and thus Obama was right to say he wouldn’t do them (this puts more pressure on congress and he could always flip-flop if need be) but they are less dangerous than the alternative.

            From a practical standpoint, that Obama threatening a Constitutional crisis over the payment of the debt would have (I think) been really destructive to perceptions of the US’ credit-worthiness. The stakes here are much lower–what, people might get the idea that our immigration policies are a dysfunctional, unenforceable mess?

            That makes me think it’s much safer ground for having the fight, not just for the President and the Democratic Party, but also for the country as a whole.

          • matt w

            The public realizes that he just saved the Republic

            This is rather optimistic. A substantial portion, if not a majority, of the public thought raising the debt ceiling was a bad thing (because of a concerted campaign to obscure what it really meant). If Obama had actually declared martial law to raise it the Republicans would’ve had his head on a pike. Even the less disruptive strategy of declaring that the debt ceiling violated the 14th Amendment (possibly twisting the arm of someone in OLC to support it) would’ve been fraught.

            • Manju

              Well, one wonders why they didn’t just default then.

    • djw

      I don’t really agree that he did–I would have welcomed this EO without hesitation at any point in his presidency–but that’s for the next post. But there’s a peculiar kind of Kantianism to RAF’s position here; the rightness of the old constitutional norms should be honored by Obama acting as if he lived in a world where those norms were still in operation. It’s particularly odd, given that he’s not actually a big fan of the American constitutional order to begin with.

      • Joe_JP

        I do wonder what specifically Obama violated here too. It’s sort of like Glenn Greenwald etc. being upset Obama or Democrats being hypocritical when opposition to Bush was based on a variety of things, only a minority full civil libertarian.

        Also, isn’t part of “old constitutional norms” a scheme of responding to violations of them? Something like an assumption of “clean hands” or something? Unilateral disarmament seems both inequitable and not compelled by them.

        • djw

          He answers that in the post; it’s the question #3 I’ll take up in a later post.

          • Joe_JP

            ah.

  • liberal

    …the image of a coherent, controlling organization in a territory…

    Something I don’t understand is this movement to declare a Palestinian state without an accompanying claim as to what land that state is sovereign over. (I’m supportive of the movement, just think they should declare the geographical ambit of sovereignty too.)

    • Lurker

      Ultimately, that question is practical:
      a) does the state act as a sovereign in some place?
      b) are there no competing sources of sovereignity there that would have practical effect?

      Any claim of sovereignity that is not backed by action is just bad fiction.

  • Incontinentia Buttocks

    Given that we have a written Constitution as the highest law of the land, a constantly evolving set of political norms, and a human nature that tends to lead people to grab as much power for themselves and their team as is possible, any reliance on procedural norms and precedents seems foolish at best, even if we could agree on what those norms are. I don’t begrudge the GOP their use of Senate rules. I blame the Senate rules. And when, in the future, the Republicans manage to get blue states that they control, like Michigan, to distribute their electoral votes by congressional district, I won’t blame them either. As someone said a few days ago, the Electoral College is a weapon lying around waiting for someone to fire. To expect nobody to do so because they haven’t already is foolish. The only answer is to eliminate the weapon.

    • Joe_JP

      any reliance on procedural norms and precedents seems foolish at best

      I’m with another comment in a past thread that suggested at least SOME reliance is realistically necessary in the real world. Not being ‘shocked’ when Republicans abuse the power they are given etc. is fine. But, there is some right to be upset when they cross a certain line in part normatively.

      • McAllen

        I think this is right. Even if we’re not shocked it’s worth pointing out that they’re subverting democracy, and I wouldn’t want Democrats to do this if they were in a similar position.

        • Incontinentia Buttocks

          I certainly don’t mean to suggest that we shouldn’t argue against their doing these things. But there’s nothing very democratic about the U.S. Senate (either in its basic set-up or in the rules it has adopted) or about the Electoral College. Indeed, both are alternatives to more democratic systems of government. While we might all prefer to live in a world in which both parties act so as to approximate democracy despite rules that are designed to subvert it, we don’t live in that world. And, given the world we do live in, I’d rather have Democrats play the angles, too….so long as there are angles to be played and the Republicans are playing them. Ultimately, however, we need to (at the very least) reform the Senate rules and abolish the Electoral College so as to make our undemocratic system democratic.

          • Incontinentia Buttocks

            I meant to add: even if you don’t want Democrats to take advanatage of rules the way the Republicans do, the fact that Republicans do is evidence enough that we cannot rely on procedural norms and precedents (which is where this subthread began).

            Whether it makes any sense to act as if we can rely on them even if we can’t is a slightly different question, about which McAllen and I seem to disagree.

            Or to put this last point another way: norms and precedents are what they are, not what we wish them to be. There is now not only precedent for automatically filibustering every single piece of legislation that comes before the Senate, it is, in fact, the new norm.

  • Lee Rudolph

    Seeing both of these up there:

    (2) the actual practices of its multiple parts [Migdal]

    Let’s avoid, as Jacob Levy puts it, the over-moralization of historical processes that lead us to a teleology of political forms

    prompts me to ask if any political theorist (that you know) has ever taken Jakob von Uexküll’s Staatsbiologie (1920) seriously? Because von Uexküll does make an effort (in a way that I find fairly incomprehensible, and not only because my German is very poor) to square the Migdal requirement with the negation of the Levy requirement—he wants to study the “functional circles” (Funktionskreisen) of the State in terms of actual practices (as it were, ethologically), while still insisting on their telos.

    Such a reconciliation is entirely analogous to what he tries to accomplish in his “Theoretical Biology” of (actual) organisms, with his take on “Umwelt” and so on. It is also deeply flawed, at least by association, quite aside from its internal logic (or lack of it): the second edition of Staatsbiologie was published by the Hanseatic League in 1933; R. W. Burckhardt, in his book Patterns of behavior: Konrad Lorenz, Niko Tinbergen, and the founding of ethology, points out that the conclusion of the book is “the hopeful observation that Adolph Hitler’s rise to power was bringing an end to the forms of pathological decay Germany had been displaying for years”; and according to some guy named Stjernfelt, the revised (1928) edition of Theoreticsche Biologie (which I have been unable to compare to the 1920 original or its 1926 English translation) is “no less than a fascist biologist doctrine of state” (which the first edition, judging from its translation and picking away at the German original, is not). So I’d be interested to know if anyone (other than a historian of ethology and a “diagrammatologist”/semioticist) has studied it deeply.

    • Hogan

      the second edition of Staatsbiologie was published by the Hanseatic League in 1933

      The what league?

      • Hogan

        Ah–Hanseatische Verlagsanstalt (publishing firm). Looks like the Regnery Books of the Third Reich.

    • djw

      Not to my knowledge; I’ve certainly never heard of it. Sounds intriguing, despite also sounding brutally and oppressively German.

  • Russell Arben Fox

    Thanks for the thoughtful response, David. One of the things which is good about exchanges like this is that they help me continually clarify what it is I’m thinking–and given that I am appearing to you to be lacking in an “anarchist squint” (which is likely true, but not for a lack of trying on my part), as well as exhibiting a kind of Kantian formalist respect for the Constitution (which I really didn’t intend!), I obviously need to communicate better. Let me see if I can make one (admittedly rather contorted) observation here, and maybe you can adumbrate any additional miscommunications in your next post:

    Is explaining why I think something (like Obama’s immigration order) which I acknowledge to be legal in a technical, statutory sense is, nonetheless, also unconstitutional necessarily a “focus on [the image of a coherent, controlling organization] at the expense of [the actual practices of [that organization’s] multiple parts]”? Does pointing out a valid (I think, anyway) theoretical interpretation of what it can genuinely mean to regard government through the lens of “constitutionality” (which is what this whole argument is about, correct?) necessarily “risk becoming dazzled or mesmerized by the image of itself [which] the state is selling”? Even though that obviously runs counter to the whole democratic thrust of those scholars’ work (and, for that matter, to my post’s very critical-of-constitutionalism title)? If so, then I can only conclude that 1) I think you’re wrong, and 2) we have nowhere to go but “deeper into [our] inside baseball political theory disagreements,” because you’re apparently seeing the participatory, populist democratic arguments which I find so appealing as–perhaps because they do not automatically track with progressive political goals?–actually not helping us see what gets in the way of conceiving of power in the hands of the people, but rather as engaging in a kind of reification of practices and performances that ought, perhaps, be actually streamlined into tools of policy-making.

    To make my point as simply as I can: I think we ought to aspire to allow law to function in its full Waldronian and democratic sense; I think getting hung up on defending the constitutionality of actions which clearly–in light of practice-and-performance-minded Wolinian analysis, anyway–are not isn’t serving to get us moving in a Waldronian (much less just generally democratic) direction at all; I think you disagree because you don’t see any reason to separate real democratic self-governance from progressive and administrative steps towards various policy goals, and therefore talking about “unconstitutionality,” even as part of an effort to demonstrate how such conversations are (I think, and Wolin thinks) self-trapping, accidentally becomes a kind of anti-anarchist, Kantian reification of the state. Does that make sense? Not that it will change anyone’s minds, but as I said at the beginning, clarity is a good thing.

    • djw

      Yes, we’re clearly still not quite understanding each other (while your answer to part 3 was clarifying to me, I’m not sure your answer to 1/2 was.) This is definitely not as clear as I’d like it to be.

      To make my point as simply as I can: I think we ought to aspire to allow law to function in its full Waldronian and democratic sense; I think getting hung up on defending the constitutionality of actions which clearly–in light of practice-and-performance-minded Wolinian analysis, anyway–are not isn’t serving to get us moving in a Waldronian (much less just generally democratic) direction at all; I think you disagree because you don’t see any reason to separate real democratic self-governance from progressive and administrative steps towards various policy goals, and therefore talking about “unconstitutionality,” even as part of an effort to demonstrate how such conversations are (I think, and Wolin thinks) self-trapping, accidentally becomes a kind of anti-anarchist, Kantian reification of the state. Does that make sense? Not that it will change anyone’s minds, but as I said at the beginning, clarity is a good thing.

      I’ll clarify this a bit more in the next section but I think Waldron’s valorization (I’m comfortable calling it romanticization) of legislation as a uniquely democratic part/moment of government is an example of what I want to criticize w/ Migdal. It’s a deeply cherished liberal myth with us since at least Locke, and like many myths it contains some useful truths, but Waldron allows it to shape his range of vision far too much. I also think immigration politics absolutely isn’t “just another progressive policy goal” because of its relevance to the crucially important but official ignored by the state’s self-image “boundary problem” for democratic legitimacy.

      I also think you’re wrong to use the results of the election to paint the content of Obama’s EO as anti-populist or anti-democratic; elections convey information weakly and in lots of different ways and you’re privileging a particular narrative about the information conveyed; more on that in my next post.

      • Russell Arben Fox

        I also think you’re wrong to use the results of the election to paint the content of Obama’s EO as anti-populist or anti-democratic; elections convey information weakly and in lots of different ways and you’re privileging a particular narrative about the information conveyed

        But David, I’m not “privileging a particular narrative”; as best I can understand our system of government, the whole damn logic of constitutionalism privileges that narrative, because the U.S Constitution’s give us elections, elections are assumed to equate the legitimate rule of law, QED. Of course that’s simplistic and overly-protective and crazy, but I don’t see any other reasonable way to explain–other than a reductive accusation of partisanship, which obviously always cuts both ways–why obviously non-idiotic people are screeching about an executive order that has genuine statutory grounds.

        Look at it this way: I wasn’t reading LGM or you closely back during those bad early days of the Iraq war and the “War on Terror,” so I don’t know if this accusation includes you, but I know it certainly includes me: like tens of thousands of liberals and others on the left, one of our loudest complaints about Bush’s terrible executive orders (suspension of habeas corpus, indefinite detention, etc., not to mention the invasion itself) was that this was all being pushed by a man who wasn’t property elected. He wasn’t legitimate! He received fewer votes than Gore! Florida was rigged! Selected, not elected! In other words, a huge amount of our constitutional invective was tied up in the way Bush’s very presidency seemed to mock norms, procedures, and the democratic bottom-line. This, of course, in the wake of an election that anyone could see was just a plain clusterfuck from beginning to end. But that didn’t matter: there was a way things were supposed to work, after all. Despite all the obvious partisan interest motivating the opposition to this order of Obama’s, is it really implausible that the way we take up and define “constitutionalism” is part of what is forcing this issue as well?

        • djw

          like tens of thousands of liberals and others on the left, one of our loudest complaints about Bush’s terrible executive orders (suspension of habeas corpus, indefinite detention, etc., not to mention the invasion itself) was that this was all being pushed by a man who wasn’t property elected. He wasn’t legitimate! He received fewer votes than Gore! Florida was rigged! Selected, not elected!

          Hmm. I wouldn’t be surprised if you could dig up something along those lines from me. But for me, the point was to keep alive–and not let history bury–the profound injustice of 2000, or perhaps engaging in strategic rhetoric. I also probably criticized those things as actual violations of substantive constitutional (and, more importantly, rule-of-law) principles. But I don’t share your constitutional assumption about the narrowness of an electoral victory playing a role in the degree to which politicians are ‘constitutionally’ authorized to pursue their agenda. But I would neither want nor expect a hypothetical president Kerry who picked up an extra just-barely-enough votes in Ohio to not pursue his agenda vigorously and to the best of his ability, with an eye toward crafting a record of accomplishment that might earn him enough votes to win re-election. I expect elected officials to govern with a closer eye on future elections than past ones, and I don’t think that orientation is substantively undemocratic.

          It seems worth noting that a rather weird/unusual/unique thing about our constitution is that it turns over government in pieces rather than all at once, which suggests rather strongly it’s structured to minimize political reaction to whatever the voters happen to seem to want at the moment (and, of course, the randomness of which Senate seats are up and competitive has the capacity to distort the message of a midterm election relative to the political will of the country as a whole). You and I (I think?) both find that to be a frustratingly conservative/undemocratic feature of our constitutional order but it does appear to be an pretty non-trivial feature of it nonetheless.

          • Russell Arben Fox

            I expect elected officials to govern with a closer eye on future elections than past ones, and I don’t think that orientation is substantively undemocratic.

            Again, I agree–and what that agreement voices is our shared belief in using democratic tools to achieve democratic and egalitarian ends. And all I’ve been saying all along (I suppose rather verbosely and poorly too) is that that belief is, I believe, not coherently contained within the edifice called “constitutionalism,” in which the elected official’s recent performance of the relevant norms is profoundly bound up with what will be accepted as legitimate as she or he goes forward. To say otherwise is to, by my way of thinking, two things: 1) implicitly endorse exactly the sort of more popular or proportional scheme of democratic representation which, by fits and starts, reformers have been trying to inch our constitutional system towards for 150 years now, and 2) blinker oneself to the structural logic which, even against our better judgement, burbles up in our language of governmental legitimacy again and again and again.

            It seems worth noting that a rather weird/unusual/unique thing about our constitution is that it turns over government in pieces rather than all at once, which suggests rather strongly it’s structured to minimize political reaction to whatever the voters happen to seem to want at the moment….You and I (I think?) both find that to be a frustratingly conservative/undemocratic feature of our constitutional order but it does appear to be an pretty non-trivial feature of it nonetheless.

            Again, I agree, but I would add two final points (I doubt this conversation is going to be continued much over the holiday anyway): 1) conservative does not necessarily equal “undemocratic,” I think, and thus figuring out how to improve our system isn’t as straightforward as, say, abolishing the Senate; 2) while it is certainly “non-trivial,” I also doubt it is wholly culpable for the dynamic I’ve been trying (perhaps ineffectively) to present. As Wolin, among others, I think strongly demonstrates, the rights-protecting logic of a democracy-limiting constitutional regime really is the dominant one in almost any discussion of constitutions in the the modern liberal world, so suggesting that I and others end up struggling a great deal with procedures and norms simply because of one particular structural annoyance with our system misses the larger (and I think quite important) role that constitutional performance inevitably plays.

  • Mart

    From a latino immigrant perspective, the past six years Obama was the Deporter in Chief, tearing up the community. The deportations were to win over Republican votes for a comprehensive imigration bill. (Sucker.) Now, from the immigrant perspective, he is giving a sub-set of them a temporary repreive from deportation, while they concentrate on deporting bad actors. BFD. And the right shrieks endlessly about his granting “Amnesty” – if only.

  • Barry_D

    Russell, if you want norms to be respected, then rein in the right.

    • Origami Isopod

      THIS. So damn much.

    • Russell Arben Fox

      As someone who spent months sending money to and walking streets for Democratic candidates here in Kansas, all to no avail, all I can say is: I’m trying, Barry, I’m trying.

  • Murc

    Maybe I’m just dumb, but I don’t think I understand how anyone can take the stance that something is legal and unconstitutional. That’s a literal impossibility. Laws and actions have to be constitutional before they are legal; things that are unconstitutional can’t be legal.

    It is of course possible to argue that something that is regarded formally as constitutional shouldn’t be, and that something that is regarded as formally legal is in fact illegal because it is unconstitutional. But I don’t see how you can take the standpoint that something is legal AND unconstitutional at the same time. It’s like having a square circle or a four-sided triangle.

    • djw

      You do come across as a bit of a formalist thinker sometimes, but if you relax your priors just a little bit it shouldn’t be that hard to grasp:

      1) Constitutionalism is made of laws and norms, and they’re not identical
      2) Legality is determined by the law alone

      To take what I think would be a fairly uncontroversial example, here’s a constitutional norm: “the supreme court shouldn’t overturn law without saying what part of the constitution the law violated.”

      This isn’t actually a law, which is why John Roberts and co. weren’t arrested after Shelby County. But it did violate a constitutional principle, I think, pretty clearly, but did not act illegally.

      • Murc

        You do come across as a bit of a formalist thinker sometimes

        Guilty, at least when it comes to the government. I didn’t used to be. The Bush years radicalized me in this regard.

        2) Legality is determined by the law alone

        Er, no. As I understand things, laws need to be constitutional in order to be legal. That’s an actual, real hurdle they need to leap before their validity is determined.

        To take what I think would be a fairly uncontroversial example, here’s a constitutional norm: “the supreme court shouldn’t overturn law without saying what part of the constitution the law violated.”

        This isn’t actually a law, which is why John Roberts and co. weren’t arrested after Shelby County. But it did violate a constitutional principle, I think, pretty clearly, but did not act illegally.

        I’m… not sure how that proves your point? John Roberts didn’t do anything unconstitutional, so I’m not sure how they did something both unconstitutional and legal.

        It did violate an important principle of judicial review, but it was just that; a principle. Lawmakers do vile, unprincipled things every day, and it doesn’t make those things unconstitutional.

        I am uncomfortable with the leap from “this violates governing norms” to “this is actually unconstitutional.” Something being unconstitutional has both a very specific legal meaning and certain societal connotations. Saying “the President is pushing the limits of his authority and violating long-established norms,” while strong language, is a fairly anodyne statement that’s been said of every President by their political enemies, I think. “The President is knowingly doing something unconstitutional” is different; that’s an accusation that, if the person speaking it really believes it, means we’re living in an illegitimate regime that needs to be torn down.

        • djw

          It did violate an important principle of judicial review, but it was just that; a principle. Lawmakers do vile, unprincipled things every day, and it doesn’t make those things unconstitutional.

          But I didn’t raise that example because it was vile and unprincipled, I raised it because it violated, as you say, a core principle of the power of judicial review–a power which we understand to be a constitutional one.

          How would you square your hyperlegalist view of constitutions with widely held belief that there’s such a thing as “the British/UK Constitution”?

          • Murc

            But I didn’t raise that example because it was vile and unprincipled, I raised it because it violated, as you say, a core principle of the power of judicial review–a power which we understand to be a constitutional one.

            … yes? Go on?

            Everything you said in that sentence is absolutely true, but I legitimately do not see your point in saying it. It seems like there ought to be some explication there.

            How would you square your hyperlegalist view of constitutions with widely held belief that there’s such a thing as “the British/UK Constitution”?

            I’ve never heard anyone refer to the UK having a constitution, no modifier, full stop.

            I have heard many, many people say that they have an unwritten Constitution (always that specific modifier), which to my mind has always meant “we don’t have stuff written down all in one place that we’ve declared to be double-ultra-special like you guys do; what we have is a cobbled-together set of laws and procedures we look to for guidance in times of uncertainty, the same way you Yanks look to the courts or your actually written-down constitution.”

            It us also my understanding that, legally speaking, the UK still operates under legislative supremacy. There are things here in the US that the Congress cannot do, because the courts will say “mmm, no” but as I understand things (and I know significantly less about UK law than I do American) but the British Parliament, assuming it either follows or changes certain procedures, can do damn near anything. It could abolish the monarchy. It could re-institute the House of Lords as a meaningful political body. And none of this would be in violation of their unwritten constitution, because said constitution isn’t written down so from a standpoint of “effective legal barrier” it doesn’t exist.

            • Vance Maverick

              On the narrow point of the British constitution always being called unwritten, you’re wrong. I find that the LRB has reviewed two books with the title The British Constitution. Here’s David Runciman:

              Not everything is written down – there are no statutes determining the role of the prime minister or fixing the responsibilities of cabinet government – but then again, no constitution has everything written down. The American constitution, which is often held up as a model of all-seeing sufficiency, leaves a great deal out, including the rules governing the country’s electoral system: the principle of first past the post is an integral feature of the constitutional order, but nowhere is this actually specified.

            • Lurker

              Yes, and technically, the president could pack the US Supreme Court, or the Congress might decide to establish two more Supreme Courts while embedding that as a rider into defence authorisation bill. These actions would be considered unconstitutional in the extreme, although they are clearly within the letter of the Constitution.

              The US Constitution is, from European standpoint, only little more written than the British one. Many of the most important provisions are really statutory or caselaw, not constitutional text. Marbury v. Madison brought into the Constitution the principle of judicial review that was not part of the original scheme. Slaughterhouse cases gutted the 14th Amendment into something not envisioned by its drafters. Posse Comitatus Act is widely considered to be constitutional law, although it is just an ordinary statutory law.

              It would be, for example, within Congressional powers to impeach any Justice or Judge who engages in judicial review, thus invalidating Marbury. No one probably thinks that such action would be constitutional, although it is clearly allowed by the written Constitution.

      • Joe_JP

        without saying what part of the constitution the law violated

        The opinion argued that the policy here went beyond enumerated powers and clashed with constitutional structure (reasoned from various things; cf. how a “right to privacy” is determined in Griswold) as to state powers. Current state practice was not bad enough to make it “appropriate” including under the 15A to do this.

        The dissent makes a good refutation of this on the merits, but it is not as if the majority did not even explain itself.

        • Hogan

          Current state practice was not bad enough to make it “appropriate” including under the 15A to do this.

          Another constitutional norm is that one branch doesn’t override another on a factual or policy question that the other branch is in a better position to answer. Congress can do, and does, the necessary investigative work to determine who should and shouldn’t be on the pre-clearance list. The Supreme Court can’t. If you’re going to hand down a decision like Shelby, you’re supposed to have a better reason than “you’re not doing it the way I would do it.”

  • elm

    I assign the theory chapter of Migdal’s Strong Societies and Weak States in my grad IR prosem when teaching “What is the state?” I haven’t read the book you cite, but it sounds like it would be better suited to the task of showing how the state and society interact with each other without assuming state domination of society in Hobbes and even Tilly and Spruyt. Is it worth it to incest my time in reading the book to make this decision, or is the theoretical ground covered actually similar to Strong Societies?

    • Lee Rudolph

      is it worth it to incest my time

      Depends on whether it’s consensual.

      • elm

        There’s a typo I regret somewhat more than my Hodor for honor replacement in a prior thread…

    • djw

      Yeah, I think it’s probably worth picking up for you. It’s not a radically different theory, but In Strong States and Weak Societies, which is a fantastic book, you can tell he’s working out his state-society theory inductively through the cases. He gives a clearer, sharper, and more developed account of the theory in S-in-S. It’s much less of a monograph (most chapters were previously published, although some in some hard to find places) and more a working through of the theoretical implications of his, and some of his colleagues and students, empirical work.

  • MPAVictoria

    The important thing to remember is that NO ONE GIVES A FUCK ABOUT PROCEDURAL/LEGAL ARGUMENTS. People want to see their own policy preferences implemented and will grasp at the tiniest sliver of a justification.

    • djw

      Most of the population, sure. Maybe that describes me, maybe that’s what I’m doing here. But not literally everyone; Russell is on record as very much approves of the policy enacted by the EO and I have no reason to doubt him.

      • Murc

        This.

        I care very much about substantive procedural arguments. I’d come out against universal health care or the establishment of a guaranteed basic income if getting there involved smashing through the edifice of the law.

        • MPAVictoria

          “I care very much about substantive procedural arguments. I’d come out against universal health care or the establishment of a guaranteed basic income if getting there involved smashing through the edifice of the law”

          You say you would but you really wouldn’t. You may bitch about it on the internet but would you change your vote over it?

          • Origami Isopod

            I can’t speak for Murc, but I wouldn’t change my vote. The saving of numerous vulnerable lives, to me, is a greater moral imperative than preserving the edifice of law in a country where the most powerful have vitiated it already.

            • MPAVictoria

              Bingo. And you can be damn sure that they could give a crap about the “law” on the other side.

              • Murc

                I have never taken “the Republicans do it” as a serious argument in isolation.

                The Republicans are morally bankrupt criminals. Them doing something is a great reason for me to NOT.

                It’s not always true. Sometimes the Republicans stumble onto something I think Democrats would do well to emulate, like not being cowards about their beliefs. But if I actually agreed with what they were doing, I would be one. I don’t. they’re my political enemies. Why would I want to be more like them?

                • MPAVictoria

                  “I have never taken “the Republicans do it” as a serious argument in isolation.”

                  If they ignore norms and procedural arguments and we don’t we will lose. So I have decided I don’t care about procedural arguments. I care about winning.

                • Murc

                  Your previous comments imply you think not only norms and nonbinding procedures should be ignored, but also laws.

                  That’s something I can’t really get behind; breaking the law as an agent of the state requires truly extreme circumstances for me to view it as anything but a betrayal of duty. (I have a much lower threshold for ordinary citizens.)

                  Also too, if it’s impossible to have norms and procedures that function effectively, we’re basically doomed as a country anyway. I don’t like that option, so I choose to believe in effective ones because in the alternative I need to build a cabin and stock up on canned goods.

          • Murc

            You may bitch about it on the internet but would you change your vote over it?

            If there were a better alternative? You bet your ass I would. If I were a theoretical member of Congress, then too, although I have a hard time conceiving of any situation in which Congress is voting on something that would both enact policy I wanted but be somehow illegitimate.

            • MPAVictoria

              “If there were a better alternative?”

              But there isn’t and there won’t be. So in the end you do not really care about procedural arguments. You just think you do.

              /Not trying to offend you Murc.

              • Murc

                Then maybe you shouldn’t tell me what I think. The fact that a situation is unlikely to arise doesn’t mean that a moral code I’ve assembled to deal with it is somehow illegitimate. I’m unlikely to ever end up in a Watchman-esque showdown with a genocidal madman either, but if it happened I’m prepared.

                • MPAVictoria

                  Fair enough. I retracted what I said and offer this in its place:

                  “Almost nobody gives a fuck about procedural arguments and those that do, shouldn’t.”

                  I am not willing to stand by and lose while the right destroys the tiny amount of civilization we have manged to build since WW2 and you shouldn’t be either.

                • Murc

                  Given the choice between losing and betraying principles I think are necessary for a functioning free society, I choose losing. Well, really, in that situation I’m having losing thrust upon me, so I pick the one that’s least objectionable.

      • MPAVictoria

        djw if you are not willing to lose than you do not really care about procedural arguments. If there was some action Obama could take that would give the US universal health care but perhaps be “illegitimate” on procedural grounds I for one would say full steam ahead!

    • Origami Isopod

      +1

    • Vance Maverick

      The procedural argument is mostly offered in bad faith. Knowing whether it’s valid or not actually helps deal with the bad-faith offers.

      • MPAVictoria

        The procedural argument is mostly entirely offered in bad faith. No one cares and the law can be interpreted in pretty much anyway you want to justify what you wanted to do anyways.

        • Origami Isopod

          This. Consider Scalia, if you haven’t just eaten or are about to eat.

        • Joe_JP

          This sounds so very truth-telly and all, but it’s actually not really true. People care, e.g., that in our system laws are passed in a certain way. Yes, many who liked the policy aspects of it would not just be fine if the president by fiat made a great health law and put it in place, denying judicial review like a benign dictator since “Scalia” is a troll and is acting in bad faith anyway. At least, those who care about republican democracy and all. Finally, law cannot reasonably be interpreted in any way imaginable. Again, if reason is not your thing maybe this won’t matter to you.

          • MPAVictoria

            “People care”
            No they mostly don’t. If they did Gore vs Bush would have led to a revolution.

            “many who liked the policy aspects of it would not just be fine if the president by fiat made a great health law and put it in place, denying judicial review like a benign dictator since “Scalia” is a troll and is acting in bad faith anyway”
            Almost no one. People will support their policy preferences and search for justifications for them.

            “At least, those who care about republican democracy and all”
            Which is almost no one. People care about imposing their policy preferences not about procedural issues which are almost always debatable.

            “Finally, law cannot reasonably be interpreted in any way imaginable”
            Please. Look at the history of the SSC. Judges rule based entirely on their policy preferences and find or makeup the legal justification afterward.

            • Murc

              So basically, you don’t care about due process or representative democracy at all, and think that most of your fellow citizens either share your disdain, or are fools for not doing so.

              Good to know. I don’t meet unreconstructed authoritarian leftists a lot. You’re a dying breed.

  • MPAVictoria

    Matt Bruenig (who I highly recommend) writes on this issue very well:

    http://mattbruenig.com/2014/11/22/deeply-serious-procedural-justice-question/

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