Debunking A Few Arguments

I like to think of our audience as a cut above. Indeed, it makes me happy that you all like to understand what is really going on rather than just running with the mob. So in light of that, let me offer a few more tidbits to add to your knowledge of politics and government. In particular, let me debunk a couple arguments you see used a lot these days. Before we begin, however, let me point out that this is not a defense of the Rubio bill, though I will discuss that because that is the context in which these arguments are arising at the moment. My point is to help you understand why some common arguments made against many bills are nonsense.

● “It’s a 1,000 pages long!”: You hear this a lot these days. It first gained prominence with Obamacare and now it’s being used with the Rubio bill: “It’s a 1,000 pages long!” and “Why do they need a bill that long?!” Arg.

Bills are long because they need to be to get the job done because everything Congress doesn’t explain in the bill is left up to the President to decide. Take the Rubio bill. We could whack off large parts of it by just writing, "Secure the border." But does that mean anything? No. That doesn’t tell the executive which border, how to do it, or what we mean by secure -- and don’t think this is just "lawyer games" with me trying to find ambiguity in things "common sense should tell us everybody knows."

Seriously, you tell me: what does "secure" mean? Does it mean no one can cross without permission? Does it mean anyone who does cross will be rounded up? Within how many days? What do we do with them when we catch them? Lock them up or send them home? How? Where do you send them if you don't know where they came from? What agency will do all of this? What money will they have to do it? What happens if you grab an American by mistake? Do the people you grab have a right of appeal? Under what legal standard? Where do they appeal or can they just pick a court? Do they need to be convicted before we send them home? That's a lot of questions. At least we know what "the border" means though, right? Or do we. Does the border include Canada? What about US military bases overseas? What about foreign embassies here? Do we make exceptions for defectors? What is a defector? What about those who are already beyond the border when they go illegal -- like those who overstay a visa -- how do they fit into the idea of "the border"? Now that we mention it, what does overstay mean exactly? And how do we know they've overstayed? Is there a system somewhere? Who runs it? Who follows up to make sure people are gone?

Every one of those questions requires that written direction be added to the bill. If you don't do that, you run the risk that the courts will invalidate the law for not giving the executive adequate guidance on how to implement the law -- this is because the executive implements the law, but cannot make the law. If too much is left to the executive, then courts will strike it down as allowing the president to make the law. Moreover, even if it isn't struck down, do you really want Obama answering all those questions himself? Do you see now why these things are as long as they are? Claiming that the law should be short and easy makes for a great soundbite appeal to "common sense," but is really only evidence that the person doesn't understand how government (AND THE CONSTITUTION) works.

Also, as an aside, these bills aren't nearly as long as you are told. When Congress puts out a bill, it uses 25 lines per page and heavy indenting. The result is that you get a little over 100 words per page on average, as compared to 250 words per page on a word processor or in a Harry Potter novel. So that 1,000 pages is really only 400, and much of it is repetitive. What matters is not the word count, but what the words say, and people trying to scare you with the page count are basically conceding they don't know how to scare you with the substance of the bill.

● “It’s Incomprehensible!”: When you read a law, a lot of it will look like gibberish to the untrained eye, but it's not. The US Code is a lot like a computer program. When you add a new law, you typically make minor tweaks to other existing laws and you often define the terms in your new law by referencing existing laws because all of the nation's laws need to harmonize. If each law stood alone within the code, the already-enormous code would be many times larger and full of fluff, and the chance of a contradiction would rise significantly. Referencing existing laws reduces those problems. That's why laws often look like logic puzzles. But these things are easy to understand if you take the time to look up the references to other laws. Unfortunately, the people making this claim are more interested in feigning ignorance than making legitimate arguments -- like Eric Cantor who criticized the Rubio bill and then said this weekend that he hadn't read it because "It's a 1,000 pages long!!" That statement tells us exactly what we need to know about Cantor.

● “It’s Got Waivers!”: One of the early criticisms of the Rubio bill (and Obamacare) was that it included a lot of waivers and exemptions. The critics latched onto this as proof that the whole thing was a shell game. That's not true, however. In fact, despite initially screaming about 400+ waivers, the critics ultimately were only able to point to one that raised some concern. But why have waivers at all? Three reasons:

1. When a law allows no exceptions, the courts will often find it unconstitutional because it denies those targeted by the law due process under the 5th and 14th Amendments to the Constitution. Those Amendments guarantee people the right to challenge government action that applies to them and which violates their rights. The exceptions and waivers are often made to ensure that the requirements of the Constitution are not ignored, i.e. to preserve rights, because failing to do that would lead to the invalidation of the entire law. For example, suppose it would violate the Constitution to deport someone who is 9 months pregnant and might lose the child on the journey. If there is no waiver or exception excluding such people from deportation, the court would strike down the entire deportation provision... or maybe even the entire law.

2. Moreover, if the new law conflicts with existing laws in some way, the court may strike down the new law depending on various factors. Once again, waivers and exceptions prevent this.

3. Waivers are needed to make the system work. Suppose the law says you need to complete the fence by June 1. If you're 99% finished on May 30, then you need a waiver to be able to finish the fence. Otherwise, the law would expire, work would stop, and the whole thing would need to start over. Waivers and exemptions are ways to make rigid requirements less rigid so you can account for changes you encounter along the way.

This is why the fact of the inclusion of waivers and exceptions is meaningless. What matters is what the waivers realistically allow, not that they exist.

● Just Follow The Constitution: People who say this typically have no idea what the Constitution provides or how it works. The Constitution divides power between the federal government, the state governments, and the people. It talks about the procedures of government. It rarely delves into the substance of government. And when it does, it invariably gives more power than people want to admit. The Commerce Clause, for example, gives the Congress the power to regulate anything that affects interstate commerce. That is an incredibly broad power and saying, "follow the constitution" is not a meaningful restriction. Immigration is the same. In fact, consider immigration.

Congress’s power to regulate immigration comes entirely from this sentence in Article I, Section 8: Congress shall have the power “To establish an uniform Rule of Naturalization.” That's it. So tell me, if someone says, “We should just follow the Constitution,” what exactly does that mean? Under this provision, Congress can pass anything it wants regarding immigration provided it is "uniform." And before you say, “that means everyone needs to be treated the same,” actually it doesn’t mean that at all. Uniform in this case means as between the states. In other words, one set of rules that will apply in all states; it says nothing about how we treat people who are here as citizens, visitors or illegals. Most other issues work the same way. The Constitution is rarely informative, except to the extent it tells us which part of the government has been granted the unlimited power to act this time.

Anyway, the point here is not about immigration or Obamacare, it's about legislation generally. The arguments above are false soundbites designed to make something sound like it is evil or obvious. The truth, however, is that these arguments are nothing more than misdirection. So when people pound the table saying these things, challenge them: ask them what the substantive problem really is... odds are they can't tell you.