Will Our Institutions Be Resilient or Reactive?

Fractionally Legal volume 32 offers some counter-programming to all the doom and gloom.

Hi, and welcome to Fractionally Legal Volume 32! Before I begin, please check out my interview with Tristan Snell, which I’ve posted on LinkedIn (in two parts). Tristan and I are aligned in our political beliefs, but in this interview, we’re discussing another strongly held belief: that the legal industry is in the process of being disrupted. Small practices with novel approaches—like my Your Fractional General Counsel and Tristan’s Main Street Law—offer a new (and superior) model for delivering legal services. Tristan and I are at the forefront of this movement, and if you’re interested, the full interview (in two parts) is available here and here. Enjoy!

Making Mass Deportation Into a Massive Legal Mess

I hear the term "constitutional crisis" bandied around a lot. In my opinion, we’re in a stupidity crisis.

With increased immigration enforcement—apparently against legal permanent residents and even some American citizens —these are troubling times for anyone who believes in the rule of law and free speech. But this is not a crisis, if only because the people who are wantonly violating free speech rights and the rule of law are, frankly, dumb. They may, of course, get away with it. But like the class clown in elementary school who charms his way out of being punished, they will eventually become high school losers.

You may accuse me of being a little Pollyanna about everything going on. I respect that. Politically, we’re in an awful place, with the opposition feckless and the authoritarians emboldened. We’re also seeing our government trashed by a group of people who don’t value it, leaving America weakened. I’ve written before about how Trump and Musk’s approach to downsizing the federal government is ineffective and how incompetent these people are. Maybe they will find a way to shut down the opposition and build a 1000 year empire presided over by the Trump Dynasty. But it's not looking good for them.

Remember, Trump actually did not run on downsizing the federal government. That is the ketamine-induced fever dream of Elon Musk and the Project 2025 posse. Trump ran on the promise of “Mass Deportation.” So you’d think that was something where his best people would be doing their best work and establishing a framework that would, eventually, allow them to deport anyone who they don’t like. So let's see how that is going.

The easiest people to deport are those without legal status who are already in immigration detention. Trump apparently found a bunch of them, accused them of being part of a gang that has invaded America at the command of the Venezuelan government, and summarily deported them to a “mega prison” in El Salvador. If this sounds weird, it's because it is. And while everyone takes it at face value that these are gang members, there is a good chance a few are not. But Trump does not seem to care. That is what “mass deportation" looks like.

The question that Trump’s team should have been asking is: How do we deport a lot of people quickly with as little legal blowback as possible? One easy thing to do is speed up deportation proceedings, such as creating a 24-hour process for the deportation —administrative appeals and all. A lot of the process regarding how deportations work, is not in the law but rather in the process dictated by the Justice Department (“DOJ”). The guidance is really wonky and actually says things like the following:

“Department of Homeland Security shall take all reasonable steps to comply with a stay granted by an immigration judge or the BIA, but such a stay shall cease to have effect if granted or communicated after the alien has been placed aboard an aircraft or other conveyance for removal and the normal boarding has been completed.”

Gotta love the Trump DOJ lawyers who don’t even appear to read their own guidance.

Tweaking the rules would have allowed Trump to quickly provide “due process” and deport people without legal status by running the process and getting the deportees on the plane to the “mega-prison” as quickly as possible. Would anyone really care? I doubt it. The speed-up process probably would have been challenged, but the arguments would have been very technical, focusing on DOJ procedures—such as whether deportation decisions could be stayed pending review by federal courts or whether Trump could summarily deport people who, presumably, would be appealing the case from whatever country received them (although good luck with that from the “mega prison”). That would be cruel, but it would be mass deportation done right. Or, as I like to say, “the wrong thing done the right way.”

But Trump, being both a maximalist and a moron, decided to ignore the process and his own guidance and use the 1789 Enemy Aliens Act to justify his ability to just deport non-citizens.

Good luck with that. The 1789 Enemy Aliens Act either requires a declaration of war (which Congress has not done) or a “threatened or ongoing invasion or predatory incursion” before a President can deport non-U.S. citizens without due process. In the 18th century, an “incursion,” for those interested, referred to a small group of soldiers entering foreign territory (as opposed to a large-scale "invasion"). Trump could win, but it would take the Supreme Court to believe that a few thousand gang members who came of their own volition to the U.S. constituted an "invasion" or “predatory incursion” because the government of Venezuela sent them. Courts require actual proof. Lawyers know how hard that is. So it's a crapshoot at best that the Supreme Court would allow the use of the Enemy Aliens Act under these circumstances. The Court might allow the government to make a record that the deportees are some type of invading force sent by Venezuela to attack America or that they were involved in an “incursion.” I doubt the government can make that record.

The stupidity of this strategy is that the government can’t use the Enemy Aliens Act while the Court reviews whether they were allowed to do so for these few hundred deportees. Those appeals are going to take at least a year. And if that was the plan, they just lost a year, at least. The best lawyers in the DOJ who are actually committed to the Trump agenda are stuck defending stupidity. And in the interim, if they want to execute their signature “Mass Deportations,” they need to find another way to do it.

I know this is all academic because some members of Team Trump are just going to deport people regardless of what the courts say. The head of ICE, Tom Homan, explained:

“I don’t care what the judges think. I don’t care.”

That is just a stupid thing to say.

First, it means that even where the law appears to be in his favor—such as the ability to speed up due process and deport non-citizens—Homan is just going to ignore it because not reading the law is easier than reading the law, I guess.

Second, as I wrote before, Mr. Homan is making a risky bet that no one will ever enforce 5 U.S.C. § 7311, which makes it illegal for a government employee to “advocate the overthrow of our constitutional form of government.” Ignoring the courts is a rejection of Article III of the Constitution. That is the legal strategy known as “not getting caught.”

Third, by saying something like that, I’m fairly certain Mr. Homan waived his “qualified immunity.” For background, under current Supreme Court case law, government officials like Mr. Homan are immune from civil suits provided that they are not violating a “clearly established” right. People who are wrongly detained and deported in violation of a court order will argue that they had the right not to be detained or deported without due process. Homan, apparently, is aware that there needs to be some process—but he does not care. That is a violation of a “clearly established” right if ever I've seen one. Oops.

While it's hard to see through the torrent of bad news, if we step back for a moment, we can recognize that we’re dealing with a pretty inept group who can’t even execute their signature policy—mass deportation—correctly.

On Reform

Anyhow, this is all par for the course. I’ve heard some very smart people recently say that “politics is downstream of culture,” meaning that where culture goes, politics follows. I think that’s right. We have a much more crass, permissive, and winner-take-all culture than ever before, and it has infected our politics in deeply negative ways. For example, some people—on both the right and the left—now feel comfortable undermining the rule of law to advance their political agendas. A lot of the defeatism I see on the left stems from the realization that, while we may win some political battles in the Trump era, the broader culture favors Trump’s disruptive, extrajudicial, and chaotic approach over the institutional, optimistic, consensus-driven, and reasoned approach that used to dominate. That’s an oversimplification, but I think it explains a lot of what’s happening.

I see the law reacting to this culture of chaos and disruption in two very different ways.

One is a belief in institutional resilience. Our government institutions are designed to withstand cultural and political shifts. The federal Constitution specifically creates three co-equal branches of government to prevent any one from being co-opted. Over the years, we’ve built an entire "administrative state" that is influenced—but not entirely controlled—by Congress and the Executive Branch. And let’s not forget that the states themselves are separate sovereigns. The Tenth Amendment ensures that any power not specifically granted to the federal government is reserved for the states. Most of the lawsuits we’re seeing—and will continue to see—revolve around the idea that institutions can and will stop the chaos.

Institutional resilience is a legitimate reaction. But, to draw an analogy to something many of my clients are dealing with, it’s like believing that your old, shoddy “Class C” office space will maintain its value in the era of remote work. It’s a reasonable bet, but the long-term trends are definitely negative.

That said, none of my clients are abandoning their Class C buildings or engaging in fire sales. Instead, they’re repositioning their assets—either by renovating them for new office uses or repurposing them as housing, aided by long-overdue zoning changes.

And that leads to the second reaction to the culture of chaos and disruption: disrupt! Instead of merely protecting institutions, let’s propose alternative disruptions—and when we’re actually back in power (which will happen), let’s implement them. There’s a little cognitive dissonance required here because proposing radical institutional overhauls contradicts the idea of institutional resilience. But we should put everything on the table and stop treating these ideas as far-fetched or radical.

Some examples?

• Term limits for Supreme Court justices.

• The National Popular Vote Compact.

• Repealing the Faircloth Amendment so the federal government can build housing
  (I’ve written about this before: https://fractionallyyours.substack.com/p/housing-of-cards-why-us-housing-policy?utm_source=publication-search.)

Those are just a few I’ve been thinking about.

I also think we need to have an important discussion about the role of government in the twenty-first century.

After the last round of government abuses under President Nixon and the major infrastructure projects of the past century that disrupted communities, there was a well-intentioned generational effort to restrain government action. But on the flip side, we now have a government that is more committed to doing no harm than to doing big things. I see that everywhere.

• The fact that we prioritize "community input" over the urgent need to build housing defies logic.

• The fact that we allow people to live on the streets or in the subway simply because they feel like it also defies logic in a time when we need to prioritize public transportation and public spaces.

• And the fact that we don’t regulate social media because we think that free speech rights triumph over the mental health of our children is one of the great failings of our politics.
  (https://fractionallyyours.substack.com/p/how-we-dont-regulate-social-media)

If you’re interested in these issues, here are two books that take a hard look at how those who believe government can be a force for good have, inadvertently, prevented exactly that:

• Abundance by Ezra Klein (https://www.simonandschuster.com/books/Abundance/Ezra-Klein/9781668023488)

• Why Nothing Works by Marc J. Dunkelman (https://www.hachettebookgroup.com/titles/marc-j-dunkelman/why-nothing-works/9781541700215/)

These are difficult issues that require a fundamental rethinking of how we approach government. But in an age of disruption, they point a way forward.

Keep building. Keep thinking.

Jesse

Hi, and welcome to my newsletter! I’m Jesse Strauss, Your Fractional General Counsel. I’m a lawyer with a private practice based in New York City, helping clients in the United States and globally with their U.S. legal needs. My expertise spans various areas, including raising funding rounds, employment issues, negotiating master service agreements, intellectual property, compliance, legal process management, and dispute resolution. My focus is on founding and nurturing great companies from seed to exit. Discover more atYour Fractional GC and book a complimentary 30-minute consultation. You can also follow me on Threads @lawyerjesse1977, on BlueSky @lawyerjesse.bsky.social, subscribe to my Substackhere (follow me on notes), and follow me on LinkedInhere