[U] How This Whole Ball O' "Federal Regulation" Stuff Works: Primer For Primitive-In-Chief Edition -- H/T To Anon.

UPDATED @ 9 PM EDT: When I wrote the below this afternoon, I didn't have access to the Troglodyte in Chief's proposed rule text. It remains only a draft -- and may change -- but has now been uploaded to the drafts section of the Federal Register. Presumably tomorrow, the final version (ostensibly to take effect in 60 days) will be uploaded. In any event, it changes my analysis only slightly: I'd make the paragraph presently labeled as (4). . . paragraph (1). [I added the numbers just now -- for easy reference.]

After reading the rule text, and reaffirming the notion that this will immediately be litigated, and likely enjoined -- I am more than convinced that Mr. Trump here attempts to use a simple rule-making process to thwart a United States Constitutional imperative. That imperative vests all residual power not expressly delegated to the federal government, firmly in the hands of. . . yup, you guessed it! -- the individual states (do read the Tenth Amendment, dotard). The states, in turn, have ALREADY acted in this arena (i.e., filled the constitutional void) to require specified standards of licensure of facilities that will house children. It is thus manifestly "too late" under principles of federalism and comity for the Trump actors to now try to rewrite the existing landscape -- one that granted property rights to all children, even asylum-seeking children -- over two decades ago.

Make no mistake: this is not an immigration question, per se -- this is a "welfare of human children" question where the states have acted. The feds do not have the power to take away these property and due process rights, inside any state -- the same way the feds cannot force Colorado or Washington to repeal their green laws. So Trump is simply appealing to the Neanderthals in his base -- this is all for show. It will never be enforced -- not even for a single day. SO. . . the Condor predicts.

[End, updated portion.]

(1) Thanks to my erstwhile regular anonymous commenter, we are alerted to the Thursday attempt by 45 to (in his oddly misshapen view) issue regulations which would "withdraw" the government (his word -- but one cannot treat it as a treaty, with a foreign nation -- they is. . . us!), from the 1997 Flores decree.

(2) Um. No. See, dotard -- how this works is. . . a very capable federal judge (USDC Judge Gee, CD CA) has specifically rejected your motion to modify Flores, on these same parameters. [She called the government's motion "procedurally improper and wholly without merit."]

(3) No. The executive branch cannot simply nullify an existing federal court order (and the executive doesn't possess anything like plenary power related to already extant state licensing measures governing child care, day care, or child detention facilities) -- and that is exactly what the Flores decree (as reaffirmed July 30 of this very summer). . . is. At most, 45 might add or supplement to state level requirements, but he cannot remove state level requirements, without a full Congressional legislative act, that declared child detention/care the exclusive province of the federal government -- and even that (assuming this broken Congress could legislate such a feat!) would meet wildly justifiable hostility.

(4) Even putting that to one side, there is a pretty strong (almost iron-clad) argument that the federal government, acting alone, cannot override STATE childcare licensing facilities requirements (on federalism / state police power grounds), under our Constitution. And it is crystal clear that a judge has already determined that the aim of 45 here is to WEAKEN the existing state level protections. That he cannot do, under any sensible reading of 100 years' worth of US Supreme Court precedents.

So -- this proposed rule-making is DOA. It will of course be litigated to death, but it is simply more "bread and circuses" theatre -- for his MAGAts. That's like under 20 per cent of the actual American voters. The other 80 per cent think kidnapping, coupled to endless prison, is an. . . unacceptable way to treat brown children (especially asylum seeking families' children) at the border.

Stupid for-show politics only -- strictly for. . . the suckers. But that's the Cheeto's endless MO.

नमस्ते