Government Fallacy The First: Mistaking Law-as-in-Order for Law-as-in-Gravity
The question of the day was, “How do I know the name check was completed?” And it would take quoting the entire transcript of the August 31 Show Cause Hearing to fully demonstrate the vehemence which which Attorney Weishaupl argued against her client accepting the burden of proof for that. Her many repetitions of that argument (”Because I’m telling you it was.” “Because I was told it was done.” “There is documentation, but you can’t see it.”) made up about 92% of the hearing.
Judge Miller’s consistant response of “That’s not proof, and I’m not satisfied” comprised the next 5%. (And the last 3% was made up of Attorney Weishauple having her nose rubbed in her bad behavior, but that’s another matter.)
Here’s the first variant of Weishaupl’s argument. I like to call it Trust The Bureaucracy, or It’s a Law Like Gravity!
THE COURT:[T]here is one matter that appears to be missing. I don’t have any documentation with regard to the issue of whether the [FBI] completed the name check pursuant to my order. I had your representation that that was done, but I have seen no document that that was done.
Could you advise me, Ms. Weishauple, where that is?
MS. WEISHAUPL: Your Honor, there is no documentation regarding the completion of the name check; however, the name check was done. And the reason that you know the name check was done is that the Department of Homeland Security could not have completed the application, determination of the application for naturalization[,] absent the name check back from the FBI.
We have a procedure. We always follow procedure. If we got to step B, you can rest assured we must have gotten there via Step A. Anything else would be unpossible!
The problem with that is, DHS damn well could have “completed” the determination of Zuhair’s application without having gotten the name check back from the FBI. They shouldn’t have, but they could. There is a difference between physical possibility and legal responsibility. Nature compels the former, but only law enforcement such as the police and the courts compels the latter.
To put it another way: “Officer, I don’t have my license on me, but I do have a license. And you know I’ve got a license because I could not be driving, and you could not have pulled me over while I was driving, absent having received a license.” Do you think that would go over well?
To put it still another way: This bureaucracy already broke one rule and had to be taken to court over it–namely, it failed to determine Zuhair’s application within the legally mandated time period of 120 days. If they could break that rule, they certainly are capable of denying a citizenship application without having completed the process legally required to reach that determination.
Further, I’d say their known history of flouting the law as regards citizenship applications, and specifically the application of Zuhair Mahd, suggests they have little respect for legal requirements, insofar at least as they can be expected to follow them. (I’m sure they respect them just fine when they’re trying to enforce others’ compliance.)
So, no. Doesn’t work. Try again, ma’am.