Has the Travel Ban Already Been Defeated?

by Rich Lowry

Reports tonight are that the administration won’t immediately take the executive order case to the Supreme Court and it may re-write the order. I’m with those, including Charles Krauthammer as related in the post below, who think this makes a lot of sense.

Consider the the current state of play: Unless the administration has some clever stratagem that pulls a legal rabbit out of a hat, it’s hard to see how the travel ban hasn’t already been effectively defeated. With every day that passes with the ban suspended, the case for its rapid imposition (stopping dangerous people from flowing here) as well as its overall rationale (to allow for a pause while better procedures are established) gets weaker. Any radical who was on the verge of coming here prior to the ban is presumably on his way now, and there’s nothing stopping the administration from setting up tighter procedures while the executive order case is proceeding, which makes the argument for re-imposing the ban at some later date if the case is somehow decided in the administration’s favor more tenuous.

The backdrop here is what appears to be a legal box canyon. If the administration did take its argument up to the Supreme Court, it seems likely that it would lose, assuming that the Court even takes the case now (it might  very well pass, letting the inevitable preliminary injunction that will come from Judge Robart and the 9th Circuit play itself out). Maybe the administration can delay, waiting for Judge Gorsuch to get confirmed, but even with him on the Court, victory is not assured.

The administration, though, has the unilateral power to re-shape the debate and moot the current proceedings. It could re-fashion the executive order by, say, removing the issue with lawful permanent residents and giving up on the temporary ban, while focusing on stricter vetting through visa issuance procedures at the embassies and via secondary screenings at the airports. This wouldn’t make the legal attacks go away. But it would shift the terrain in the administration’s favor at the same time it wouldn’t give up the core of the policy, as Krauthammer persuasively argues. Remember: the temporary ban is not supposed to be about the temporary ban, but about providing a bridge to stricter vetting.

An opponent of giving any ground whatsoever might say there is an important principle at stake here about an over-reaching judiciary, and of course there is. But that makes it all the more important to fight shrewdly, and the current path seems likely to provide the occasion for very bad law that is a enormous victory for the Left on immigration going forward (just read the 9th circuit ruling for the worst case). So, there is a good argument that the best tack isn’t SEE YOU IN COURT, but SEE MY NEW EXECUTIVE ORDER.

Krauthammer’s Take: Slow-Walk the Executive Order Appeal, Fast-Walk Gorsuch Nomination

by NR Staff

Referring back to his column today, Charles Krauthammer pointed out that it’s more important to have vetting than a travel moratorium, and he added that in the grand scheme of things, Trump should be most concerned about getting Neil Gorsuch on the Supreme Court:

The point I wanted to make in the column was, there is the moratorium, and there is the vetting. The vetting will get 90 percent support in the country, but they actually should do it. It doesn’t depend on a moratorium. The fact is, they have lost the case in the most liberal circuit in the country, they’ve lost it at the district level, and for now, the Supreme Court is deadlocked, so it’s likely to return. In other words the case is stacked against them. I happen to think it’s legal, but these courts have decided not, so why play a losing hand? What he needs to do — I think it’s exactly right — either rewrite the order or have a new one, so you are dealing on a different playing field. You’ve gotten essentially the feedback of the ninth circuit, so you know what will pass muster and what won’t. For example, from the beginning, you exclude the holders of green cards, and then what you do is, you slow-walk the appeals case and you fast-walk the nomination of Gorsuch. There is no hurry on appealing this ruling. They are not going to win it in the end. Put out something else, accelerate the vetting process, announce new procedures — there is a way to keep out people in these seven countries simply by the vetting process. They essentially have no central government. They have no information. So you can write the vetting process in a way that will honor the moratorium, even without calling a moratorium, and get the other justice on the court so that if it ever gets bumped up to the Supreme Court again, he’ll win.

The Accelerating Pace of Change in Higher Education

by George Leef

Back in 2011, I came across a book whose title intrigued me: Abelard to Apple by Georgia Tech computer-science specialist Richard DeMillo. In it, DeMillo argued that higher education was in the throes of change, moving away from the old lectures in ivy-covered buildings mode and toward an electronic mode. I reviewed the book, here.

In 2015, DeMillo wrote another book on the same theme, Revolution in Higher Education: How a Small Band of Innovators Will Make Higher Education Accessible and Affordable.

I asked him if he would care to sum up his case in an article for the Martin Center. He agreed, but since he’s a horribly busy man, he finished it only recently. In “The Accelerating Pace of Change in Higher Education,” he points to the trends that make him more optimistic than ever.

Back in 2011, for example, his idea for an online master’s degree in computer science at Georgia Tech was a fledgling. Today, the degree is in high demand. Online learning can be very successful.

Adverting to Moore’s Law, DeMillo writes, “The pace of innovation is determined not by the plodding, consensus-oriented processes for which academia is known, but by technology curves that enable a doubling of capabilities every few years.”

Nor will the improvements be limited just to the STEM fields. The liberal arts will also benefit from advances in pedagogy that new technology makes possible. Although the “we can’t do that” syndrome is a substantial obstacle there, innovators are going around the bureaucratic bottlenecks. DeMillo optimistically writes, “Buckminster Fuller once argued that changing the course of a large tradition-bound enterprise could be accomplished not by a frontal attack, but rather by making the existing way of doing things obsolete.”

A point that DeMillo doesn’t make but I think important is that as the revolution proceeds, it will weed out lots of really useless and even harmful “higher education.” When students can do much if not all of their learning online, choosing among competing programs and courses, the lock that lazy and/or politicized professors had on students who had no choice but to take what their college offered will be broken. Higher education will cost less in the future and much of the current junk will be swept away.

To Drain the Swamp, Kill the Ex-Im Bank

by Veronique de Rugy

President Trump’s campaign promise to “drain the swamp” in Washington set himself up for inevitable criticism, given that simplistic campaign-trail one-liners don’t hold up well when finally confronted by Beltway realities. But if the reports are true that Trump has decided to support the restoration of the crony Export-Import Bank’s full lending authority, it would be akin to the president deciding to instead happily bathe in the swamp and gargle the muck.

According to Politico, Trump told Democratic senators Joe Manchin (W.Va.) and Heidi Heitkamp (N.D.) that he basically changed his mind about the agency:

“Ex-Im Bank was big news, he wants to get that done. [Trump] said, ‘I’ve changed my mind completely on that. I’ve seen how it functions and what it can do and we can’t compete if we don’t have a functioning Ex-Im Bank,’” Manchin said, recounting Trump’s remarks. “Before, he thought it was different. So he’s changed and he’s 100 percent. He said, ‘you can tell everyone I said that.’”

Senator Heitkamp had her ​pro–Ex-Im talking points ready:

“It’s great news he agreed and said he would nominate someone to serve on the Ex-Im Bank Board very soon so the agency — which has been stalled for a year — can fully function and keep supporting American workers and small businesses, including many in North Dakota, just as it has done for more than 80 years,” Heitkamp said.

If true, the news is only “great” for Boeing, GE, and the other major recipients of Ex-Im’s corporate welfare. It is also at odds with his campaign promises since much of the way the program works is that it gives cheap loans — backed by Americans all over the country — to foreign companies in China, Russia, Saudi Arabia, and the UAE. Restoring Ex-Im’s full lending-authority powers is renewing the policy to give cheap loans backed by workers in the Rust Belt to companies like Ryanair ($4 billion in guarantee loans over ten years) and Emirates Airlines ($3.9 billion over ten years) so they can have a large competitive advantage over U.S. domestic airlines like Delta and United. It continued to subsidize the large and prosperous state-owned Mexican oil company PEMEX ($9.7 billion over ten years).

Seriously? That’s president Trump’s vision of draining the swamp? No, that’s the vision of the Democrats — who talk a good game but are the biggest corporatists when it comes to this stuff — and big-government Republicans.

It would also undo one of the only victories free-market lawmakers have had in Congress in their attempt to drain the swamp. It means that if the president follows through on what the Democrats say he said, it will put him at odds with many of those who are working with him. He may also face resistance from the new chairman of the Banking committee, Senator Crapo (R., Idaho), who may decide to do the right thing and follow in the courageous steps of former Chairman Richard Shelby (R., Ala.) who refused for months to move the President Obama’s nominee. After all, a majority of the majority in the Senate is against Ex-Im and there is no reason to see its full lending powers restored just because the Democrats want it. President Obama isn’t in power anymore.

Abu Bakr al-Baghdadi v. Trump, a Ninth Circuit . . . Parody?

by David French

Last night, shortly after the Ninth Circuit blocked enforcement of Donald Trump’s immigration executive order, I saw this tweet:

Mr. Crown was more correct than he knows. Thanks to my time machine, I was able to secure a copy of the following opinion, dated October 18, 2019. It’s from a panel of Ninth Circuit judges, per curiam:

Abu Bakr al-Baghdadi and the State of California, et al., v. Donald J. Trump, President of the United States

This matter comes before the court through the Trump administration’s appeal from the United States District Court for the Northern District of California’s worldwide ban on American bombing raids against alleged members of the so-called Islamic State, better known as ISIS. The alleged leader of ISIS, Abu Bakr al-Baghdadi filed suit to stop the American aerial offensive, and the state of California intervened on his behalf.

Mr. Baghdadi claims that the bombing campaign violates his clearly-established rights under the Fifth Amendment to the United States Constitution. The state of California claims that the systematic attacks are depriving its public university system access to a number of Islamic legal scholars, including Mr. Baghdadi. Faculty members testified during the district court proceedings that they wished to invite Mr. Baghdadi to lecture students regarding his master’s thesis in Koranic recitation, and Mr. Baghdadi testified that a number of ISIS fighters are indeed actively seeking to enter the United States. The government does not dispute that they will be unable gain entry if their remains are spread across the rubble of Raqqa.

In addition, California argues that the Trump Administration’s efforts to kill Mr. Baghdadi are motivated by anti-Islamic animus and thus violate the Establishment Clause and the Equal Protection Clause. As evidence to support their claims, California points to prestigious faculty appointments held by non-Islamic alleged terrorists like William Ayers and Bernardine Dohrn and to numerous Trump campaign statements declaring an intention not just to ban Muslims from entry to America but also, more ominously, to “bomb the sh*t out of” ISIS – an explicitly religious organization.

After hearing oral arguments via conference call, with Mr. Baghdadi’s counsel participating through a series of threatening tweets, this court affirms the district court order and enjoins bombing raids directed at ISIS or its members, subsidiaries, and affiliates.

We begin our analysis with our 2017 opinion in Washington v. Trump. In that case we noted that the Fifth Amendment of the Constitution prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” Moreover, “the Government may not deprive a person of one of these protected interests without providing ‘notice and an opportunity to respond,’ or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered.”

Critically, we also held that the due process rights articulated in the Fifth Amendment attach not merely to citizens and persons in the United States, but also to persons seeking to come to the United States. At a minimum, then, Mr. Baghdadi (and any other members of ISIS seeking to travel to the U.S.) are entitled to “notice and a hearing” prior to having their travel interrupted by Hellfire missile. While Mr. Baghdadi is unquestionably on notice of the government’s intention to kill him (notice that he describes as “loud, daily, and terrifying”), he also unquestionably has not had an opportunity to contest the charges against him.

In addition, Mr. Baghdadi raises credible claims of religious bias in the American bombing campaign. He asserts that American operations violate the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. As we held in Washington v. Trump, “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” And that evidence is indeed damaging. Mr. Trump has repeatedly labeled ISIS as explicitly religious, calling it “radical” and “Islamic,” and his avowed intention to “bomb the sh*t” out of ISIS cannot be divorced from this religious context.

Furthermore, the state of California is indeed correct that American universities have benefited widely from the scholarly insights of alleged non-Islamic bombers like Mr. Ayers and Ms. Dohrn – in spite of the fact that they were reportedly involved in multiple acts of terrorist violence, Mr. Ayers in fact once told the New York Times, “I don’t regret setting bombs” and expressed regret that “we [his alleged terrorist organization] didn’t do enough.” It is a foundational principle of equal protection jurisprudence that similarly-situated individuals should be treated alike. The Trump administration has failed to articulate why a non-Islamic alleged terrorist gained tenure while a squadron of Super Hornets prevents an Islamic alleged terrorist from presenting papers at Berkeley.

Just as in Washington v. Trump, “the Government has pointed to no evidence” that Mr. Baghdadi or any of the countless, nameless targets of American bombs “has perpetrated a terrorist attack in the United States.” Therefore, the balance of the equities dictates that we must rule for Mr. Baghdadi. Ending the bombing campaign in Syria will have the salutary effect of saving the taxpayers a considerable sum of money and of ending systematic discrimination against a marginalized religious minority. Continuing the campaign means that it is only a matter of time before Mr. Baghdadi and his confederates suffer the irreparable harm of a JDAM attack.

The Government’s motion for a stay pending appeal is DENIED. The war is enjoined.

Trump Administration’s Estimated Price of the Border Wall Rises, Again

by Austin Yack

On June 16, 2015, Donald Trump announced his candidacy for president of the United States. Introducing what soon became his signature campaign promise, Trump vowed that, if elected, he would “build a great, great wall on our southern border,” and that he would do so “very inexpensively.”

On Thursday, however, Reuters obtained a U.S. Department of Homeland Security internal report revealing that the Trump administration’s plan to construct the 1,250-mile wall will come at over four times the cost that Trump had originally promised. According to the report, DHS anticipates that the wall will cost taxpayers — not the Mexican people as previously promised — $21.6 billion. Moreover, it will take three and a half years to complete.

The wall’s projected price tag and construction time have increased drastically over the past 20 months since Trump’s presidential campaign began. During his first eight months on the trail, Trump suggested Mexico would pay for the estimated $5 billion wall, relieving U.S. taxpayers of bearing the cost for such a major project. At the New Hampshire Republican primary in early February 2016, Trump altered his story; Mexico would still bear the cost of the wall, but it would now be an $8 billion project. One week after emerging as the winner of New Hampshire’s primary, Trump told MSNBC in a town hall that “the wall is going to cost a fraction of that, maybe 10 (billion dollars) or $12 billion.” Now, the estimate is double that.

The timeframe, too, seems to be slipping. Throughout the campaign, Trump promised that his wall “would be complete within two years from the time we start.” Indeed, DHS secretary John Kelly reiterated as late as last week that he hopes “to have [the wall] done within the next two years.” And now, according to Reuters, it will “take more than three years to construct.”

Which is to say that the promise has gone from a two-year, $5 billion project funded by Mexico, to a three-and-a-half-year, $21.6 billion project funded by U.S. taxpayers. Such a transformation places Trump’s wall in an entirely different category of government funding. The Department of Interior, which manages federal land, only received $13.4 billion in fiscal year 2017. If Bernstein Research, an investment research group, is correct in that the real cost of the wall will be $25 billion, U.S. taxpayers will have spent nearly double the amount on the wall than an entire federal department spends in a year.

The Trump administration may have a plan to build the wall with taxpayer dollars, but the fate of such a project remains where it belongs: in the hands of Congress. Lawmakers ought to consider whether Trump’s campaign promise is worth such a heavy price tag.

The Life Cycle of a Sidney Blumenthal Smear

by Ian Tuttle

Birth

From “A Short History of the Trump Family,” written by Sidney Blumenthal (yes, that Sidney Blumenthal), published today by the London Review of Books:

In 1969, Fred Trump plotted to run for mayor of New York against John Lindsay, a silk-stocking liberal Republican. The reason was simple: in the wake of a New York State Investigations Commission inquiry that uncovered Fred’s overbilling scams, the Lindsay administration had deprived him of a development deal at Coney Island. He made two test television commercials. One of them, called ‘Dope Man’, featured a drug-addled black youth wandering the streets. ‘With four more years of John Lindsay,’ the narrator intoned, ‘he will be coming to your neighbourhood soon.’ The ad flashed to the anxious faces of two well-dressed white women. ‘Vote for Fred Trump. He’s for us.’ The other commercial, ‘Real New Yorkers’, showed scenes of ‘real’ people from across the city, all of them white. Fred Trump, the narrator said, ‘is a real New Yorker too’. In the end he didn’t run, but his campaign themes were bequeathed to his son.

juvenescence

Vanity Fair: “Sidney Blumenthal Returns to Eviscerate Donald Trump”

Mother Jones Washington bureau chief:

Washington Post fact-checker:

adulthood

Politico:

But the videos were not actually created by Fred Trump’s campaign, because the campaign never existed. Terry Golway, a senior editor at POLITICO who has written extensively about the history of New York City politics, said that he cannot recall Fred Trump ever being mentioned as a potential candidate to run against Lindsay in 1969. . . .

The videos were created and uploaded to Youtube and Vimeo last year by “Historical Paroxysm,” an art project that creates and shares “found footage from alternate realities.” Other videos uploaded by Historical Paroxysm include (fake) saran wrap ads supposedly from 1988 and sex-free pornography supposedly from 1991. Both the saran wrap ads ad the porn videos were created by Laura Moss, a freelance filmmaker.

senescence

A correction (sort of) from the LRB:

A paragraph referring to Fred Trump’s campaign for mayor of New York, although it accurately reflected Trump’s racial attitudes and his hostility towards Mayor John Lindsay, has been removed because the campaign ads referred to appear to be clever fakes.

death

Actually, a smear lives forever on the Internet. That’s the point.

The Editors: The Ninth Circuit

by NR Staff

Check out the latest episode of The Editors, in which Charlie Cooke, Ian Tuttle, and Reihan Salam discuss the Ninth Circuit’s per curiam ruling against Donald Trump’s immigration order, Betsy DeVos, and more!

On the Right to Wear Hats

by Ramesh Ponnuru

Devin Watkins takes issue with me over the scope of judicial power. I think, though, that he misunderstands the nature of our disagreement.

He and I both agree that people have a right to wear hats even though that right is not listed in the Constitution. We both agree that the Constitution protects such unenumerated rights. Watkins appears to believe that federal courts therefore have the power and the duty to strike down any laws (or at least any federal laws) that infringe on that right. That’s the point where we part company.

Watkins believes that I wish “to leave these unenumerated rights up to the legislature. That makes no sense: Something that’s a right can’t be subject to legislative grace.” But I don’t believe in leaving these rights up to the legislature. The legislature has to be checked in all kinds of ways, such as by executive vetoes, by a free press, and by elections before a liberty-minded public opinion.

Drafting and ratifying a Constitution that lists enumerated powers of the federal government was an important way of cultivating such a public. Another was drafting and ratifying amendments that list enumerated rights and then say that they are not an exhaustive list. James Madison appears to have thought so, at any rate, in his 1789 speech to Congress in favor of a Bill of Rights. Note also that the speech’s discussion of the role of the courts in defending rights a) comes well after the discussion of the role of public opinion and b) refers specifically to rights “expressly stipulated” in the Bill of Rights.

To say that “a right can’t be subject to legislative grace” begs the question. A natural right exists whether or not a legislature or a court recognizes it. Its existence does not depend on a vote of legislators or a vote of judges. Its recognition and defense, on the other hand, depend on what institutional arrangements have been supplied for those purposes. What arrangements the Founders supplied (and secondarily whether they got it right) are the substance of this dispute.

Watkins’s example of the right to wear hats, borrowed from Founding-era debates, illustrates rather nicely that our unenumerated rights are protected chiefly through nonjudicial means. We are free to wear hats, after all, and not because courts have been busy striking down laws that infringe on it. But our freedom is not absolute. We don’t have an unlimited right to wear them in driver’s license photos or in airport metal detectors. The right has thus been both protected and intelligently refined without substantial judicial involvement, and it is not at all clear that such involvement would have made us better off.

P.S. I also think that Watkins has the late Robert Bork’s view of the Ninth Amendment wrong. Compare his description of that view to Bork’s words quoted here.

Böhmermann, Erdogan and Merkel’s Illiberal Democracy

by Andrew Stuttaford

BBC (my emphasis added):

The Hamburg court said that it stands by its order, issued last May, which prohibited republication of parts of a poem by German comic Jan Boehmermann. The satirist, who is barred for repeating the majority of the verses, says he will appeal the verdict. The poem, first broadcast in 2016, led to a free speech debate in Germany, and diplomatic tension with Turkey.

Mr Boehmermann’s lawyer, Christian Schertz, said Friday’s verdict “does not take into account freedom of artistic expression”.

But in a statement, the court said: “Satire that is secured under artistic freedom could be forbidden when it touches on the core area of personal freedom.” However, the court also said that a head of state must expect heavier criticism than a regular citizen. The poem played on President Erdogan’s reputation for cracking down on free speech at home, and included vulgar sexual references. The Turkish president filed a criminal complaint against the satirist after it was broadcast on German television last March.

The criminal charges were later dropped, but the poem remains banned in Germany.

The case hinges on a rarely used 19th-century section of German’s criminal code that prohibits defamation of foreign heads of state…

The court objected to 18 of the poem’s 24 lines, deeming them “abusive and defamatory”.

Well, they were certainly abusive (text here: trigger warnings, good taste warnings, naughty word warnings, rubber mask warnings, etc.), but they were also clearly satirical. To suggest that they were defamatory would be to suggest, I reckon, that they could be taken seriously. And who could possibly think that? I mean, goats.

The attempt by Turkey’s thuggish leader (and, yes, I’m old enough to remember when The Economist used to describe him as ‘mildly Islamist’) to arrange for Boehmermann to be prosecuted ought to have been seen off by any German chancellor worthy of that role. Unfortunately, Angela Merkel is not that person.

Here’s Stefan Kuzmany, writing in Spiegel Online earlier this year:

Merkel apparently sought to take the wind out of Erdogan’s sails by hastily having her spokesperson announce that the Böhmermann poem was “consciously injurious.” She could have thrown her support unmistakably behind Böhmermann, as one might expect from a chancellor charged with defending the German constitution. His poem was very clearly meant as satire; none of the uncomely imputations therein should be taken — nor were they meant — seriously. The chancellor, of course, knows as much. Yet by adopting Erdogan’s viewpoint, she has essentially allowed him to determine what should be viewed as satire in Germany and what not. Now, the chancellor must decide if German prosecutors should be allowed to open a case over the insulting of a foreign head of state — but because she already described the poem as “injurious” via her spokesman, she has very little room for maneuver.

She panicked, in other words, not the first time she has done so as chancellor. 

And yes, she gave the prosecutors the go-ahead.

Back to the BBC:

After the case became a national talking point, German Chancellor Angela Merkel said the authorities would move to repeal article 103 – concerning insults against foreign heads of state – by 2018.

2018! Merkel is notoriously no friend of free speech, but she might at least pretend…

Protesters Attempt to Shut Betsy DeVos Out of a Public School

by Paul Crookston

Secretary of Education Betsy DeVos was harassed today outside a school in Washington D.C.

Employing the “Shame! Shame! Shame!” chant, which was popularized by characters on Game of Thrones who sought to run a fundamentalist theocracy, DeVos’s unhinged detractors exhibited a zeal reminiscent of a religious inquisition, the public school establishment being the magisterial authority and shame being pronounced on all who do not bow to its demands.

The Washington Teachers Union who organized a protest outside the school said that they did not approve of those barring her entry, but, some seemed happy to take the protest as an opportunity for a show of force. Washington’s WJLA reports that she was later able to enter the school.

This is likely to be the new normal. DeVos makes progressives’ blood boil because their opposition to school choice goes to the core of their cultural power. As David French put it:

These ideologues want to control public education, they want to use public education to inculcate secular progressive values, and they want public education to be freed from any meaningful competition. DeVos opposes all those goals, so her desire to help poor kids, her millions of dollars in philanthropy, and thousands of hours of work weren’t even deemed worthy of respect.

It may seem outrageous to heap all this abuse upon a grandmother working to improve children’s education. But none of DeVos’s good deeds will ever be able to outweigh the fact that she believes families should have options besides a secular progressive education. Given the power that flows from teachers’ unions’ networks and financial resources, DeVos can expect to face obstruction in many more places beyond the doors of this school.

WATCH: Liberal Student Stuns Everyone by Standing Up For Milo Yiannopoulos

by Ericka Andersen

Liberals and conservatives have always disagreed, but the mentality around disagreement has changed in recent years. Specifically, the progressive movement has begun shutting down free speech, most recently demonstrated in last week’s violence at UC Berkeley. Conservative speaker Milo Yiannopoulos was scheduled to speak and students went ballistic. 

President of the University of Maryland College Democrats Matt Teitelbaum was a rare voice of reason in the storm, writing an op/ed in the Huffington Post defending Yiannopoulos’s right to speak. In an appearance on Fox News, Teitelbaum says he doesn’t agree with most of what Yiannopoulos says but he “will defend to the death his right to say it.” 

If only there were more young politicos like this one: 

Trevor Noah Is Wrong Again, This Time on DeVos

by Alexandra DeSanctis

Host of The Daily Show Trevor Noah seems hell-bent on pushing his progressive agenda at the expense of viewers who have an actual sense of humor. While former host Jon Stewart was also openly progressive, these days the show is altogether devoid of good-natured joking with Noah at the helm. Instead, Noah almost unfailingly spends his hour picking on conservatives and twisting the available facts to suit his own narrow view of American politics — which he clearly doesn’t understand even half as well as he thinks he does.

The latest proof of Noah’s problem was his attack on Betsy DeVos, who was confirmed as secretary of the Education Department earlier this week in the closest confirmation vote in Senate history, with Vice President Mike Pence on hand to cast the tie-breaking vote in her favor. Like most progressives, Noah seems to have completely bought into the many unfounded criticisms of DeVos’s record on education reform, baseless accusations that almost cost her the job. Here’s what Noah said in the segment:

America seems to be going back to a place where your wealth will determine how much knowledge you can attain. And so I think it’s a scary time. If Betsy DeVos gets to do everything she wants to, you will live in a world where even more people who do not have the means will now no longer have the opportunity to achieve the means.

Because Noah didn’t bother to understand the U.S. education system before launching a no-holds-barred assault against our new Education secretary, he missed a crucial point: The system he describes is the very system we already have. What’s more, it’s the system that DeVos herself is opposed to and wants to reform by expanding school choice and instituting voucher programs.

Neglecting this essential detail, Noah went on:

It goes back to that saying, which is: ‘Teach a man to fish.’ Well, now it looks like in America it’s: ‘Can the person afford to be taught how to fish?’ And we get further and further away from people being able to feed themselves.

This is precisely the critique that conservative advocates of education reform offer. DeVos has devoted much of her professional life — and millions of her dollars — to advancing the idea that one’s economic status shouldn’t dictate the education he receives. Our current public-school structure perpetuates a failing system in which low-income children remain stuck in low-income neighborhoods and never obtain the type of education that would allow them to climb out of their situation.

The real reason that Noah and fellow progressives so staunchly oppose school choice and voucher programs as detrimental to low-income families and children — when, in fact, they are the very opposite of detrimental — is because of the left’s allegiance to teachers’ unions, which have a huge financial stake in preserving the failing public-school system exactly as it is.

It’s fine for Noah to come to the U.S. from his home in South Africa and make a career here as a comedian, and it’s fine for him to be a comedian incapable of producing a laugh without engaging in bitterly partisan attacks. What’s not acceptable is that he grossly misinforms the American public in the process.

Watch the full clip here:

Friday links

by debbywitt

An animated history of Valentine’s Day, plus an explanation of why the heart is associated with love.

DIY machine sorts M&Ms and Skittles by color.

BBC: The untranslatable emotions you never knew you had.

Supercut of people running in slow motion in movies.

Humans And Booze – A 9,000-Year Love Affair.

Eating spicy food might help you live longer.

ICYMI, Monday’s links are here, and include the etymologies of all 50 state’s names, 1649 suggestion for adding weasel brain to your cheese to keep rats and mice away, WW1 meatless (and wheatless) recipes, and a Bill of Mortality showing causes of death in London for the week of Aug 15 – 22, 1665. 

Ten Things that Caught My Eye Today (Feb. 10, 2017)

by Kathryn Jean Lopez

I hope some among readers here in the North East got to enter into some of the peace of a snowfall. Entreaties to stay off the roads and canceled flights and other transport can be a gift.

1.

2. Syrian refugee family finds sweeter life at Mount Airy diner

Keep reading this post . . .

Greece, Sliding

by Andrew Stuttaford

Here we go again.

The Wall Street Journal:

The International Monetary Fund warned on Tuesday that Greece once again risks a eurozone exit amid stalled bailout talks, sending the clearest signal yet the emergency lender isn’t likely to soon rejoin Europe’s failed efforts to fix the debt-weary nation.

Fund officials said Athens and its European creditors must agree to much deeper economic overhauls and substantial debt relief before the fund considers contributing another cent.

Two fund documents made public Tuesday reveal deep-seated skepticism that Europe’s latest financing program can fix the broken economy. Both the IMF’s annual review of Greece’s economy and a scathing assessment of its own second bailout to the deeply ailing economy underscore a third fund package is unlikely soon.

Not to worry, Greece is on the case, looking for a messenger or two to shoot, including, it seems, the country’s first independent head of statistics.

The Wall Street Journal:

The statistician, Andreas Georgiou, moved from the U.S. to become Greece’s first independent head of statistics in 2010. The European Union certified he subsequently fixed the omissions and reported the deficit in full. On the contrary, Mr. Georgiou’s foes claim, he manipulated the deficit figures as part of a plot to force severe austerity on Greece under the 2010 bailout “Memorandum” imposed by the EU and International Monetary Fund.

Four times in four years, Greek investigators or prosecutors have concluded that Mr. Georgiou merely applied EU accounting rules and committed no crime. Senior politicians and judges have nonetheless kept the accusations alive. He could face five trials, and life imprisonment in one case.

Throughout Greece’s debt crisis—history’s biggest sovereign bailout and the deepest developed-country depression since the 1930s—much of the governing class has denied responsibility and instead fallen back on conspiracy theories.

Meanwhile this graph shows what’s happening to the price of two-year Greek government bonds

And then there’s Italy….

Bungling Brexit

by Andrew Stuttaford

There have been few more consistent Brexiteers than Christopher Booker. The Great Deception, the book he co-wrote with EU Referendum’s Richard North, first published in 2005 and later updated (you can download it here) was a relatively rare British attempt to get to grips with the true nature of the EU  (‘ever closer union’ means what it says) and the often—how shall I put this—oblique manner in which its agenda has been advanced. It remains an indispensable read.

In the Sunday Telegraph last weekend, Booker described how, in the course of writing about the EU for 25 years, he has “learnt (among much else) three things” (my emphasis added):

The first, which came quite early as I began to understand the real nature of the supranational system of government we now lived under, was that we should one day have to leave it.

A second, as I came to appreciate just how enmeshed we were becoming with that system of government, was that extricating ourselves from it would be far more fiendishly complicated than most people realised.

The third, as I listened and talked to politicians, was how astonishingly little they seemed really to know about how it worked. Having outsourced ever more of our lawmaking and policy to a higher power, it was as if our political class had switched off from ever really trying to understand it.

And that, naturally enough, brings him to British Prime Minister Theresa May’s decision to opt for a ‘hard Brexit’, the allegedly clean break that will leave a very large mess behind it.

Booker:

On leaving the EU [the UK] becomes what [the EU]  terms a “third country”, faced with all the labyrinth of technical barriers to trade behind which the EU has shut itself off from the outside world. Last week I read a series of expert papers explaining some of the mindbending regulatory hurdles we would then have to overcome in trying to maintain access to what is still by far our largest single overseas market.

Take, for instance, our chemicals and pharmaceutical industries, which currently account for a quarter of all our exports to the EU, which currently account for a quarter of all our £230 billion a year exports to the EU. By dropping out of the EU, these would lose all the “authorisations” which give them what Mrs May calls “frictionless” entry to its market, and the process of negotiating replacements for them would be so complex that it could take years.

Booker doubts that this could be resolved by simply ‘repatriating’ existing EU law back to the UK. I’d agree, for many reasons, not least the fact that that repatriation will be a one-off but EU regulation will continue to evolve in a manner that risks leaving British exporters running—and hurdling— to keep up.

Yes, of course, this could all theoretically be dealt with by a treaty or treaties, if those treaties are able to survive the EU’s tortuous ratification process, but how long might that take?

Booker:

[May] imagines that this colossal maze of technical problems can be sorted out in just two years, even though this would call on the EU to expend untold time and resources accommodating a country which wishes to leave it.

That could be too harsh. May does seem to be contemplating a longer transitional period (if she can get it), but that will be cold comfort to businesses wanting, no, needing to know where post-Brexit Britain will stand. 

Booker observes that these aspects of Britain’s divorce from the EU “could have been achieved infinitely more easily if Mrs May had not slammed the door on our continued membership of the EEA [the European Economic Area], which would guarantee us much the same “frictionless” access we enjoy now”.

That would be the ‘Norway option’ that you may have read about a  few  times in this very Corner, an option rejected by May for reasons so unclear that I cannot keep thinking the (doubtless unfair) thought that she has very little idea of what it actually is.

And then, Booker frets, there is May’s “terrifying” threat “that, if she is not given what she wants, she will simply “walk away”.”  He’s right to worry. May has said that “no deal for Britain is better than a bad deal for Britain”, an elegant but false dichotomy: “No deal” for Britain would be a “bad deal”, a very bad deal indeed. 

Krauthammer’s Take: On Travel Ban, ‘Let It Go, Escape from It, You’re Not Getting Anywhere’

by NR Staff

Charles Krauthammer believes that Trump is within his rights to restrict travel, but he pointed out that Trump should let the travel moratorium go and focus on vetting and the other aspects of his agenda:

I do believe that the president is completely within his rights in issuing an order that is lawful and legal. Under normal circumstances, I think he’d be vindicated by the Supreme Court. I think Judge Napolitano may be right, that there will be at least one liberal on the court who will support him because I think it is pretty obvious, and it would embarrassing if the liberals on the court all unanimously opposed it. But as a pure political, tactical issue, I do think that you can let this thing go. There are two parts. There’s the vetting, and there’s the moratorium. The moratorium is incidental and temporary. You let that go, you go back to the district court, it’s dragged out — the moratorium would expire anyway in 90 days — you do the vetting, you get Giuliani or somebody else to put together a program and have it done within the 90 days, and then you move on.

I think it is a matter of personal pride. The guy’s a winner. He doesn’t like losing, but I think it’s a losing proposition to run after this, unless you think you can win with the supremes. You may or may not, if you want too roll the dice, but otherwise, let it go, escape from it, you’re not getting anywhere on this, you’ve got a huge agenda, you’re on a roll — don’t mess it up.

Why The Ninth Circuit Ruled Against Trump’s Refugee Order

by Dan McLaughlin

The Ninth Circuit has delivered its decision in State of Washington v. Trump, rejecting the Trump Administration’s appeal from the temporary restraining order preventing the Administration from enforcing President Trump’s executive order on refugees. The decision by a 3-judge panel (appointees of Presidents Carter, George W. Bush, and Obama) is unanimous and delivered “Per Curiam”, meaning no one of the three judges signed the opinion (a practice that tends to be more common when a court is writing in haste). Let’s walk through what the court did, and why. Some of this is inside baseball for lawyers, but even the procedural decisions matter to citizens who care about Trump’s orders. The takeaway is that the court didn’t actually resolve a lot of the hotly contested issues here, and cooler heads in the Administration should probably try revising the executive order and presenting more thorough evidence in its favor before taking the case up to the Supreme Court (a delay that may allow the Court to get up to nine Justices in the interim). At no point did the court decide that Trump violated the Constitution – but it telegraphed its view that there was enough to such claims to leave the lower court’s order in place, barring enforcement of the executive order, until those claims could be resolved in full. 

First, the court ruled that the government could appeal this order immediately, a victory for the Administration. Temporary restraining orders are normally just that – temporary – so usually they can’t be appealed until the lower court holds a full hearing to enter an injunction. Sometimes, in an emergency, they’re entered without even hearing from one side. But Judge Robart heard arguments from both sides and entered an indefinite injunction, so the appeals court felt that his order was ready to be appealed even though the parties hadn’t offered much evidence yet – “We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.”

Second, the court concluded that the States of Washington and Minnesota had legal standing under Article III of the Constitution to bring a court case to challenge the order. Federal courts require that a party bringing a lawsuit have some personal stake in it; in general, you cannot literally make a federal case out of something that doesn’t affect you directly. The court wisely avoided ruling on the states’ flimsy claim to “parens patriae” standing to represent every citizen of their state and then extend that to non-resident aliens, a theory foreclosed by Supreme Court precedent dating back to 1923. It focused more narrowly on the states’ claim to represent state universities that were affected when current or planned faculty or students from the seven countries covered by the 90-day suspension in Section 3(c) of the order. That’s a reasonable enough ruling, as far as it goes, but it would normally not give them standing to challenge other aspects of the executive order in which they have no concrete interest, such as the 120-day suspension of the refugee program (Section 5(a)), the indefinite ban on Syrian refugees (Section 5(c)), or the provisions of the order requiring future consideration of religious-minority status for refugees claiming religious persecution (Sections 5(b) and 5(e)). Given that the appellate court upheld the injunction against all of those provisions, it had a duty under the Supreme Court’s decision in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), to decide whether each plaintiff has standing to challenge each government action. It did not.

The Ninth Circuit panel also concluded, without citing any support whatsoever, that the states had standing to challenge “religious discrimination” under the Establishment Clause of the First Amendment. More on this below, but it is worth noting that the court did not actually end up concluding that the Trump Administration had engaged in religious discrimination; it just found that it didn’t have enough time and evidence to justify reversing the district judge on that issue. A more considered appeal on this question would probably involve a more serious attempt to grapple with the extreme novelty of the argument that the Establishment Clause limits the scope of federal immigration law.

Third, the court rejected an unreasonably broad argument made by the Administration: that Executive Branch determinations in the immigration area are beyond the review of courts. This was not a defensible argument, and the fact that it was advanced at all seems to be a sign of the chaotic lawyering of this case, brought while the Administration still had neither an Attorney General nor a Solicitor General appointed by President Trump. Let that be a lesson about picking high-stakes court battles without bothering to get your legal team in place first.

However, maybe the most important dog that didn’t bark here is presidential power. The court’s opinion did not conclude, or even suggest, that Trump lacked the power as president to issue the order. It didn’t resolve that issue in Trump’s favor; it was just assumed it, since it ruled against him on other ground.

Fourth, the court found that the government was not likely to win its case – the standard on a preliminary injunction, before all the evidence has been heard – on whether the executive order gave adequate due process protections to “lawful permanent residents and non-immigrant visaholders” who were barred from the country, again ignoring the fact that the Administration has stopped enforcing the order against lawful permanent residents and the fact that the states were also looking to enforce the injunction on behalf of refugees and others who had yet to be granted visas. The Supreme Court, in its 2015 decision in Kerry v. Din, left open the question of whether there is any due process right for foreign nationals to challenge the denial of a visa; Justices Scalia, Thomas and Chief Justice Roberts thought not, and in that case, Justices Kennedy and Alito didn’t take a position on the issue because they found that adequate due process had been provided in that case. But the Ninth Circuit never addressed why people without an existing visa might have due process rights.

The court did, however, rely on the Court’s 2001 decision in Zadvydas v. Davis, a 5-4 opinion written by Justice Breyer, which held that people charged with being illegally in the U.S. have a right to due process to challenge that before being deported. But nothing in Zadvydas would extend rights to people denied entry, and the Ninth Circuit simply concluded that if its order was too broad, it was up to the White House to write a narrower one – an opportunity that I would seize upon swiftly, if I was advising President Trump:

Even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order….The political branches are far better equipped to make appropriate distinctions.

That said, it’s notable that when portions of Obamacare were found to be unlawful, the Supreme Court bent over backwards to let the remaining portions stand. Trump gets no such treatment.

Fifth, and most importantly, the court upheld the TRO against Trump’s immigration order on grounds of religious discrimination against Muslims, even though the order is neutral on its face, without really deciding the issue:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims…The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

Notably, not one of the cases the court cited involved a federal court in evaluating “evidence of purpose” of religious discrimination by a co-equal branch of the federal government, rather than a state or local government – much less evidence derived from statements on the campaign trail. If Trump’s “Muslim ban” statements in December 2015 have permanently reduced powers that the Executive Branch would otherwise have had to exclude aliens from the country, the court should say that openly. Moreover, the court made no effort to evaluate the Administration’s assessments that its orders were tailored to a terrorist threat (whatever you may think of those assessments), and it nowhere discussed whether the federal government may legitimately weigh the fact of being a religious minority (in the case of the countries discussed, Christians) is something the government may consider in determining whether a person or group is subject to religious persecution.

Sixth and last, the court rejected the government’s argument that a refugee ban was urgent, given the lack of any evidence submitted thus far in the case to support urgency. That’s a bit of a Catch-22, since any evidence of imminent national security threats is likely classified and not properly offered to judges and litigants without security clearance, but the Administration should reconsider whether it has evidence of a more broad-based nature to support the breadth of its travel bans. Much of the opinion’s coda deals with how early it is in the case, and how little opportunity any judge has had to give real review to any evidence.

If the Trump Administration should learn one lesson from this debacle, it’s that courts won’t accept bluster in place of evidence from an administration with which the judges are disinclined to sympathize. The court reached some bad rulings, but as the saying goes, hard cases make bad law. The Administration should try to avoid letting its cases be so hard when they don’t need to be. But it should also be prepared for the fact that the courts are not likely to give it a fair shake.

Who Can Doubt Gorsuch’s Independence Now?

by Rich Lowry

For the politics of his nomination, it probably helps that Gorsuch has let it be known that he was disheartened by Trump’s shots at Judge Robart and the 9th circuit. It makes the point that he’s his own man and a supporter of the independence of the judiciary (although I don’t buy the notion that Trump popping off is a threat to separation of powers). The risk here is that Gorsuch would so anger Trump that he might consider dumping him, a very unlikely scenario that would obviously represent a debacle. Trump has apparently chosen to channel his anger against Sen. Blumenthal for revealing Gorsuch’s comments and there is now a jesutical debate over whether Gorsuch addressed Trump’s attacks directly or made a general observation (Ben Sasse has reported a similar conversation with Gorsuch). It’s possible that both sides could be right if the discussions went something like this–Q: Judge Gorsuch, what do you think of President Trump’s attack on the judiciary? A: Well, I will say as a general matter that any attack on my fellow judges is disheartening to me. Overall, it’s hard to believe that Gorsuch isn’t making a good impression on the Hill–every time you see video of him in a hallway, he’s cheerfully greeting puppies and small children.