Politics & Policy

The Obamacare Ruling

Robert VerBruggen is exactly right, below, about that Obamacare ruling in a federal court in Texas on Friday.

I’ve written about the case around here before, and this ruling hasn’t changed my view of it. You won’t find many people more opposed to Obamacare than I am, but the logic of the plaintiff states here (and all the more so the logic of the administration’s brief in the case) just doesn’t hold together, and Friday’s ruling only made that more clear.

Chief Justice Roberts’s 2012 ruling that the individual mandate is constitutionally sustainable as a tax was silly to begin with, but it is the ruling precedent. The idea that zeroing out the tax (which Congress did last year) thereby renders the now inoperative mandate unconstitutional is dubious but trivial—as the provision is inoperative anyway. But the notion that this inoperative mandate is actually necessary for the functioning of the rest of the system created by the statute—a notion that rests on applying the intent of the 2010 Congress over that of the 2017 Congress when considering the situation created by the 2017 Congress’s act of legislation—well that doesn’t even merit being called silly. It’s ridiculous.

If the ruling gets backed up with an actual enforceable injunction, it will surely be appealed. And it should, and probably will, get overturned on appeal.

Obamacare was terrible legislation that yielded terrible administration. But the answer to it can’t be terrible jurisprudence.

Health Care

Don’t Cheer (or Panic) over That Obamacare Ruling

A judge has ruled Obamacare unconstitutional. This basically doesn’t mean anything.

For one thing, there’s no injunction stopping the law in the short term. For another, the suit has little chance of surviving the appeals process because the argument behind it is weak. Even reliable Obamacare opponents in the conservative legal movement have generally distanced themselves from it.

Basically, when Republicans repealed the individual mandate in the tax-reform bill, they didn’t quite repeal it; they just reduced the penalty to $0. (This was all they could do under certain procedural rules without opening the door to a filibuster.) Since the Supreme Court upheld the mandate in 2012 on the grounds that it was a tax, the lawsuit argues, this makes the mandate unconstitutional: A $0 penalty can’t be a tax. And since Congress also left “findings” in Obamacare saying the mandate is important to the operation of the rest of the law, the suit claims the mandate is not “severable” and the entire law should be struck down.

There are huge problems here. For starters there’s the question of whether anyone even has standing to challenge a provision that has deliberately been made completely unenforceable. On top of that, no one on this entire planet, in the Congresses that wrote the law or not, actually believes that a mandate enforced by a $0 penalty is so important that the rest of the law can’t function without it. If Congress believed the mandate was important, it wouldn’t have eliminated the penalty giving it effect, and Republican politicians including the president wouldn’t have run around claiming they’d “repealed” it.

I don’t see the higher courts destroying a huge piece of legislation on such reasoning, even if a district judge bought into it yesterday. For a more granular and sympathetic analysis of the ruling, though, I encourage you to check out this thread from Josh Blackman.

Culture

Twelve Things that Caught My Eye Today (Dec. 14, 2018)

1. I’m heartsick for my friends at The Weekly Standard. There are such talents there – and extraordinarily good people, too. Whisper a prayer to God that good things are ahead for them.

2.

3.

4.

Continue reading “Twelve Things that Caught My Eye Today (Dec. 14, 2018)”

Law & the Courts

Hush-Money Payments: Fix the Law

I’ve been thinking a bit about the pieces we’ve run by Rich Lowry, Bradley Smith, and David French on the question of whether hush-money payments intended to protect a political candidate from embarrassment are properly considered campaign-related or “personal.” I’m on Team Lowry/Smith on the question of how best to make sense of the law on the books, but I think it’s fair to say that the statute is vague and confusing when applied to this situation. Congress should have fixed the law’s contradictions back when John Edwards first drew attention to them, and should still fix them today.

The problem appears to be that there are only two categories. If an expense is “personal” — “to fulfill any commitment, obligation, or expense of a person that would exist irrespective” of the campaign — you don’t need to report it to the government, but you are prohibited from using campaign funds to pay for it. If it’s campaign-related — “for the purpose of influencing any election for Federal office” — you have to use reported campaign funds. Not all expenses fit all that well into these two boxes.

The language about purchases fulfilling a “commitment, obligation, or expense” that exists separately from the campaign is especially tricky, because the law doesn’t say whether this has to be the sole reason, the primary reason, or just a reason for the purchase. Trump may not have made the payments if he hadn’t been running for president, but certainly the payments at least in part helped shield his family and him personally from embarrassment, things he’d value apart from the campaign.

Smith writes that the rest of the statute helps us interpret it. For one thing, if this is a campaign expense, that would mean a candidate could collect campaign donations and use them to pay off porn stars, a result Congress likely did not intend. The statute also notes entire categories of purchases that are considered personal, even though in reality they are sometimes made mostly for the purpose of a campaign. This isn’t presented as a special exception for these purchases from the usual “irrespective” rule; the statute specifically says the rule “includ[es]” items such as clothing — implying, plausibly, that when a purchase serves non-campaign purposes to a significant degree, it’s considered to fulfill the candidate’s separate commitments and obligations, even if the candidate is caught on video saying he made it mainly to help the campaign. This stops candidates from raiding their campaign treasuries to buy lots of nice clothes “for the speech tonight.” It also means they can buy nice clothes for the primary or even sole purpose of looking good on the stump without reporting the purchase as a campaign expenditure.

Smith makes a decent case that the best way to interpret the statute as a whole is to put hush-money payments on the personal side too; and in general when a law is ambiguous you interpret it in favor of the accused. But any textualist has to get a funny feeling at the idea of payments that are “made ‘for the purpose of influencing the election,’ yet . . . are not ‘expenditures’ under the Federal Election Campaign Act” (Smith’s words) when that’s literally the definition of “expenditures” in the Federal Election Campaign Act. This means we must change the law to handle future cases.

I think we could go two different routes. One is to just make it official that arranging to keep personal matters quiet is a personal expense even if done to advance the campaign. (Call it the John Edwards/Donald Trump SHUSH Act of 2019. Tweet me your best idea for what SHUSH stands for!) The other would be to create a third category, comprising significant expenses that owe their existence to the campaign but also have a large enough (or dubious enough) personal component that we do not want candidates using donated campaign funds for them. For this category we’d require reporting but also forbid the use of campaign funds.

If there are some things we want candidates to pay for themselves but also report, let’s say so up front.

Culture

A Toast to the Standard

Today brought the sad news that, as has been feared and rumored for months, The Weekly Standard is closing. The death of that other conservative magazine is a tragedy, pure and simple. And it’s compounded by the chilling, spiteful, and pernicious manner of its execution. John Podhoretz, who was among the Standard’s founders, recounts the details here, and what I have heard comports with his report.

The news is tragic not so much for the loss of a venue for conservative political opinion writing, or the loss of an outlet for clear-eyed political journalism. The Standard was both of those things, and its demise would have been bad news even if they were all it did. But it is tragic news because the magazine did so much more.

It was, simply put, a writer’s magazine, defined by the distinct intelligences of the extraordinary people in its orbit. From its earliest days, in the mid-1990s, it was home to a strange and wonderful blend of gloriously middlebrow cultural criticism, unabashed idealism about America, seasoned realism about politics, and a sharp yet always somehow sympathetic disdain for the ridiculous humanity of the men and women who populate the upper echelons of our political, cultural, professional and other elite institutions.

This blend of attitudes was practically embodied in the permanent sly half-smile of its longtime editor in chief, Bill Kristol. The Standard always had something of Bill’s personality—steeped in political philosophy and ready to quote the great romantic poets on a dime but deeply immersed in the minutia of the political moment, open to crazy ideas, always speaking precisely half in jest, and somehow friends with practically everyone.

But though it was broadly overarched by something of this personality, the Standard’s great strength was that it mixed the strong, distinct voices of its stable of in-house writers—that it brought in great people and let them be great. From the elitist anti-elitism of David Brooks’s brilliant cultural writing in its early days through the sharp young-fogey heterodoxy of Matt Continetti’s political writing in its middle age to the extraordinary wealth of analytic, literary, and reporting talent of its last several years (Mark Hemingway, John McCormack, Michael Warren, Alice Lloyd, and on and on), the Standard has been an incredible incubator of great writing.

But it has been all the more incredible for the voices that have defined it most throughout that span. Christopher Caldwell has been an unmatched prophet of our post-cold-war woes. John Podhoretz is the answer you should offer to anyone who wonders just exactly what a critic does that’s worth a damn. Matt Labash knows that real comedy is deeper than tragedy. Jon Last can always spot the permanent in the ephemeral. Andy Ferguson is what would have happened if Mark Twain had time-traveled to the 21st century and become the nicest guy you know.

I could go on. I should, really, because there are lots of other extraordinary writers in that stable. The Standard was always a good venue for outside writers too. They were great spotters of talent (though they let me on to their pages pretty frequently, so their judgment wasn’t perfect). But it was the in-house crew that really set the tone and made it something special.

It’s not a coincidence that a lot of the best and most enduring of their writing was in the back of the magazine, in that fantastic books and culture section. Long, discursive essays on old books and new ideas, on faith and philosophy, on culture and technology. Like NR, and like every great magazine, the Standard understood that politics is downstream of culture—for good and for bad. And that back of the book has grown even deeper than ever lately, which makes it even harder to see the Standard go.

Look, these are friends of mine. And they’re awfully decent people who have been treated far less well than they deserve. So I’m not objective. But I challenge you to immerse yourself in the archives of The Weekly Standard and come out objective—or anything other than sad to see it end and angry that it had to.

“A magazine, when properly conducted, is the nursery of genius,” Tom Paine said two and a half centuries ago. And the Standard offered proof. This grateful reader gives his thanks.

Law & the Courts

Should the Law be Clear about What’s Illegal?

David has a typically robust piece up on the home-page taking the view that the law probably isn’t on Trump’s side in the Cohen case. I urge you to read it, but I want to take issue with one point that gets close to the crux of the matter. Here is the passage:

Campaign-finance law is constructed from the ground-up to require candidate transparency and guard against corruption. Thus, it is purposefully very hard for candidates to find a way to legally and quietly use substantial sums of money to cover up dirty deeds. In his essay, Smith argues, “Indeed, it is quite probable that many of those now baying for Trump’s scalp for illegal campaign contributions would be leading a charge to prosecute Trump for illegal ‘personal use’ of campaign funds had he made the payments from his campaign treasury.”

That’s likely correct — and evidence that campaign-finance law is working as intended. In other words, if you’re a campaign-finance lawyer, and a candidate asks your advice on how to buy the silence of a porn star and hide that payment entirely from the American people, your best response should be, “Have you considered not running for office?”

But it can’t be that a law that is so ambiguous that gets you coming and going is a good law.

The lawyer’s answer in David’s hypothetical is the right moral answer and would be all that’s necessary if only upstanding people ran for office. But if we are going to ruin people’s lives and potentially take away their liberty on the basis of the law, we should make sure it is written in such a way that we can reliably answer in advance whether something is legal or not. If we want to make it illegal for anyone running for office to enter into a NDA with a mistress, let’s pass that law, or if we want pay-offs to mistresses to be considered campaign expenses (which is the logic of the government’s position), let’s write that down, too. But the SDNY has adopted an adventurously aggressive interpretation of an ambiguous area of the law, probably in part because of who the target is and how unpopular he is. This doesn’t strike me as a great victory for the rule of law.

Law & the Courts

More on Whether Paying Off a Mistress is a Campaign or Personal Expense 

The fact pattern in the Trump and Edwards cases is different, but the basic principle is the same. I found this brief in the Edwards case from CREW on how the government’s interpretation of the law would perversely and against the clear intent of the law transform personal expenses into campaign expenses very helpful.

Also, it’s pretty clear that the FEC views “the irrespective of the campaign” standard as a bright-line test rather a subjective question (i.e., the expense was 55 percent campaign-related and 45 percent personal, therefore it should be considered  campaign expense). From the Federal Register:

 

Politics & Policy

General Flynn Is Not a Victim of the FBI

Former National Security Adviser Michael Flynn arrives for a plea hearing at U.S. District Court regarding his testimony to the FBI about contacts with Russia’s ambassador to the United States, in Washington, D.C., December 1, 2017. (Jonathan Ernst/Reuters)

In recent months, a certain narrative has taken hold in the GOP — that former Trump national-security adviser Michael Flynn is a victim of FBI perfidy. The real outrage isn’t that he lied to the FBI — something he’s confessed to, by the way — but rather the way in which the FBI approached him and the manner of its interrogation. This claim gained additional currency when Flynn filed his sentencing memorandum and pointedly noted that the FBI agents who interviewed him didn’t warn that lying to the FBI was a crime.

General Flynn, one of the premiere intelligence officers of his generation, didn’t need that warning. Moreover, don’t think for a moment that he was somehow tricked into lying. Instead, remember, that he regurgitated to the FBI lies that he told others. Today, the special counsel’s office filed its reply to Flynn’s memorandum and set the record straight:

The defendant made his decision to lie about his communications with the Russian ambassador two weeks before his interview with the FBI. On January 12, 2017, The Washington Post published a story asserting that the defendant had spoken with the Russian ambassador on December 29, 2016, the day the United States announced sanctions and other measures against Russia in response to that government’s actions intended to interfere with the 2016 election (collectively, “sanctions”). See David Ignatius, Why did Obama Dawdle on Russia’s hacking?, WASH. POST (Jan. 12, 2017). The Post story asked whether the defendant had undercut the sanctions and whether his actions violated the Logan Act. The defendant asked a subordinate member of the Presidential Transition Team to contact the Post on the morning of January 13 and convey false information about the defendant’s communications with the Russian ambassador. The “UPDATE” included at the end of the Post story later reported that two members of the Presidential Transition Team stated that the defendant “didn’t cover” sanctions in his conversation with the Russian ambassador. Id.

Over the next two weeks, the defendant repeated the same false statements to multiple members of the Presidential Transition Team, including Vice President-Elect Michael Pence, incoming White House Chief of Staff Reince Priebus, and incoming White House Press Secretary Sean Spicer. Those officials then repeated the defendant’s false statements on national television.

Moreover, this statement from the special counsel is self-evidently true:

A sitting National Security Advisor, former head of an intelligence agency, retired Lieutenant General, and 33-year veteran of the armed forces knows he should not lie to federal agents. He does not need to be warned it is a crime to lie to federal agents to know the importance of telling them the truth. The defendant undoubtedly was aware, in light of his “many years” working with the FBI, that lying to the FBI carries serious consequences. See Def. Sent Mem. at 8. He, unlike Van der Zwaan and Papadapoulous, was a senior national security official with extensive federal government experience, had led an intelligence agency, had worked with the FBI, and was steeped in the importance of accurate information to decision making in areas of national security.

The decline and fall of General Flynn is an American tragedy. He was, in fact, a “master intelligence officer.” The men and women who served in Iraq and Afghanistan owe him a debt of gratitude. He made the American military a more effective and lethal war-fighting machine. Nothing he did in the Trump campaign or the Trump administration can change the fact that he served his country with excellence for a very long time.

And now, by cooperating with the Mueller investigation, he’s doing the right thing again. He deserves immense credit for his military service. He deserves credit for accepting the responsibility for his crime. He is not, however, a victim of federal law enforcement. He is a man who did wrong and is now paying his debt to society. That’s not exploitation. It’s justice.

Politics & Policy

Mann Case Update

The Supreme Court building in Washington, D.C., March 16, 2016. (Jim Bourg/REUTERS)

In 2016, two years ago, nearly to the day, a three-judge panel of the District of Columbia Court of Appeals, itself having heard two years prior (in November, 2014) an appeal of an initial ruling in the important First Amendment case, National Review, Inc. v. Michael E. Mann, upheld that prior ruling. National Review appealed. Yesterday, the judicial fetish with two-year decision-making clearly in effect, the court rendered a verdict. Two in fact:

The first:

Order Granting appellants’ petitions for rehearing to the extent this court’s opinion issued on December 22, 2016, 150 A.3d 1213, is being amended to add a new footnote 39 and revise former footnote 45 (now 46). The amended opinion is attached to this order.

The second:

Order Denying appellant’s petitions for rehearing en banc without prejudice to the filing of a new petition for rehearing en banc addressed to the amended opinion.

What does this mean? In one sense, it means it took the court — under an allegedly expedited judicial process known as anti-SLAPP — two years to add one footnote and change another to an already concocted decision.

What happened? NR’s 2016 appeal petitioned the court for a panel rehearing (i.e., reconsideration by the same three judges who heard the 2014 appeal). That petition was granted, and the three judges then:

  1. withdrew the previous opinion, and
  2. issued a new opinion (yesterday’s) with those two new footnotes.

What essentially happened? The court by default denied NR’s petition for an en banc rehearing before all the judges on the court. But: The court allowed that NR and its co-defendants have a new opportunity to file another such rehearing petition now that there is a newly amended (footnotes!) opinion.

Which means? If NR et al file the new petition for rehearing en banc, it will finally give the full court a chance to weigh in on the case (heard so far by the trial court and then a three-judge panel).

Are you interested in seeing the list of every jot and tittle of this case as catalogued in the D.C. Court’s system? Look here and then laugh while you utter “Justice delayed is justice denied.”

Do stay tuned as shortly we will inform NR’s readers of our disposition as to proceeding with the Case That Never Ended.

And do refresh yourself on the case by reading our 2016 editorial “The D.C. Court of Appeals Undermines the First Amendment.” Of interest: It has no new footnotes!

Law & the Courts

Michael Cohen’s Conviction: A Very Brief Summary of Events

In response to Payoffs to Mistresses as In-Kind Contributions? It’s an Open Question

I thank Andy for the clarification below.  

So, as things stand:   

  1. Cohen has pleaded guilty to a crime. 
  2. Cohen has been convicted of that crime. 
  3. Cohen is going to prison for that crime. 
  4. We are not sure this is a crime. 

This is why I’m a libertarian.  

Politics & Policy

Elizabeth Warren Says She’s Not a Person of Color, but She Is

Senator Warren today declared that she is not “a person of color,” in spite of her Native American ancestry, which is detectable in a laboratory setting.   

As I have written before, this is not quite accurate. She is a person of color: Pantone 11-0602 TPX. 

Culture

Friday Links

One of the Biggest Meteor Showers of the Year Returns This Week — Here’s How to See It.
The real history of ‘Rudolph the Red-Nosed Reindeer’ — it all started with a Montgomery Ward marketing campaign in 1939.
ICYMI, Wednesday’s links are here, and include lots of ugly Christmas sweaters (plus instructions for making your own), how McDonald’s got started, why woodpeckers don’t get concussions, how your apps are tracking you (and who they’re sharing the info with), and advice from c. 1200 on how to survive the winter (don’t forget to lay off the purging and blood-letting, and keep your hands and feet covered in wolf grease).
Law & the Courts

Payoffs to Mistresses as In-Kind Contributions? It’s an Open Question

Michael Cohen arrives for his sentencing at the United States Court house in the Manhattan, N.Y., December 12, 2018. (Jeenah Moon/Reuters)

In response to Are Payoffs to Mistresses Campaign Expenses?

Kevin, if I can butt into your exchange with Rich for a moment (since you raise a question that he and I batted around in The McCarthy Report podcast this week), the question of whether the Trump/Cohen transactions are campaign expenditures as a matter of law has not been addressed, much less settled.

The Southern District of New York (SDNY) lodged campaign-finance charges against Cohen. He elected to plead guilty without contesting them. This, I believe, was more a strategic calculation than an assessment of the legal adequacy of the charges: The campaign-finance counts had a negligible effect on the sentencing-guidelines calculation (which was driven by the more serious tax- and bank-fraud charges); and Cohen’s defense team perceived that the SDNY is trying to make a case on President Trump, so pleading guilty to two extra felonies paradoxically improved his chances for sentencing leniency.

The strategy worked. Though his sentencing guidelines called for 51 to 61 months’ imprisonment and he was not a full-fledged cooperator, the SDNY nevertheless agreed to a nine-to-19-month shave off his guideline range (i.e., about 42 months). The SDNY said this was because Cohen cooperated with the Mueller probe; I think Cohen’s rolling over on the campaign-finance allegations made the SDNY more amenable to leniency. In agreeing to the reduction, the SDNY was well aware that, with such a signal sent, it would be routine for the court to go below the reduction suggested by prosecutors. Judge William H. Pauley did just that, imposing a sentence of just 36 months. (To repeat my pet peeve on this point, I believe President Trump’s highly inappropriate agitation for Cohen to be given a severe sentence probably influenced the judge to reduce the sentence, in order to show independence.)

Because Cohen never challenged the legal sufficiency of the charge, Judge Pauley never ruled on it. To my mind, it would have been preferable if Pauley had directed the parties to brief the issue. I do not believe a judge should ever take a plea if there is a colorable legal question about whether what is charged is actually a crime. To be fair, though, the question of whether a third-party payment that is not a direct campaign expense constitutes an in-kind contribution is arguably what we call a “mixed question of law and fact” on which even experts have differed. In the John Edwards case, to take the best example, the FEC believed similar transactions were not in-kind contributions; the Justice Department disagreed and indicted Edwards on them; the trial judge allowed the case to go to the jury (implicitly a finding that a rational juror could convict); the jury acquitted on some counts and hung on others; and then the Justice Department decided to drop the case rather than retry it. The question is murky.

In any event, all Judge Pauley did in Cohen’s case was accept guilty plea. Without ruling on the matter, he assumed that the charge was legally adequate. In a guilty plea, the defendant typically waives his right to challenge legal and factual issues on appeal. The most we can say, then, is that the matter is settled as to Cohen, but that’s because of the waiver, not because the judge made a ruling on the pertinent question.

Even if Judge Pauley had made a ruling, that would have been binding only in Cohen’s case. There is a doctrine of law called “collateral estoppel,” which is akin to double-jeopardy, but it applies to issues rather than charges. What it holds is that a defendant may not raise in a subsequent prosecution an issue that has been settled in an earlier one. But it only applies if the defendant was in the earlier prosecution and had a full and fair opportunity to litigate the relevant issue. Trump was not a defendant in Cohen’s case, and he has not had an opportunity to litigate the question whether these transactions are in-kind contributions.

The bottom line is that the issue is not settled as to President Trump. The fact that Cohen pled guilty to two ostensible felonies does not establish that they actually are felonies (except as to Cohen, because he has forfeited the right to contest that point).

Immigration

Deporting Vietnamese Criminals

President Donald Trump in the Oval Office at the White House in Washington, D.C., December 11, 2018 (Jonathan Ernst/Reuters)

In response to Vietnam War Refugees and Deportation

Jonah was right to be disturbed by the headline of an Atlantic piece this week: “Trump Moves to Deport Vietnam War Refugees.” But his instinct that he “must be missing something” was also right.

The tendentious Atlantic headline obscures the real issue: whether we can deport convicted criminals and illegal aliens with Vietnamese citizenship (i.e., not naturalized citizens) who arrived here before 1995, which is when we normalized relations with the Hanoi government. (Dara Lind at Vox does a good job of explaining the issue.) More than 1 million Vietnamese have moved here since the Communist takeover of South Vietnam in 1975, about half of them before 1995.

In 2008, Vietnam agreed to accept deportees who arrived in the U.S. after 1995. (I’ve never understood why we waited 13 years to reach such an agreement instead of insisting on it as a precondition of establishing diplomatic ties.) That agreement doesn’t exempt pre-1995 arrivals from immigration laws, but Vietnam agreed to take back only those who moved here after that date. So there are 5,000 or more Vietnamese who have been ordered deported, mainly because of criminal convictions, but whom Vietnam will not take back.

Among them are some genuinely bad hombres. But since there was no prospect of repatriating them in any reasonable period of time, the Supreme Court requires that they be released back onto America’s streets.

This includes people such as Tam Minh Le, who arrived here illegally in 1990 and was jailed for shooting a man in the head in 1993. Since he could not be deported, he was released on parole in 2005, after which he slit the throats of two fellow gang members, for which he was sentenced to death in 2016.

Another example is Binh Thai Luc, who immigrated with his family in 1989. He was ordered deported after a 1998 conviction for armed robbery, but since Vietnam wouldn’t take him back, he had to be released. That proved unfortunate for five members of the Lei family of San Francisco, whom he murdered in a botched burglary in 2012.

What the administration has done is reject prior administrations’ interpretation of the 2008 agreement as exempting pre-1995 arrivals from deportation. Whether they actually get deported is up to Vietnam, since continued refusal to take them back means they would continue to be able to live in the U.S.

But the administration’s action might be designed to set the stage for visa sanctions against Vietnam unless it agrees to renegotiate the 2008 agreement, which is up for renewal next month, and accept pre-1995 deportees. Those sanctions are required by 8 USC 1253(d), under which issuance of visas is to be suspended in any country that won’t take back its own citizens. (The visa types and visa applicants covered by any suspension are up to the secretary of state.)

The Bush and Obama administrations each exercised this power only once. President Trump, on the other hand, signaled in an executive order (see Sec. 12) issued just days after his inauguration, that he would wield it more frequently, and he has done so. The simple threat quickly reduced the number of “recalcitrant” countries, and several that did not fall into line have been sanctioned, four in September 2017 and two more this past July.

In order to elicit a response like Jonah’s, the authors of the Atlantic piece noted that some pre-1995 arrivals are the children of South Vietnamese soldiers or anti-Communist “minorities such as the children of the American-allied Montagnards, who are persecuted in Vietnam for both their ethnicity and Christian religion.” It’s likely that few, if any, of the convicted criminals slated for deportation are from these groups and, in any case, there are forms of relief from deportation available even to criminals who fear persecution, such as “withholding of removal” and protection under the Convention Against Torture.

Despite the Atlantic’s efforts to turn this into yet another “Trump is history’s greatest monster” story, the real issue is whether our government should pressure foreign countries to take their own citizens back when they violate our laws. This White House, unlike its predecessors, is answering in the affirmative.

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