Monthly Archives: February 2017

Senator Collins Misunderstands

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Senator Susan Collins (R, ME), in explaining her decision to vote against Betsy DeVos’ confirmation as Secretary of Education, said

She has, no doubt, done valuable work.  Her concentration on charter schools and vouchers, however, raises the question about whether or not she fully appreciates that the secretary of education’s primary focus must be on helping states and communities, parents, teachers, school board administrators, school board members, and administrators strengthen our public schools.

What a monumental lack of understanding of the primary focus of the DoEd.  The DoEd, to the extent the Federal government should be involved in non-secondary education at all, must be focused on aiding states and communities, parents, [and] teachers improve the quality of education available to the local jurisdictions’ children.  That will include, necessarily, public schools and their management, but it cannot—just as necessarily—be limited to public schools.

Full stop.

Judge James Robart’s TRO

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Some of you may have heard that Judge Robarts, of the Western District of Washington, has issued a Temporary Restraining Order in favor of Washington and Minnesota (which joined the case after its initial filing by Washington) blocking the Federal government from enforcing President Donald Trump’s Executive Order delaying entry into the US of immigrants from seven terrorist or terror-sponsoring nations in the Middle East.  The EO was intended to create a pause in the flow of people from that area into the US until our vetting procedures could be examined and improved as much as might be.

As Robart described in his order, a TRO must meet all of four criteria, and it’s on the plaintiffs (Washington and Minnesota) to prove that each of those criteria are met.  Those criteria are (Robart cited two sets of criteria; they’re functionally the same, per Robart; below is the more detailed description) [quotes omitted]:

(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and ( 4) that an injunction is in the public interest.

Robart then ruled that the plaintiffs had met these criteria:

The court finds that the States have satisfied these standards and that the court should issue a TRO. The States have satisfied the Winter test [the more detailed test described above] because they have shown that they are likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest.

So far, so good.  Then Robart provided his rationale for this finding.

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.

That’s it.  No substantiation, nor even claim, that the plaintiffs are likely to succeed on the merits, no substantiation, nor even claim, that balance of equities tips in favor of the plaintiffs, no substantiation, nor even claim, of public interest.  Only a claim that irreparable harm is likely absent a TRO—but even here, there’s no real substantiation, just a repeat of the States’ claims.

We’re simply supposed to accept the single, superficial claim of harm as by itself satisfying the other three criteria.  But what about that (I’ll come back to the claimed harm in a bit)?

Likely to succeed on the merits?  Based on what? Robart has failed to present any merits other than his repetition of plaintiffs’ claims.

Balance of equities tips in favor of the plaintiffs?  Suppose, arguendo, that the claimed harms are real.  There was no investigation into balance, no presentation in this TRO that the Federal government’s interest in the nation-wide public’s welfare, the nation’s security, is outweighed by this harm.

And that public interest: see above; Robart didn’t even look into that, or if he did, he chose to omit the outcome of that enquiry from his order.

Now about those harms the States are alleging and that Robart apparently simply accepted withut question.  The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.  In what way?  Robart declined to say.  Further, a 90- to 120-day delay in reentry into the US imparts no serious education harm, only a delay for those students involved.  This is an inconvenience, not a harm.  To the extent the delay impacts employment (unidentified, but lets assume of the delayed immigrants), that’s a matter between the employee and employer, and to the extent legal relief is appropriate here, that is a separate case.  Freedom to travel?  That’s what borders are: no non-citizen has freedom to travel across borders; noncitizens—even visa holders—must have the permission of the receiving nation prior to entering.  Furthermore, existing permission—those visas—can be suspended or revoked at the receiving nation’s discretion.  Family relations?  Sure, these will be interrupted, and that’s a serious inconvenience.  But it’s only an interruption, and it cannot outweigh the Federal government’s interest in the welfare of all of the public or its interest in the nation’s security.

The extension of these individual harms to the States is too far a reach.  The States by virtue of their roles as parens patriae of the residents living within their borders, indeed, but the people whose travel is being interrupted aren’t known to be residents.  Many of them may well have established residency, but there was no showing that all of them have or even a showing that a significant fraction of them have.  (From this, it’s even not clear that the States have standing to bring their suit—another matter unsubstantiated here.)

Clearly, these matters affect only a subset of the delayed travelers, to the extent they affect any—yet Robart’s order lets in, without delay, those unaffected, too; the TRO is not properly limited to those claimed to be harmed.

The States themselves are harmed by virtue of the damage…inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds?  This is an even bigger reach.  Any students affected by the EO are so few in number as to be a drop in the bucket compared to the schools’ populations.  Nor are the States’ governments’ or government facilities’ materially harmed—nor even trivially harmed—by the delayed entry of these travelers.  Robarts declined even to say how these delays impact public revenues.

This is a bad, wholly unsubstantiated TRO, and it should be dismissed out of hand.

Cowardice? Or Tyranny?

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Earlier in the week, Breitbart News Editor Milo Yiannopoulos was scheduled to speak at UC Berkeley, but the institution (I can’t call it a school) canceled his appearance two hours before its start because protestors enrolled in the institution protested, violently with fire and smoke bombs.

Security allegedly was present, but the violence and damage occurred anyway.  UC Berkeley issued a statement about its decision that said, in part,

We condemn in the strongest possible terms the violence and unlawful behavior that was on display, and deeply regret that those tactics will now overshadow the efforts to engage in legitimate and lawful protest against the performer’s presence and perspectives[.]

The institution’s management talked about condemnation of the violence, but it chose to do nothing about it, it chose instead to allow the violence contribute to the destruction of free speech within its facilities.

Notice another thing in that statement.  The institution’s managers regret that violence “overshadowing” other protests against free speech, but they don’t have a minim of regret for the protests against free speech.

Nor is free speech in the Berkeley institution helped by the timidity of the Berkeley College Republicans.

Pieter Sittler, a spokesman for the Berkeley College Republicans, said the club doesn’t support everything Yiannopoulos says but “he gives a voice to repressed conservative thought on American college campuses.”

There’s no need for the protective qualifier; it isn’t relevant to the matter at hand: whether a man will be allowed to speak aloud a contrary opinion in the institution.

The cowardice, or the tyranny, of the Left says the only speech that may be freely spoken is that which the Left will permit and no other.  The timidity of the others functionally condones this tyranny.  The overt actions of the institution’s managers, limited as it is to idle chit-chat, actively condones this tyranny.

The only question remaining concerns Yiannopoulis’ description of the event:

[T]he Left is absolutely terrified of free speech and will do literally anything to shut it down.

Are they such cowards?  Or do they really favor such tyranny?  Or is this the cowardice of tyranny?

The EO That Banned Muslim Entry into the US

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Or at least that’s what House and Senate Democrats, along with the NLMSM, claim President Donald Trump’s Executive Order does.  It’s certainly true that the EO suspends, for a time, entry from seven countries with predominantly Muslim populations: Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.  Wow, that’s a lot.  That’s 199,200,000 Muslims.

However.  There is some small bit of information that’s carefully ignored by those Democrats with their badly manufactured tears and by the NLMSM.  The EO doesn’t touch some other predominantly Muslim nations; their ability to come and go into the United States is deliberately left untouched.

Minor nations like Indonesia, Pakistan, India, Bangladesh, Nigeria, Turkey, Egypt, Algeria, Morocco, Saudi Arabia, Afghanistan, Ethiopia, Uzbekistan, The People’s Republic of China, Malaysia, Russia, Niger, Philippines.  And on and on.  Globally, there are roughly 1,700,000,000 Muslims.

That terrible order that’s targeted at the terrorist or terrorism-sponsoring seven that ex-President Barack Obama (D) himself designated as terrorist or terrorism-sponsoring affect a small minority of Muslims and it does that much solely as a side effect of the effort to keep out terrorists.

Security Holes

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Recall the hoo-raw over Apple’s refusal to help the FBI hack an iPhone used by the San Bernardino terrorists, the FBI’s claim that they couldn’t get into the iPhone without Apple’s help, and then the FBI’s successful penetration of the iPhone from hiring a third party to do hack it.  Recall further the FBI’s subsequent refusal to tell Apple about the security hole in Apple’s iPhone software (supposedly limited to the generation of cell phone used by the terrorists) that was exploited by the hack and the FBI’s associated refusal to tell Apple how the hack itself worked.

The FBI has been in court defending those refusals.

…the Justice Department argued that the information it withheld, if released, could be seized upon by “hostile entities” who could develop their own “countermeasures”….

This is curious logic, indeed.  The FBI is leaving the security hole in place on the assumption, apparently, that hackers can’t already identify the hole and exploit it—as that third party did so promptly after being hired by the FBI.  So, leave the hole unplugged; a countermeasure would just be found by hackers.

Never mind that any hack—all of them to date, against any software in any milieu, as well as any future hack—is a countermeasure against the software being penetrated.  There’s nothing static about any of this; software security and hacks are in a dynamic arms race.  It’s foolish to leave existing holes in place in the expectation that the arms race will stop.