Author Archives: eehines

A Correct EO

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In early March, President Donald Trump (R) wrote an Executive Order that rescinded the security clearances of the law firm Perkins Coie and its lawyers individually. The EO also barred Perkins Coie from access to a number of Federal buildings and instructed other Executive Branch agencies to exam contracts with Perkins Coie with a view to ending them.

Last week DC District Judge Beryl Howell ruled the EO unconstitutional. Among other things,

Howell wrote that the text of the executive order, and Trump’s statements about it, made clear that he targeted Perkins Coie because it represented clients he doesn’t like, and clients challenging some of his actions.
“That is unconstitutional retaliation and viewpoint discrimination, plain and simple,” wrote the judge, an appointee of former President Barack Obama.

She’s not far wrong in that, and this is a case where Trump’s rhetoric contaminated the legitimacy of his move. Perkins Coie made an argument in its suit, though, that is and should have been so considered wholly irrelevant.

It told the court it was at risk of losing its most lucrative clients, as they frequently work with the federal government, and many are major government contractors. In fact, the firm told the court, it did lose clients.

That confers no obligation on the government to grant or continue security clearances to Perkins Coie or any other enterprise. No business must be allowed to arrange its business model in such a way as to compel our government to grant it a security clearance.

The President of the United States is the final arbiter of security clearances, of what is classified, and of who has declassification authority.

From that, this: a better—and entirely constitutional—Executive Order would require all Departments and agencies in the Executive Branch, including the President and his White House, that have security clearance authorities to rescind all security clearances of personnel who leave their Departments or agencies on the day of their departure—even if those employees are transferring to another Department or agency. The new Department or agency, and any nongovernment entity who employs the departed person, if they want the person to have a security clearance, must do a de novo background investigation before granting a clearance, and the Department, agency, or outside entity must justify the level of clearance requested.

The EO should do this, as well: recast security clearances, extant or newly granted, held by nongovernment enterprises and their employees as for the duration of the particular contract with automatic rescission on the end of the contract. New contracts must have de novo background investigations of all enterprises and individual employees contemplated for work on the contract. If an existing contract is extended for a second time, those security clearances must be explicitly renewed via de novo background investigations.

Security clearances give access to our nation’s most important secrets, and no person and no entity has an intrinsic right to one. No person and no entity has any sort of Constitutional right to a security clearance. Neither does our government have any obligation to grant a security clearance, of any level, to any person or entity. This fundamental concept is one that is too often unconsidered in disputes over clearances.

There’s the Problem

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In an article centered on President Donald Trump (R) centralizing foreign policy in his office, Richard Haass, former president of the Council on Foreign Relations and staffer at State, NSA, and Pentagon, had this to say:

This is the most top-down administration in recent memory. This isn’t a staff-driven administration.

And there it is, in so many words. In the particular case, the President of the United States is, by Constitutional design, our nation’s foreign policy chief. The foreign policy-influencing centers in the Executive Branch—State, NSA, et al.—all work for him. And so do those centers’ staffers, albeit through their Department and agency Secretaries and Directors.

More broadly, this is a career government staffer (before joining the left-leaning think tank) decrying the reduction in control exercised by the deep state/bureaucratic state/staffers. He’s an echo of Fiona Hill’s angry objection that earlier-President Trump wasn’t listening to and obeying her ad hoc committee regarding Ukraine.

Tariffs and Economic Growth

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The good editors at The Wall Street Journal spent a lot of ink and pixels decrying President Donald Trump’s (R) tariff moves. They saved the money bit for the end, though maybe not in the way they intended.

The best response to the warning from the first-quarter GDP decline would be for Mr Trump to call the whole tariff thing off. Short of that, settle for 10% across the board and call it a day. If that’s too much of a come-down, Republicans will need to pass a pro-growth tax cut and accelerate their deregulatory push as their best chance to liberate the economy from its tariff kidnapping.

Those first two sentences are irrelevant, whatever one might think of Trump’s tariff moves. Republicans need to pass a pro-growth tax cut and accelerate their deregulatory push—and pass serious spending cuts—independently of any tariff moves.

Demonstrating her Naked Bias

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Justice Ketanji Brown Jackson is at it again. At a recent “judges’ conference” in Puerto Rico, she said this about “relentless attacks” on judges “designed to intimidate:”

The attacks are not random. They seem designed to intimidate those of us who serve in this critical capacity. The threats and harassment are attacks on our democracy, on our system of government. And they ultimately risk undermining our Constitution and the rule of law.

So far, so good. She’s decrying attacks by the likes of then-Senate Majority Leader Chuck Schumer (D, NY) on two Supreme Court Justices he specifically named. She’s decrying the smear campaign against then-Supreme Court nominee Brett Kavanaugh.

Right?

No. She went on, speaking to judges, not those who threaten them:

I urge you to keep going, keep doing what is right for our country, and I do believe that history will vindicate your service[.]

There it is. Jackson has prejudged cases currently before activist (my term) district judges who’ve overstepped their roles and are looking to dictate foreign policy from their benches, presaging how she’ll rule when any of those cases come before the Supreme Court.

Another Alternative

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A letter writer in an earlier WSJ Letters section took issue with Allysia Finley’s op-ed in which Finley favored removing sugary foods from SNAP eligibility, characterizing Finley’s position with typical Leftist exaggeration:

[U]nder Ms Finley’s principle it would be appropriate for the government to withhold such benefits for given people unless they adhere to government diktats on such lifestyle choices as individual diets, exercise habits and so forth….

In Wednesday’s Letters section, another letter writer responded:

[T]hose who support taking sugary treats off the SNAP menu aren’t suggesting that the government monitor lifestyle choices—they’re simply encouraging the government to restrict harmful foods from the program. … Given that taxpayers are paying for that food, this would help fulfill the government’s fiduciary responsibility to manage taxpayers’ money wisely in another way: the policy would also minimize food-stamp recipients’ healthcare bills, for which taxpayers are also paying.

She’s absolutely right on this. There is, though, another alternative to the earlier letter writer’s exaggeration: if a citizen doesn’t want to have to adhere to government diktats, the citizen shouldn’t take the government’s schilling in the first place. This choice often involves hard, uncomfortable tradeoffs, but in the vast majority of cases, they’re entirely possible while in the medium- and longer-run being beneficial.