Category Archives: ethics

Mischaracterization

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The Vera Institutes of Justice’s Santiago Mueckay has one in his letter in the WSJ‘s Letters section.

[T]he Supreme Court has consistently affirmed that immigrants are entitled to due process under the US Constitution.

This is a cynically offered strawman argument. No one is arguing that immigrants are not entitled to our Constitution’s due process protections.

Illegal aliens, though—the ones targeted by rapid deportation efforts—hold themselves outside our social compact, outside our government’s jurisdiction, by breaking into our country in violation of our laws and then hiding from our government. From that, illegal aliens have no claim to, and no right for, any of the protections of our Constitution.

Mueckay will have to play with his dolly without me.

Another Reason Why

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Here is another reason our nation’s student loan debt has gotten out of hand. The subheadline goes

Millions of Americans suddenly owe billions of dollars in student debt after years of forbearance

The foolishness of the forbearance itself contributed to the enormous risks the massive student loan overhang represents for our economy. There’s nothing sudden, though, about the reappearance of that debt.

The article then does nothing to correct this distortion. Here’s the lede:

Millions of Americans had their student-loan payments put on pause during the pandemic. Now they are back on the hook again.

They never were off the hook; none of those loans were forgiven in any legal way. They’ve always been on the hook. “Millions of Americans” have owed those billions of dollars all along. This sort of distortion is even more heavily contributory to those risks.

Full stop.

No Compromise

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Two lawyers, Joel Cohen and Bennett Gershman, think they have a solution to the exploding epidemic of nationwide injunctions being issued at the Federal district level by these bottom of the judicial hierarchy judges. They tried to lay out the problem:

From the justices’ questions in oral arguments last week, it was clear all are uneasy with the idea that trial judges have the authority to act as a “roving commission to correct every legal wrong that they can consider and to exercise general legal oversight over the executive branch,” as Solicitor General John Sauer put it.

The Justices are right to be “uneasy” about that. Aside from the overblown arrogance of a district judge issuing such an injunction, it leads to what we’re seeing now: judge-shopping to find the district most convenient to the case being presented and most likely to issue the desired national injunction. Then the lawyers added, however:

On the other hand, requiring everyone injured by an executive action to initiate his own lawsuit to gain relief seems unduly burdensome.

No, it isn’t burdensome to require everyone who claims an injury to enter into court to make that case. National injunctions not only include those claimants, they sweep up millions of others not injured in to the same case via the limitations imposed on everyone by that universal injunction—that’s the burden.

Then the lawyers offer their solution.

Judge Orrin Judd of the Eastern District of New York declared the US bombing of Cambodia unlawful and issued a permanent injunction against the government barring any military activities involving Cambodia. …
[R]ecognizing the decision’s potential impact, Judd granted the government a two-day stay to allow an appeal.

Fleshing this business out, the lawyers added,

The justices can place limits on such nationwide injunctions. When a district judge issues a nationwide injunction against the government, the court could require that he grant an automatic stay of, say, five days to allow an appeal to the circuit court, which would in turn be required to decide the case within, say, 30 days. The injunction, if affirmed, would no longer be the decision of a single judge. And if the circuit court gets the issue wrong, the Supreme Court could take it up quickly.

This is not an area where compromise is possible. Our Constitution must be adhered to in every particular, and that necessarily includes its structuring of our Federal government into three separate, coequal branches with only limited (if critically so) overlap among the branches.

In the present context, our Constitution makes the Executive Branch, particularly the President, the creator and operator of our nation’s foreign policy. Overlap: the President can engage with enemies militarily, but only the Legislative can declare war, and if the latter finds the former’s conflicts mistaken or lasting too long, it can cut off funding for the conflict.

Crucially, there is no overlap here between the Judiciary and the Executive. Lower courts are creations of the Legislative; their opinions on constitutionality are no more than that.

So it is with district court judges presuming to issue universal—nationwide—injunctions. These are bald and dangerous oversteps of our by-design separation of powers in our Federal government, and they must stop altogether. Given the number of activist judges issuing these opinions, they must be ended by the Supreme Court in no uncertain terms.

As the two lawyers wrote, courts can move quickly and efficiently, especially when a brief stay is granted, and there is an urgent need for expeditious review. Courts need no stay, temporary or otherwise, to move quickly and efficiently. They can do so when the matter, correctly limited to the litigants within the confines of the district, warrants the urgency.

Full stop.

There’s a Hint There

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President Donald Trump’s (R) National Security Council is being reorganized and downsized streamlined in a badly needed revamp. One demonstrated need is this:

The goal, according to one official, is to streamline processes within the NSC, which coordinates national security and foreign policy for the president….

This is a continuation of Fiona Hill’s (remember her?) anger over her ad hoc interagency coordination group foreign policy inputs not being obeyed by Trump I. It’s not the NSC’s job—or it should not be—to coordinate national security and foreign policy for the President. It’s the NSC’s job—or it should be—to coordinate national security and foreign policy inputs to the President’s own national security and foreign policy development and decisions.

The move is intended to increase DoD’s and State’s direct involvement in those inputs, and that’s entirely appropriate. Homeland Security’s inputs should be increased, as well, given that that Department was created long after the NSC. The three departments, too, already form—or should form—the core of all of those policy development inputs.

An Irrelevant Argument

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Or it should be.

Recall that the Homeland Security Secretary Kristi Noem has canceled Harvard University’s authorization to enroll foreign students over that school’s decision to not bother in any serious way to protect the safety and free speech rights of Jewish students and to keep enrolling “students” who then engage in anti-American and pro-terrorist riots, building seizures, and vandalism, along with its refusal to expel and bring charges against those “students” already enrolled who’ve engaged in those behaviors. These school administration decisions could rise to the level of civil rights law violations, similar as they are, to Columbia University’s decisions which has resuled in that school being charged by HHS with civil rights law violations.

Harvard’s situation:

Harvard enrolls about 7,000 international students—more than 25% of the student body—and like many US universities it relies on their tuition payments, which are often full-fee.

As Noem noted,

It is a privilege, not a right, for universities to enroll foreign students and benefit from their higher tuition payments to help pad their multibillion-dollar endowments[.]

This echoes SecState Marco Rubio’s acknowledgment that even getting a visa (student or otherwise) in the first place is a privilege and not a right. Both acknowledgments also carry the flip side that our government has no obligation to grant visas and no obligation to authorize colleges or universities to enroll foreign students.

Still, Harvard has filed an appeal to Noem’s decision and is seeking an injunction, trying to get a judge to once again dictate from the awesome heights of a district court knoll top what a coequal branch of our government can do regarding foreign policy. In his letter “to the community,” Harvard President Alan Garber wrote that the cancelation,

imperils the future of thousands of students and scholars across Harvard and serves as a warning to countless others at colleges and universities throughout the country who have come to America to pursue their education and fulfill their dreams[.]

This is both cynically specious and wholly irrelevant. That Harvard has designed its business model to be so dependent on foreign student enrollment in no way obligates our government to allow such enrollment. Further, in no way do future “thousands of students” or “scholars” have any intrinsic right to a student visa, or any other form of visa.

The DHS decision here certainly should serve as a warning to others at colleges and universities, and at any other institution or enterprise, that coming into our nation for any purpose is a privilege and not a right, and that granting such a privilege incurs an obligation on the grantee to obey all of our laws, including the free speech rights of others and the sanctity of property, whether privately held or government held.

There is no part of Harvard’s argument that is relevant to the case. What matters—all that matters—is what does the law say? Is this cutoff permissible under existing law?

If the cutoff is permissible, then a non-activist judge who obeys our Constitution and his oath of office, must deny the injunction request. Harvard should have two basic choices: shape up and stop coddling rioters and vandals, or work to change the law.

Unfortunately, the case went before just such an activist judge. Federal District Judge Allison Burroughs has issued Harvard’s requested injunction staying the DHS cancelation.