Category Archives: law

It Doesn’t Matter

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The Supreme Court has said that the Trump administration can go ahead with its plans to deport 500,000 “migrants” from Cuba, Nicaragua, and Venezuela, ruling that the administration can cancel, as a preparatory step, the Temporary Protected Status the Biden administration had granted those illegal aliens. It’s only a partial victory, though, as the Court merely stayed a lower court ruling that barred the TPS cancelation while the matter works through the courts on its merits.

Two activist Justices dissented. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, centered her dissent on the premise of the

devastating consequences of allowing the government to precipitously upend the lives and livelihoods of nearly half a million noncitizens while their legal claims are pending.

I’ll omit comment on the cynicism of the “noncitizen” characterization. Whether cancelation and potential subsequent deportation are good or bad policy, whether the removal is disruptive of the lives of those 500,000, these are political and social considerations, and so they are wholly irrelevant here. What does matter, all that is relevant, is whether the Trump administration is acting within the law. That is all that an American court can adjudicate; political and social considerations are the province of the political branches of our government and are explicitly outside the scope of our judicial branch. The judicial branch has no jurisdiction whatsoever on purely political/social matters.

All that matters to the judges, all that should matter, is what the stature before them and the relevant clauses of our Constitution say, not what judges think they should say.

That May Be

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The Trump administration is moving to withdraw the visas for People’s Republic of China students at American colleges and universities. There is concern that the loss of these students at those schools would negatively impact the schools’ bottom lines.

A Trump administration announcement Wednesday that it would “aggressively” begin revoking visas for Chinese students confronts universities across the US with the prospect of a hit to their finances and talent pool.

There is, of course, a hue and cry from the press and their Party politicians. For instance, “US experts,” one of the many childhood imaginary friends so often consulted by news writers and opinionators, claim

A big decline in Chinese enrollment could severely cut into schools’ bottom line [sic] and damage US competitiveness[.]

And this: the People’s Republic of China “buys”—the news writer’s term—

education-related services, including spending on tuition and books, from the US, at $14.3 billion in 2023, 21% more than the $11.8 billion spent by students from India, and more than six times as much as students from South Korea, another major supplier of international students to the US.

That may be, but it isn’t relevant. Stipulate even that most of the PRC’s students here are entirely on the up and up. The question is not how much money the PRC spends on our schools, it’s the risk from the many who are here to spy directly, or are here to learn our technologies and our social techniques in order to take them back to the PRC to use against us.

The breadth and depth of that risk makes the group of them not worth the trouble to vet—an imperfect process at its best. The schools can adapt and adjust their budgets.

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.

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.

A Thought Experiment

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Our so-called “elite” universities are banding together to form a collective to resist the Trump administration’s efforts to withhold grants and contracts from those institutions that aren’t doing enough to combat antisemitic bigotry and support for terrorists, reporting what foreign money they’re receiving and in what amounts, and adequately limiting the numbers of foreign students and faculty to suit the administration.

The collective is centering its resistance on the premise that Government doesn’t get to dictate to them what their practices might be, never minding that all donors get to specify how their donations are used.

What this collective is missing is that colleges and universities have no particular right to government funds, and that government has no particular obligation to send money to colleges and universities.

Hence my thought experiment.

Consider that a large collection of private citizens get together and say to a college or university, “You can’t have any more of our money unless and until you stop doing these things and start doing these other things.”

What legal recourse would that college or university, or any collection of colleges and universities similarly addressed, have against that collection of private citizens? How is their private collective action any different from their collective action through their government? It is, after all, the same money, whether their private money given or withheld directly or their private money washed through government as tax remittances.