Tag Archives: law

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.

Why Not Both?

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Emma Waters and Dr Marguerite Duane, in  their WSJ Letters letter, propose invest[ing] in restorative reproductive medicine as an alternative to in vitro fertilization mandates.

First, a correction to their distortion of Leonard Lopoo’s op-ed regarding IVF as a means of addressing our nation’s baby deficit. Waters and Duane accuse Lopoo of pushing for IVF funding mandates. This is textbook gaslighting. Lopoo was very much in favor of subsidies, not mandates. He did mention one mandate—one State’s requirement that insurance cover IVF—in passing at the end of his piece, but merely as one example of how financial support for IVF can lead to increases in live baby birth rates.

Given that—financial support to allay the high cost of IVF—why do Waters and Duane insist that there must be a choice between the two? Even given IVF mandates, why must there be a choice between the two?

The short answer is that there need not. Support for IVF and research into the causes and mitigations of reproduction-related medical problems actually go hand-in-hand. One treats precursor conditions, and the other treats realized after-the-fact conditions, with considerable overlap in that second set of conditions.

Beyond all that, why not these two together with a host of other means that also encourage having babies, along with other, non-medical means of achieving population growth—legal immigration, for instance, color/ethnicity-blind free markets, lower income tax rates?

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.

Federal and State Funding for Abortion

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There is a move afoot in Congress to remove from Medicare reimbursements for abortion, and there is a case before the Supreme Court that will impact States’ ability to remove funding for abortion from Medicaid reimbursements. The removal from Medicare, should it come to fruition, would be entirely consistent with the Court’s Dobbs v Jackson Women’s Health Organization ruling, which rescinded Roe v Wade and put the abortion question entirely in the States’ hands. Now many States are attempting to act on their newly restored authority—hence the case before the Supreme Court.

It’s true enough that it’s a fraught decision for the mother to bring an unwanted pregnancy to term, but my concern here is for the life of the baby. From this, I see two boundary cases that are especially difficult.

One is where the health of the mother is at risk if the pregnancy continues. In this case, the mother’s health must be weighed extremely carefully against the life of the baby. This weighing may need to occur—must occur?—in open court, with competent, well-trained lawyers speaking for the baby.

The other is a mother’s pregnancy as a result of incest or rape. Carrying the baby to term here is an especially terrible choice for the mother—the pregnant child incest or rape victim may be too physically young to carry her baby to term, in which case, see above. Even where the victim mother can safely do so, it remains an especially terrible choice to carry inside her body a constant reminder of the monster who did this to her. Carrying the baby to term isn’t a matter of the mother’s inconvenience for nine months as some extremists on the right claim—the emotional damage to the mother from that is real, extreme, and often irrepairable.

Conventional wisdom is to permit abortion in the these narrowly defined, and not so often occurring compared to “ordinary” unwanted pregnancies, cases of incest or rape. Conventional wisdom here is not a completely bad bit of wisdom, but I remain concerned: why should the baby have to pay with its life for the crime of another? The baby needs competent, well-trained lawyers speaking for him or her in these cases, also.

It’s also true enough that, while Republicans are attempting to do more to provide fiscal support for those mothers during their pregnancies, in the period surrounding birth, and in the early years after birth (here including adoption options), they need to do better at specifically identifying those needs and then providing for them—and to do so publicly. That shortfall, though, shouldn’t be allowed to impact whether the baby is allowed to live at all.