Tag Archives: politics

A Federal Judge’s Mistakes

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US District Judge John Bates has ruled that President Donald Trump’s Executive Order rescinding the DACA program initiated by DHA memorandum under ex-President Barack Obama (D) is illegal.  He’s gone beyond that: he’s ordered the Trump administration to process new DACA applicants, not just renew existing ones.

Bates’ mistakes are two.  One is his ruling that, in effect, it’s illegal to rescind a Department Memorandum by Executive Order.  Of course, this is erroneous.  A Department Memorandum is not statute; it’s not even a Regulation.  It has no legal force beyond being a Cabinet-level equivalent of an EO.  As such, it’s subordinate to Executive Orders and available to cancelation by same.  At worst, the issue is a quibble, easily correctable by an EO instructing the subordinate DHS to rescind its Memorandum.

Bates’ next mistake is claiming the EO is illegal because it offered insufficient support to its claim that the DACA program is illegal.  This is simply irrelevant.  See above: it’s sufficient for the President to instruct a subordinate Cabinet to do a thing, so long as the thing itself is legal.  There are no statutes barring a President from instructing the rescission of a Department Memorandum; such a statute would be unconstitutional, anyway, trampling on the separation of powers as one would.  No explanation for why a Memorandum should be rescinded is necessary, however useful one might be.

A Misunderstood Premise

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Greg Ip is worried about financial deregulation.  He opened his Wednesday piece with this statement:

Deep into an economic boom with asset prices near records is when you’d expect the US financial system’s guardians to tamp down risk-taking. Instead, federal regulators and legislators are doing the opposite—watering down, narrowing or declining to enforce rules passed after the financial crisis.

That’s his misunderstanding.  Government shouldn’t be interfering in any way with the business decisions of private enterprises operating in a free market economy.  Beyond that, while declining to enforce is a bad move for any reason other than enforcement resource allocation, there’s no bad time to reduce the burden of regulation when regulatory bodies have gotten out of control, as the CFPB (among others) has done, and when regulations themselves have gone beyond what is truly necessary, as 80,000 pages in the Federal Register indicates.

His concern?

They will stimulate lending and risk-taking at a time when the industry is lowering its own standards amid a near-record economic expansion.

Again, this isn’t Government’s job.  A free market, unfettered by excessive Government diktats, will do a fine job of “regulating” businesses whose risk-taking goes too far.  And the free market will do it in real time, not the weeks or months required to write a regulation or to complete an enforcement action within an existing regulation.

A Mistaken Argument

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The Supreme Court heard oral argument earlier this week on the legality of President Donald Trump’s Executive Order producing a moratorium on entry into the US from certain selected nations.  Neal Katyal, representing those arguing to keep Trump’s EO blocked,

says Congress previously has rejected exactly the kind of nationality-based ban that Mr Trump has implemented.

Whether or not that’s true, though, is irrelevant.  All that the Court can consider (aside from what is in the Constitution, which is always before the Court, and what’s in the Executive Order before the Court today), is what Congress has done this time.  Past actions are irrelevant, particularly since what Congress does today that differs or outright contradicts what Congress did yesterday overrides yesterday’s action.

The “Muslim Travel” Moratorium Case

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The Supreme Court is hearing this case as it pertains to the current Executive Order that imposes a moratorium on entry into the US by persons coming from certain specified nations.  (In aside, I emphasize that calling the EO a “Muslim ban” is dishonest. It presents an impermanent moratorium on entry from nations representing a bare 10% of the world’s Muslims, and it presents the same impermanent moratorium on non-Muslim countries, like northern Korea.)

Lower courts have invoked campaign rhetoric, the clumsiness of the rollout of the first EO on the matter, a made-up permanence of the moratorium, and on and on, to create a court-manufactured policy determination that the EO was somehow prejudiced in some way.  With that fantasy, those lower courts have struck the EOs, one after another.

The lower courts have been imposing their own prejudices.

What’s in the text of the Executive Order? Is the EO itself legal? These are the only questions legitimately before the Justices. Campaign rhetoric is not in the EO, and so cannot be considered. The clumsiness of the rollout of the first EO had nothing to do with the EO—or with the one presently before the Justices—and so cannot be considered by the Justices.  The duration of the moratorium is a political decision, and so cannot be considered.

In Connecticut National Bank v Germain, the Supremes held

…time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

The concept plainly holds for EOs as well.  If it’s not in the EO, the EO doesn’t say it.

Whether the EO’s moratorium on entry into the US from a selected set of nations is good or bad policy is certainly worthy of debate, but it’s strictly and solely a political debate to be had by We the People, and through us, our elected representatives. Politics and associated policy decisions are beyond the ken of courts.

False Choice

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Consider the kerfuffle involving corm farmer subsidies in the form of ethanol mandates and the required use of ethanol by oil refiners as they produce vehicle fuels.  The argument is being presented as a choice forced on President Donald Trump in that he “must choose” between the corn farmers and the oil companies as the kerfuffle is solved.

Oil refineries want out of a costly requirement to blend ethanol into the gasoline they produce. Corn growers say the requirement diversifies the US fuel supply, and insist Mr Trump fulfill promises to at least hold the ethanol mandate.

This is wrong, because the choice is irrelevant.  What’s good for our economy is to get government to stop distorting the market and let producers and consumers decide for themselves what they want.  The situation as it stands elevates the cost of gasoline for wholly social engineering causes having nothing to do with free choices, it elevates the cost of automobile maintenance, and it elevates the cost of food—all for reasons having nothing to do with free choices and wholly for the sake of the social engineering demands of one group.

Trump needs to get rid of the ethanol mandate.  If there’s a market for ethanol in fuel, folks will buy it.  If the non-economic argument for ethanol additives truly is valid, let the social engineers make the case for it in the public square and show why folks should pay higher prices for the additives.