Monday, February 13, 2017

Cruising the Web

Charles Krauthammer argues that the Trump travel ban was stupid policy though that doesn't mean it was unconstitutional.
The core idea makes sense. These are failed, essentially ungovernable states (except for Iran) where reliable data is hard to find. But the moratorium was unnecessary and damaging. Its only purpose was to fulfill an ill-considered campaign promise.

It caused enormous disruption without making us any safer. What was the emergency that compelled us to turn away people already in the air with already approved visas for entry to the U.S.?

President Trump said he didn't want to give any warning. Otherwise, he tweeted, "the 'bad' would rush into our country. ... A lot of bad 'dudes' out there!"

....Vetting standards could easily have been revised and tightened without the moratorium and its attendant disruptions, stupidities, random cruelties and well-deserved bad press.

The moratorium turned into a distillation of the worst aspects of our current airport-security system, which everyone knows to be 95 percent pantomime. The pat-down of the 80-year-old grandmother does nothing to make us safer. Its purpose is to give the illusion of doing something. Similarly, during the brief Trump moratorium, a cavalcade of innocent and indeed sympathetic characters — graduate students, separated family members, returning doctors and scientists — were denied entry. You saw this and said to yourself: We are protecting ourselves from these?

....Then there is the opportunity cost of the whole debacle. It risks alienating the leaders of even nonaffected Muslim countries — the 57-member Organization of Islamic Cooperation expressed "grave concern" — which may deter us from taking far more real and effective anti-terror measures. The administration was intent on declaring the Muslim Brotherhood a terrorist organization, a concrete measure that would hamper the operations of a global Islamist force. In the current atmosphere, however, that declaration is reportedly being delayed and rethought.

Add to that the costs of the ill-prepared, unvetted, sloppy rollout. Consider the discordant, hostile message sent to loyal law-abiding Muslim-Americans by the initial denial of entry to green card holders. And the ripple effect of the initial denial of entry to those Iraqis who risked everything to help us in our war effort. In future conflicts, this will inevitably weigh upon local Muslims deciding whether to join and help our side. Actions have consequences.

In the end, what was meant to be a piece of promise-keeping, tough-on-terror symbolism has become an oxygen-consuming distraction. This is a young administration with a transformative agenda to enact. At a time when it should be pushing and promoting deregulation, tax reform and health care transformation, it has steered itself into a pointless cul-de-sac — where even winning is losing.
Given how long it will take for all this to play out in the courts and the uncertainty that the Trump administration will win in the end, Krauthammer recommends that the administration lets go the appeals process and focus on crafting a much better-designed order based on the improved vetting that they assume they can create.
Put out something else, accelerate the vetting process, announce new procedures — there is a way to keep out people in these seven countries simply by the vetting process. They essentially have no central government. They have no information. So you can write the vetting process in a way that will honor the moratorium, even without calling a moratorium, and get the other justice on the court so that if it ever gets bumped up to the Supreme Court again, he’ll win.
Rich Lowry adds,
The administration, though, has the unilateral power to re-shape the debate and moot the current proceedings. It could re-fashion the executive order by, say, removing the issue with lawful permanent residents and giving up on the temporary ban, while focusing on stricter vetting through visa issuance procedures at the embassies and via secondary screenings at the airports. This wouldn’t make the legal attacks go away. But it would shift the terrain in the administration’s favor at the same time it wouldn’t give up the core of the policy, as Krauthammer persuasively argues. Remember: the temporary ban is not supposed to be about the temporary ban, but about providing a bridge to stricter vetting.

An opponent of giving any ground whatsoever might say there is an important principle at stake here about an over-reaching judiciary, and of course there is. But that makes it all the more important to fight shrewdly, and the current path seems likely to provide the occasion for very bad law that is a enormous victory for the Left on immigration going forward (just read the 9th circuit ruling for the worst case). So, there is a good argument that the best tack isn’t SEE YOU IN COURT, but SEE MY NEW EXECUTIVE ORDER.
If the goal is the vetting policy, rather than the moratorium, work on the vetting. They just better not go around bragging or tweeting that they're crafting a new vetting policy in order to accomplish the same thing as the moratorium and for gosh sake, don't talk ever again about banning Muslims. That is both stupid and repugnant. All he's accomplished by such talk is scaring a lot of decent people who are here legally and convincing a lot of people that he's a religious bigot. I'm not convinced that there is any vetting process that could be implemented that would prevent the "bad dudes" from getting here. I'm much more worried about the American citizens or legal immigrants who are radicalized by ISIS and inspired to commit attacks here. As was reported this weekend, while there have not been any deadly terrorist attacks from people from those seven countries in Trump's order, there have been 72 people from those countries who have been convicted of terrorism. There have, however been 580 people convicted of terrorism since 9/11 of whom 380 were foreign-born, so there are a lot of other people who wouldn't have been covered by his order. So Trump supporters who think that executive order was a panacea to protect the country should realize that there are a while lot more people to worry about. His order was poorly crafted and incompetently implemented and that gave his opponents their opportunity.

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Catherine Rampell has figured out what Elizabeth Warren and Milo Yiannopoulos have in common - the Steisand effect.
The term refers to what happens when an attempt to censor information backfires and instead unintentionally draws more attention to the censorship target. Its namesake is Barbra Streisand, who in 2003 sued a photographer for including a photograph of her Malibu home among a series of 12,000 aerial images documenting California coastal erosion. Thanks to the lawsuit, which was unsuccessful, this previously little-seen photo soon received enormous publicity and hundreds of thousands of views.

Plenty of other celebrities, companies and government agencies have come to rue the times they inadvertently publicized things they were trying to smother. Meanwhile, provocateurs and activists have learned how to weaponize the Streisand Effect, using censorship attempts to amplify their own voices.

After all, suppression of speech not only generates more public interest, as bystanders scramble to learn what all the fuss is about; it can also win the speaker sympathy and the moral high ground.
That's what Mitch McConnell achieved when he moved to have her silenced for reading a letter by Coretta Scott King to impugn Jeff Sessions. Instead of a moment that few would have noticed, she got to mild the moment for a couple of days and made sure that people knew what King had written about Sessions. McConnell helped her accomplish her mission. Well, the protesters against Yianopoulos served to give him a platform to bring attention to him.
Milo Yiannopoulos, Breitbart writer and sleazy professional troll, has built a career out of stoking Pavlovian outrage and censorship attempts from the left in order to build his audience on the right. He has mocked Jews, Muslims, African Americans, feminists, people who are overweight and the LGBT community (though he himself is gay), among others.

Clearly, the goal is to bait his intellectual opponents (not all of whom are liberal, mind you) into trying to forcibly silence him.

Sometimes you’re not trying to score. Sometimes you’re just trying to draw a foul.

Sure enough, Yiannopoulos’s opponents happily oblige, with heckles, threats and sometimes even violence — such as the riots that erupted at the University of California at Berkeley this month, which led to the cancellation of his talk and his evacuation from campus.

The riots didn’t silence Yiannopoulos, however; instead, the resulting coverage megaphoned his ugly message to a much broader audience and will help him sell more books, schedule more lucrative speaking gigs and receive more sympathetic tweets from our sitting president.
The worse thing that opponents can do to someone whose views they despise is to provide those speakers with a megaphone by trying to stop them from speaking. Just ignore them.

Yuval Levin
links to an unintentionally humorous Politico story about federal employees who are upset to find out that regulations that they worked hard to implement under President Obama are now in danger of being rolled back as Republicans make use of the Congressional Review Act. The law allows Congress to roll back regulations that became final in 60 legislative days. And it only takes a simple majority to do so. These bureaucrats are appalled to learn that the elected branch of government might have some say over what unelected bureaucrats have done. Levin writes,
Joe Pizarchik, who ran the Office of Surface Mining Reclamation and Enforcement in the Interior Department throughout the Obama years, apparently “spent more than seven years working on a regulation to protect streams from mountaintop removal coal mining.” Poor guy. And now the Congress is rolling it back. “My biggest disappointment,” he tells Politico, “is a majority in Congress ignored the will of the people.”

That majority in Congress was of course elected by the people, while Pizarchik wasn’t. But it gets worse. “I believe there’s a good chance that, in a legal challenge, that a court will overturn Congress’ actions here,” Pizarchik tells Politico, “as an unconstitutional usurpation of the executive branch’s powers.”

But of course the president, who runs the executive branch (and was also elected by the people), would have to sign off on Congress’s rolling back of these rules. That’s why Congressional Republicans couldn’t do this while Obama was in office. They had bigger majorities in both houses a year ago than they do now, after all. What they lacked was the president’s signature. So would an act of Congress signed by the president that undoes a regulatory agency’s interpretation of its mandate from Congress be an unconstitutional usurpation?

I suppose just having former Obama Administration officials worried about unconstitutional usurpations is some kind of progress.
Just as Democrats are finding out that Obama's executive orders and agreements can be undone by a new president, they're learning that bureaucratic regulations might not be permanent. That whole governing with a pen and a phone schtick that Obama used to brag about is just not quite as powerful as he might have believed.

Mary Katharine Ham points to a disturbing exchange from when Trump met with sheriffs this past week.
In a gathering of sheriffs Tuesday, President Trump asked for suggestions on ways to “bring about law enforcement in a really good, civil lovely way.” Sheriff Harold Eavenson of Rockwall County chimed in about a “state senator in Texas that was talking about legislation to require conviction before we could receive that forfeiture money.”
“Can you believe that?” Trump interjected.

“And,” Eavenson went on, “I told him that the cartel would build a monument to him in Mexico if he could get that legislation passed.”
“Who’s the state senator?” Trump asked. “Do you want to give his name? We’ll destroy his career,” he joked, to laughter from the law enforcement officials in the room.
There is something really repellent of having the president of the United States making a joke about destroying a politician's career simply for requiring something so reasonable as a conviction before a person's property could be taken. Ham writes,
[T]alking about destroying an elected lawmaker’s life for making law while a room full of law enforcement officers guffaw is chilling at the very least. It does nothing for public trust of either the president or law enforcement to be seen cavalierly laughing it up about abuses of power.
I wonder if Trump even understands what civil forfeiture is.
Civil asset forfeiture is a system by which law enforcement can seize property on suspicion of the property having been involved in a crime. Whereas a person must be charged and convicted by a jury of peers, in civil asset forfeiture, his property has no such due process. In fact, citizens must prove their property innocent through a byzantine and bureaucratic process to reclaim it.

The Institute for Justice, which defends cases like the Platts’, in which they lost their car after their son was pulled over for a window-tint violation, explains:

Law enforcement argues it must have this power to solve crimes. A study by the state of Texas said the state’s “proximity to the Mexican border” makes it a “target-rich” environment for drug-related seizures. Eavenson suggested it’s necessary to head off cartels. Critics argue it’s a violation of property rights and incentivizes abuse because forfeiture becomes a source of income for police forces. The same study found three counties in which asset forfeiture made up more than 70 percent of the police force’s budget, and more than half of counties use such funds to supplement salaries in the district attorneys’ offices.

The federal government brought in more than $5 billion in civil asset forfeiture in 2014, topping the value of property stolen from Americans by burglars in the same year, according to the FBI.

The practice can be particularly burdensome to low-income citizens, as the government is not required to provide a lawyer but can require multiple court dates and onerous procedures to keep one’s property. In Philadelphia, police used the process to seize more than 1,000 homes over a decade, according to an Institute for Justice report. The confluence of constituency and property rights makes it an issue ripe for bipartisanism.
But Trump prefers to make cracks about destroying the career of a politician trying to protect the unfortunate people caught up in the police and FBI's web. Trump repeatedly demonstrated his indifference to property rights during the campaign when he praised eminent domain as "wonderful." He praised the almost universally condemned decision of Kelo v. New London, because he likes the idea that government can take someone's private property in order to give to some bigger developer like, say, Donald Trump.
[H]e quickly broadened his argument, insisting that government should always be allowed to take private land for development projects if the promised public benefits are big enough.

“If you have a factory, where you have thousands of jobs, you need eminent domain, it’s called economic development,” Trump said. “Now you’re employing thousands of people and you’re able to build a factory, you’re able to build an Apple computer center, where thousands of people can work. You can do that, or you can say, ‘Let the man have his house.’”

Trump added that he thinks “eminent domain is wonderful,” and contended that those who are forced out of their homes often end up better off. “The little guy sometimes gets a lot of money. Sometimes they’ll get four or five times what their property is worth.”

Baier pointed out that some homeowners might not want to move out of their homes, even if the promised compensation is significant. Trump argued that homeowners often fight eminent domain not out of principled support for private-property rights, but as a negotiating tactic.

“Most of the time, they just want money,” he said. “It’s very rarely they say, ‘I love my house, I love my house, it’s the greatest thing ever.’ Because these people could buy a house now, that’s five times bigger, in a better location.”
So, I guess it's no surprose that he'd like the idea of taking people's property simply because the property was involved in a crime.

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D.C. McAllister observes the double standard being applied to Ivanka Trump. If she tweets out a picture of her with her infant son, she gets attacked for that.
Ivanka’s tweet didn’t mock other women. In fact, many women could identify with her. Plenty of working moms have taken their kids to work, and women who are homemakers or work from home appreciate a mom who is active in their children’s lives.

I can bet if any liberal celebrity or politician tweeted the same thing, they’d be praised for it. But not Ivanka. Because she’s her father’s daughter, she is unfairly attacked by other women.
And then there are the efforts to get stores to stop carrying her merchandise because they don't like her dad.
Aren’t women supposed to be treated independently, separate from their male relatives?

Isn’t this what we were told repeatedly about Hillary Clinton? It didn’t matter what Bill did. Hillary was her own woman. She didn’t have to answer for her husband’s shortcomings and immoral behavior, particularly toward women. Yet this is what we get about Ivanka: “While she is not her dad, she is complicit in his actions, especially considering her husband is her dad’s advisor.”

Complicit in his actions? Which illegal or immoral actions is she involved in, exactly? Unlike Hillary, who actually took active steps to silence her husband’s accusers of sexual assault and rape, Ivanka has done nothing even remotely similar. She has supported her dad’s candidacy, and she continues to support him, but she is not actively “complicit” in anything. Women are independent of men, right?

Or is that true only for liberal women? Only they are seen as individuals with identities of their own, but Republican women, well, they have no independent identities. They’re appendages of the men in their lives. I call BS on that one.
And the irony is that Ivanka is the liberal one in her family who is trying to work on women's issues. Given that she was registered as an Independent in New York, such liberal feminists would be better off trying to co-opt Ivanka rather than trying to demonize her.

Jeff Jacoby makes the argument
that school choice can diminish conflicts over education and curriculum.
At the Cato website, McCluskey maintains a “Public School Battle Map” that catalogs the clashes and angry controversies into which neighbors are constantly driven by the public school status quo. These battles erupt in state after state, year after year. They are fought over differences about curriculum, moral and religious values, reading assignments, race and ethnicity, sexuality and gender. For 2016 alone, scores of conflicts are recorded: in a Louisiana school district, for example, where students were banned from bringing American flags to football games; in Mississippi, where legislation was introduced to protect the right of teachers to discuss “controversial subjects,” such as creationism; in Maine, where a high school senior’s gay pride quote for his yearbook was censored; in Colorado, where atheists demanded the right to distribute antireligious literature to students.

McCluskey’s map, which goes back only to 2001, records more than 1,500 instances of such political fighting. When schools are controlled by the government, and the government is controlled by the winners of elections, parents, teachers, and administrators will inevitably end up doing battle.

More school choice means less educational conflict. Let families choose from a wide array of educational options, and you diminish their impulse to fight over what gets taught and by whom. Winner-take-all is a terrible model for civil society. By contrast, a model built on freedom, pluralism, and equality — a model in which parents have as much leeway to provide for their children’s schooling as they do for their meals, clothing, or religious training — would be immeasurably fairer, and a far better bet for keeping the peace.

While Trump's tweeting about a "so-called judge" was obnoxious and most probably counter-productive in his efforts to end the temporary restraining order on his executive order, he is not the first president to publicly criticize the judiciary. Carl M. Cannon reviews the history of such public criticisms from Jefferson, Jackson, Lincoln, and FDR through to our two most recent presidents.
The point in recalling these examples is two-fold. First, it’s not the worst and the weakest U.S. presidents who’ve sought to subvert judicial independence. It’s the activist presidents who’ve done so, for obvious reasons: They chafe under limitations imposed on their authority by separation-of-powers doctrine.

The second point is that when it comes to Donald Trump, his critics have selective memories, along with a clear double standard. Where was the outrage in liberal quarters when Barack Obama went on a sustained public relations campaign to intimidate the Supreme Court into upholding the Affordable Care Act? Or when he publicly assailed the court for upholding the First Amendment in the Citizens United case?

In his 2010 State of the Union Address, with several of the justices sitting in front of him, Obama delivered a blistering attack on Citizens United, which he said “reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”

This was a strange interpretation of a decision that merely ruled that a small conservative U.S. nonprofit should not have been prevented from airing and advertising its 2008 documentary film critical of Hillary Clinton, who was running for president. And Obama’s salvo offended at least two of the justices. While Sen. Chuck Schumer stood behind them clapping vigorously, Justice Samuel Alito was caught on camera shaking his head mouthing the words “not true.” Chief Justice John Roberts later said at the University of Alabama that he found such attacks from the president “very troubling.” But Obama was just warming up.

At an April 2, 2012 Rose Garden press conference, the president answered a question about the legal challenge to the ACA this way: “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Aside from whether it’s proper for a president to pressure the Supreme Court over pending legislation, Obama’s assertions were plainly false. The health care statute had passed on a narrow, party-line vote—not a “strong majority”—and his party had paid for it in the subsequent midterm elections. Moreover, the high court had been overturning such laws for 200 years by the time Obamacare came along.

Nonetheless, in March 2014, Obama told Reuters that there was “not a plausible legal basis” for striking down the law. He made it clear that if people lost their health insurance, he would be blaming the Supreme Court. This is precisely the same cudgel Donald Trump has used to try and pressure the courts in the current immigration case.

Was Trump out of line? Yes, just like Jefferson, Jackson, Lincoln, both Roosevelts, and Obama before him. And the record suggests that working the refs this way doesn’t hurt a president: John Roberts was the surprise fifth vote upholding Obamacare in the face of a “commerce clause” challenge.

The best rejoinder to those who fear that an independent judiciary is at stake is that the adverse ruling of U.S. District Court Judge James Robart—the man Trump called a “so-called judge”—was unanimously upheld Thursday night by a panel of three appellate jurists.
Sai Prakash and John Yoo add,
But if presidential attacks on the courts are nothing new, the history also underscores the smallness of Mr. Trump’s vision. Jefferson, Lincoln and FDR knew when to speak and when to keep silent. They invoked the great powers of the presidency to oppose the Supreme Court only when fundamental constitutional questions were at stake: the punishment of political dissent; secession and slavery; Congress’s power to regulate the economy. The occasion for Mr. Trump’s fury is a temporary restraining order of a temporary suspension of immigration from seven countries. Mr. Trump still has the opportunity to prevail on the merits. He hasn’t lost the case—at least not yet.

The Trump administration will often appear in court over the next four or eight years. It will lose plenty of cases, because, like its predecessors, it will push the legal envelope. If the president publicly vents every time he loses a ruling, his complaints will recede into background noise.

Questioning judicial decisions, and even the judiciary’s legitimacy, is entirely proper. But a wise president will reserve such attacks for extraordinary matters of state involving the highest constitutional principles. To do otherwise risks dissipating the executive’s energy, weakening the president’s agenda, and wasting his political capital. When criticizing the Supreme Court for upholding the Bank of the United States, declaring Dred Scott a slave, or striking down the New Deal, presidents were advancing constitutional agendas worthy of a fierce attack on the courts. Mr. Trump is upset about losing a minor procedural test of a temporary executive order. If he doesn’t learn to be more judicious, we’re in for a long four years.
Well, that's the safest prediction one could make.

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What a surprise - the impact of Brexit on the U.K.'s economy is less than anticipated. Who knew that we couldn't trust all those prognosticators of doom?

Not only did opponents of school choice gin up absurd charges against Betsy DeVos such as her confirmation would lead to more student deaths in schools, but now that she's been confirmed, they're continuing their crusade against her.
Protesters blocked Education Secretary Betsy DeVos from entering two schools in Washington, D.C., on Friday morning, the latest sign of opposition to President Trump's most controversial Cabinet nominee.

DeVos first tried to enter a a school building when protesters physically blocked the stairwell. DeVos and her staff turned away and were followed by a chanting protester who ripped her for her political donations to Republicans.

The protester chanted "Shame!" at DeVos as she got into her vehicle.

DeVos reportedly did make it into the building, where she was meeting with teachers union officials.

But after, an advance team going to a second school in southwest D.C. that DeVos was expected to visit was blocked by protesters.

The chanting protesters locked arms and wouldn't allow a vehicle enter the school parking lot, according to video from a local ABC reporter.
Yes, because that's how you show your concern for D.C. students and teachers is by making a fuss outside their schools and attempting to prevent them from discussing their concerns with the Secretary of Education. Isn't their pretense of their objections is that she won't do enough for public schools? Shouldn't they want her to visit public schools?

There is something they can all do if they object so thoroughly to DeVos and are so very afraid of what she might do in office - close down the Department of Education and return the full control of public schools to the states. Then they don't have to worry about what her evil influence might bring about. As Neil McCluskey writes,
This does not, by the way, mean ending the federal role in keeping states and districts from discriminating in their provision of education, but that is much more properly a Justice Department responsibility.

The vast majority of what the Education Department does is collect taxpayer money, burn a bunch off in bureaucracy, then bundle the remainder into programs that tell states, districts and schools how to run education, all with little evidence of meaningful academic effects. This situation will likely improve a bit with the Every Student Succeeds Act, which does return some control to states, but a little better is still awfully bad.