Wednesday, June 28, 2017

Cruising the Web

I never thought that Trump's travel order was necessary, but I didn't doubt that he had the power to issue that order. Given that he first issued the order about five months ago and it was only temporary while the administration figured out new vetting procedures for issuing visas. Well, that original time has now just about elapsed and there are going to be three to four months until the Supreme Court hears the case. So, the whole question may become moot by then if the administration actually does what it said it was going to do.

Jonathan Turley chastises the legal pundits and appellate judges who thought that the order wasn't within the president's executive authority.
For those of us who have long argued that the legal authority supported Trump, the order was belated but not surprising. However, the order does offer a brief respite for some self-examination for both legal commentators, and frankly, the courts. At times the analysis surrounding the immigration order seemed to drop any pretense of objectivity and took on the character of open Trump bashing.
Turley argues quite accurately that Trump's persona and his own attacks on the media have driven the media so crazy is that they've dropped their supposed standards and ethics. The same appeared to be happening with the lower courts.
For those of us who have long argued that the legal authority supported Trump, the order was belated but not surprising. However, the order does offer a brief respite for some self-examination for both legal commentators, and frankly, the courts. At times the analysis surrounding the immigration order seemed to drop any pretense of objectivity and took on the character of open Trump bashing....

The court ruled “when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.” The preliminary ruling on this type of stay indicates that, when the final merits are decided, a majority of the court is likely to make the changes permanent and binding.

Indeed, three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — did not want any limitation on lifting the injunction and dissented from that part of the opinion. To use Johnson’s rhetoric, the date of the hanging is set for the October term absent a dramatic shift on the court. That gives us some time to contemplate how this controversy has impacted our core institutions.

I previously wrote that Trump seems at times to bring out the worst of people — supporters and opponents alike. Yet, his signature attacks often cause people to fulfill the very stereotypes that he paints, particularly among some reporters and judges. Ironically, Trump’s attacks on the media as biased may not have been true at the outset but they are true now. Mainstream media have become openly hostile to Trump.

There is often little distinction on some cable networks between the hosts and their guests in attacking Trump, who brings much of this criticism on himself in ill-considered and often insulting attacks. However, the media is trained to resist such personal emotions and retain objectivity. Throughout much of its history, it has done precisely that ... until Donald Trump.

He seems like the itch that reporters and commentators just have to scratch and frankly sometimes it seems like a few are enjoying it too much. With ratings soaring, hosts and legal experts have shown little interest or patience in the legal arguments supporting his case, even though the Obama administration advanced similar arguments in court.

The hostile (and often distorted) analysis in the media was disconcerting but predictable, given the trend toward greater opinion-infused coverage. Networks are fighting for greater audience shares based on formulaic coverage — offering echo-chamber analysis to fit the ideological preferences of viewers. For the anti-Trump networks, the legal analysis is tellingly parallel with the political analysis. These cable shows offer clarity to viewers in a world without nuance. The law, however, often draws subtle distinctions and balancing tests. In this way, viewers are being given a false notion of the underlying legal issues in these controversies.

What has been more concerning is the impact of Trump on the courts. Trump shocked many in both parties by his personal attacks on judges as well as general disrespect shown to our courts. These were highly inappropriate and inaccurate statements from a president. However, once again, courts seemed to immediately become the very stereotype that Trump was painting.

Of course, the White House gave the courts a target-rich environment in the first travel order, which was poorly drafted, poorly executed and poorly defended. Yet, the courts did not just strike those portions that were problematic. Where existing case law requires courts to use a scalpel in striking down provisions, judges pulled out a meat ax. They enjoined the entirety of the order while lashing out at Trump’s most sensational campaign rhetoric....

In the Fourth and Ninth Circuits, judges brushed over the obvious improvements and again relied on Trump’s own comments and tweets. It seemed like sensational tweets were more important than long-standing precedent or official statements from the administration.

The level of reliance on campaign statements by the courts was wrong in my view, as I have repeatedly stated. The record had conflicting statements from Trump and his associates but courts seemed to cherry-pick statements, relying on those that fulfilled their narrative while ignoring those that did not. The analysis of the order should have turned largely on the face of the document. While such political statements can be relevant to analysis (particularly in areas like racial discrimination), the court has always minimized such reliance in favor of more objective textual analysis.
That doesn't mean that the order was good policy. But the basis on which the lower courts decided was to stretch the law just to deliver a blow to Trump.
Courts that once gave President Obama sweeping discretion in the immigration field seemed categorically opposed to considering the same accommodation for President Trump. For commentators, viewers were given a highly distorted view of the existing law — brushing aside decades of cases while supporting the notion that a major federal policy could live or die by the tweet.
The Supreme Court notably didn't pay any attention to Trump's statements. If all you knew about the executive order was what you heard in the MSM, you would be amazed that the Supreme Court struck down most of the injunctions against the implementation of the order. The media will have to search out

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Andrew McCarthy explains why the Supreme Court order on the travel order is not as big a deal as perhaps President Trump would like to brag.
This ruling is unworkable and actually doesn’t much narrow the lower-court stays.

Let’s try to keep it simple here. The lower courts granted standing to challenge the travel ban to American persons and entities that had special relationships with aliens outside the United States. Ostensibly, the lower courts claimed that the rights of these Americans were harmed by the travel ban’s exclusion of aliens — specifically, aliens who a) are close relatives whose exclusion would deny family reunification to an American; or b) are scholars whose exclusion would deprive their contributions to American universities that had extended offers to them. In effect, however, the lower courts were vicariously granting American legal rights to aliens outside the United States, despite the judges’ grudging admission that the aliens technically had no such rights.

In its order this morning, the Supreme Court did not disturb this arrangement.

To be sure, the justices rejected the lower courts’ extension of vicarious rights to aliens who did not have such special “bona fide relationships” with American persons or entities. The lower courts’ reasoning for that extension heavily relied on the imputation to Trump of anti-Muslim bias — that’s part of why we can infer that most of the justices are not persuaded by that rationale. Nevertheless, six of the nine justices, at least for now, appear inclined to rule that Americans in these “bona fide relationships” with aliens have not only standing but legal interests sufficiently compelling to block enforcement of presidential orders that address national-security threats.
Read the rest of his post for the evidence he marshals to criticize the Supreme Court's Monday ruling.

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Rich Lowry refutes the idea that the GOP health care bills are doing anything all that radical in reforming Medicaid. What was radical is how the program expanded on Obama.
The Democrats now make it sound as if the Obama expansion is part of the warp and woof of Medicaid. In fact, it was a departure from the norm in the program, which since its inception has been, quite reasonably, limited to poor children, pregnant women, the disabled and the ailing elderly. ObamaCare changed it to make a priority of covering able-bodied adults.

ObamaCare originally required states to enroll able-bodied adults with incomes less than 138 percent of the federal poverty line starting in 2014. The Supreme Court re-wrote the law to make the expansion voluntary, and 31 states and the District of Columbia took it up.

Traditionally, the federal government had paid more to poor than rich states, with a match ranging from 75 percent for the poorest state, Mississippi, to 50 percent for the rich states. ObamaCare created an entirely new formula for the Medicaid expansion population. It offered a 100 percent federal match for the new enrollees, gradually declining to a 90 percent match — supposedly, forever.

So, perversely, ObamaCare had a larger federal match for the able-bodied enrollees in Medicaid than for its more vulnerable populations.

“This higher federal matching rate,” writes health-care analyst Doug Badger, “allows states to leverage more federal money per state dollar spent on a non-disabled adult with $15,000 in earnings than on a part-time minimum-wage worker with developmental disabilities, who earns barely half that amount.”

According to Badger, West Virginia received seven times as much federal money for spending $1 on an able-bodied adult than for spending $1 on a disabled person.

This obviously makes no sense, and the Senate health-care bill phases out the enhanced funding over four years. But it doesn’t end the expanded Medicaid eligibility for the able-bodied. And a refundable tax credit will be available for low-income people that is meant to pick up any slack from Medicaid. This is hardly social Darwinism.
THe other change is a change in how the federal government funds Medicaid in the states.
The other, longer-term change in the House and Senate bills is moving to a per-capita funding formula for Medicaid, with the Senate bill ratcheting the formula down to per-capita growth plus the inflation rate — in 2026. Maybe this will prove too stringent, but it used to be a matter of bipartisan consensus that the current structure of Medicaid creates an incentive for heedless growth in the program.

The way it works now is that Mississippi, for instance, gets nearly $3 from the federal government for every $1 it spends. Why ever economize? In the 1990s, the Clinton administration advanced what it portrayed as an unobjectionable proposal to make Medicaid more efficient while preserving the program’s core function — namely, a per-capita funding formula.
So remember all this when you hear Democrats moaning that the GOP is set to kill millions of people. As Lowry analogizes, for progressives, the welfare state has become the equivalent of the Brezhnev Doctrine that once the Soviets dominated a country, it could never break free. Now once the welfare state has been expanded, it should never be trimmed back.

Guy Benson is also trying to refute the Democrats' demagogic hysteria about the Senate plan.
Republicans' plan would make Medicaid fiscally sustainable, and gradually revert back to a model that prioritizes help to the poorest people, who need the most help. It's perverse that the federal government provides a more generous funding formula for Medicaid's better-off, better-situated expansion enrollees than the original, neediest population for whom Medicaid was supposedly created in the first place. And while the GOP proposal would reform the structure of the program by offering a capped per-capita annual allowance to each state (which would foster restraint, prioritization, innovation, and creativity), the notion that it makes drastic "cuts" to the overall program is deeply misleading. ...

This funding increase of tens of billions of dollars is nevertheless cast as a "cut" because it would spend less than Obamacare would.

Just imagine what the media would be saying if Claire McCaskill were a member of Trump's administration.
n March, Sen. Claire McCaskill was unambiguous. The Missouri Democrat said she never once met with Russian Ambassador Sergey Kislyak in her 10 years serving on the Senate Armed Services Committee.

"No call or meeting w/Russian ambassador. Ever," McCaskill tweeted. "Ambassadors call members of Foreign [Relations Committee]."
Soon after that tweet, it was revealed she did interact with the Russian ambassador.

And now, CNN has learned, McCaskill spent an evening at a black-tie reception at the ambassador's Washington residence in November 2015.

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Yesterday I speculated that the Supreme Court's ruling in the Trinity Lutheran case might be used to overturn states' Blaine amendments blocking state aid to schools with a religious affiliation. Well, it seems that that was indeed the Court's intention with an order remanding a case back to the lower courts that they issued on Tuesday. The WSJ reports,
In 2011, Colorado’s Douglas County adopted a Choice Scholarship Program to let 500 students attend a local private school. But groups including the American Civil Liberties Union sued. The Colorado Supreme Court killed the program citing the state’s version of the Blaine Amendment, one of many state anti-Catholic laws from the 1800s to prevent public money from funding religious schools ( Doyle v. Taxpayers for Public Education).

The Douglas County School District and the Institute for Justice, which represents three families in Colorado, appealed to the Supreme Court in 2015, but the Justices held the petition pending the resolution of Trinity Lutheran v. Comer on Monday. On Tuesday the Court vacated and remanded Doyle to the lower court for reconsideration in keeping with Trinity Lutheran’s holding that Missouri’s application of the Blaine Amendment violated the First Amendment’s Free Exercise Clause.

The High Court typically vacates and remands only when the Justices think there is a “reasonable probability” that the lower court got it wrong. Colorado’s do-over is a warning to other states that might use Blaine Amendments to derail school choice programs that threaten teachers unions and the public school monopoly.
I'm for as much choice as possible in education. I've seen what it means at the charter school where I teach and at the charters in Washington, D.C. where my daughter has worked. The more opportunities there are for students to get out of bad schools and for their parents to choose other options, the better.
The win comes at a good time for school choice advocates who have been building momentum in the states. In May three families successfully challenged a Montana rule that prevented a voucher program from being used at religious schools. On Monday the Georgia Supreme Court unanimously upheld a program of tax credits for scholarships to some 13,000 students to attend private schools.

School choice is spreading because parents want the chance to get their child a better education than they receive in local public schools. Sometimes that enhanced opportunity is offered by religious schools, and the First Amendment does not allow the state to discriminate on the basis of religion.

13 comments:

trigger warning said...

These "classes" look to be as entertaining as gay rodeos:

https://vimeo.com/222114690

mardony said...

SAY WHAT?
"This will be great, if we get it done. And if we don't get it done, it's just going to be something that we're not going to like, and that's okay and I understand that very well."
Trump on Senate healthcare bill

mardony said...

A Time magazine with Trump on the cover hangs in his golf clubs. It’s fake.

Is Dear Leader a fake president*?
Calling "1984".

http://crooksandliars.com/2017/06/trump-has-fake-news-magazine-covers

mardony said...

The Health Care Hoax Has Been Exposed, Senator McConnell
"The bill is a cruel hoax that would help the wealthiest Americans at the expense of the poorest."

https://www.nytimes.com/2017/06/27/opinion/health-care-mcconnell-trumpcare-cbo.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

mardony said...

Betsy is all for:
"overturn(ing) states' Blaine amendments blocking state aid to schools with a religious affiliation."

Should Muslim children get state aid, from tax dollars, for vouchers to attend a Madrasa?

Should Muslim communities get state aid, from tax dollars, to build Madrasas?

Sez Betsy:
"School choice is spreading because parents want the chance to get their child a better education than they receive in local public schools. Sometimes that enhanced opportunity is offered by religious schools, and the First Amendment does not allow the state to discriminate on the basis of religion." Muslims should line up for their share.

Even though Jefferson insisted on a "wall of separation between church and state", lobbyists, evangelical forces, rightwing zealots and corporate entities including hedge funds, all want a piece of public education funding. And compliant courts are finding constitutional loop holes to allow it. e.g., check out the slippery technical Georgia tax credit scholarship ruling (cited by Betsy) the beneficiaries of which will be families sending kids to private christian schools. Thomas Jefferson mourns.

http://getschooled.blog.myajc.com/2017/06/26/breaking-news-georgia-supreme-court-rejects-challenge-to-state-subsidized-tuition-for-private-schools/

trigger warning said...

"Should Muslim children get state aid, from tax dollars, for vouchers to attend a Madrasa?"

Well, technically speaking, a madrasa is a seminary. I'm surprised a widely published intellectual wouldn't know that. But, in fact, some do teach subjects other than memorization of the Koran. And Gov Mike Pence's school voucher program did support madrasa education:

http://www.motherjones.com/politics/2016/12/mike-pence-voucher-program-religious-schools/

"Madrasa Tul-Ilm [is] an Islamic school, where 90 percent of its 225 students receive state voucher funding for their tuition, according to the school, to the tune of more than $1 million a year, making it one of the largest recipients of state voucher money. Thanks to the vouchers, the number of students attending MTI is now triple what it was in 2011."

The greminalist hits another home run.

:-D

mardony said...

Thank you, bigger warming, for making my point with your link. Satire is above your Oath Keepers' cognitive level.

Thanks to Pence and buddies, vouchers predominantly support religious schools, encourage resegregation, serve primarily whites, are likely to lead to worse educational achievement, support schools where creationism is taught, and have been laundered to support church construction projects. You can't have too much choice.

"...millions of dollars of the state education budget are subsidizing schools whose curricula teaches creationism and the stories and parables in the Bible as literal truth."

"Almost every single one of these (Indiana's) voucher schools is religious."

"Vouchers effectively served as a public bailout for the state’s Catholic schools."

"The Center for Tax and Budget Accountability, a Chicago-based think tank, recently concluded that because white children’s participation in the voucher program dwarfed the next largest racial group by 44 points, the vouchers were effectively helping to resegregate public schools."

"According to data from the state, today more than 60 percent of the voucher students in Indiana are white, and more than half of them have never even attended any public school, much less a failing one."

"A study by researchers at Notre Dame University published last year shows that in the first three years of the program, Indiana kids who left public schools to attend voucher schools saw their math scores decline in comparison with their peers who remained in regular public schools."

"... voucher schools are among the state’s worst-performing schools."

"Some of the fastest growth in voucher use has occurred in some of the state’s most affluent suburbs."

Mardony's favorite: "Father Jake Runyon noted that with help from the vouchers, the church would finally be able to fix the steeple on the building and get a new sound system."

And using tax dollars collected for public education, the construction of an entire madrasa may be next, and what's wrong with that?

trigger warning said...

Sp then, mardony is dead set against support for young Muslims attending the school of their choice. Interesting!

Thank you, Zit, for your courageous admission.

trigger warning said...

BTW, speaking of ConLaw and SCOTUS, rumor has it that the recent decision in Matal v Tam convinced the Washington Redskins' owner to remove the offensive part of the team name. Henceforth, they will be called simply "the Redskins".

mardony said...

toad ~
You can imagine what those Indiana voucherized kids are learning about climate change, and alchemy. Did you mail order your high school degree using one of Pence's vouchers?

trigger warning said...
This comment has been removed by the author.
trigger warning said...

Ask a "voucherized" Indiana Muslim.

:-D

mardony said...

bigger warming & toad ~
What part of this do you not understand?

"It is clear from extensive scientific evidence that the dominant cause of the rapid change in climate of the past half century is human-induced increases in the amount of atmospheric greenhouse gases, including carbon dioxide (CO2), chlorofluorocarbons, methane, and nitrous oxide. The most important of these over the long term is CO2, whose concentration in the atmosphere is rising principally as a result of fossil-fuel combustion and deforestation."

Letter from the American Meteorological Society to Rick (oops) Perry,, DOE Secretary and D undergrad student in veterinary anatomy