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In 2021, Watch What The Supreme Court Does With Philadelphia’s Ban On Christians Parenting Foster Children

It's clear the City of Philadelphia is far more anxious to punish the free exercise of religion than to serve its most vulnerable children.

By Yaakov MenkenThe Federalist

In 2021, Watch What The Supreme Court Does With Philadelphia’s Ban On Christians Parenting Foster Children

Not just foster care providers, but religious groups of all kinds are closely following the case of Fulton v. the City of Philadelphia. Indeed, all those who care about our nation’s children should be.

While this case before the U.S. Supreme Court to be decided in 2021 directly concerns the provision of foster care, by placing hypothetical arguments about non-discrimination ahead of the religious freedoms ensconced in the First Amendment — and ahead of children’s actual needs — the broader ramifications of the case threaten to force religion further from the public sphere.

In his dissent in Obergefell v. Hodges in 2012, Chief Justice John Roberts wrote:

The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. That disclaimer is hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demean or stigmatize’ same-sex couples.

Fulton v. Philadelphia demonstrates how right Roberts was to be concerned. The attorney for the city, Neal Katyal, claimed during oral arguments that a religious foster care agency, by following the prescriptions of the religion which it represents, would “stigmatize” LGBTQ individuals, especially children. Having asserted that traditional religious beliefs are bigoted and damaging, he thus argues that they must be prohibited in practice.

In particular, the city’s claim that the stigma is associated with Catholic Social Services’s provision of foster care cannot withstand even a cursory examination. Whatever feeling of harm or stigma might be involved, it would emerge from the biblical belief — which is supposed to be protected by the First Amendment — that same-sex relationships are forbidden; whether or not this teaching was applied to foster care would be essentially irrelevant. Yet the city, knowing that it can’t directly attack religion, claims that the damage occurs when a religious foster care agency conforms to those beliefs.

Taking the attack on religion a step further, Philadelphia equated religious diversity with mutual hostility: its lawyer claimed that foster care would be “balkanized” if various religious groups were each allowed to serve children in need consistent with their religious beliefs, working with supportive families seeking to partner with those agencies. Frankly, it’s quite scary to see such open hostility to free, diverse religious practice from a city government — and one could hardly seek more decisive proof that freedom of religion is, in fact, on trial in this case.

The threat here is clear, and not limited to Catholics. In Judaism, we believe it essential to raise a Jewish child to learn both our books and our observances. If applied consistently, the city’s argument would prohibit a Jewish agency from insisting upon placing a Jewish child in a Jewish home. Rather than demonstrating the First Amendment’s respect for different traditions and beliefs, Philadelphia is demanding universal conformity to state doctrine.

What is most troubling in all of this is that the city has lost sight of the ultimate goal: to serve children in need of foster care. There is a grave shortage of families willing to open their homes to foster children, and religious agencies, by working specifically within their faith communities, can expand that pool.

Plaintiff Sharonell Fulton is but one of many who are certified by Catholic Social Services and have room in their homes to care for children. The city is keeping these foster care providers on the sidelines because of CSS’s religious beliefs, offering only theoretical arguments about hypothetical harms to justify callous denial of homes to children in need.

As was clear at oral argument, no same-sex couple has been prevented from fostering or adopting by Catholic Social Services, or ever would be. Were such a couple to ever present itself to CSS, attorney Lori Windham told the court, CSS would help the couple to find one of the many other agencies that can assist them and better attend to their needs.

Based solely upon a far-fetched, theoretical claim of “stigma” that reflects hostility towards biblical beliefs, the city’s actions are therefore forcing dozens if not hundreds of actual (very non-theoretical) children to languish in group homes and institutional settings rather than being placed with loving foster parents.

The city has made its disregard for children’s actual needs quite obvious. Responding to the fact that Catholic Social Services has provided foster care to needy Philadelphia children for more than two centuries, long before the government was involved, Katyal argued that “whatever these [private] entities did before, like CSS, they never selected who cares for kids in city custody, applying state criteria.” In other words, the city claimed that whether these children are wards of the state is a more central consideration than whether they need foster care.

This is heartless, and even more fundamentally flawed. To be sure, the city has notargued that CSS provides an inferior service. It even acknowledged that CSS has been a “point of light” in the child welfare system. Yet the city also claims that closing down such an agency and preventing it from helping the more than 250 children in need of a foster home today would somehow be a net benefit for society.

So it is not merely true that Philadelphia wishes to squelch free religious practice — it is also clear that the city is far more anxious to punish the free exercise of religion than it is to serve the city’s most vulnerable children. The shocking part is that it was necessary to go all the way to the Supreme Court to ask for the obvious: that the city of Philadelphia should both respect different religious beliefs, and put the needs of children first.


Intellectual Property: Stealing is wrong, even if you’re Google

By George LandrithRed State

While the rest of the country enjoyed their Thanksgiving dinners and began their Christmas shopping, the big brass at Google had a lot to think and worry about over the long weekend.  

You may recall that earlier this year, Google was the recipient of a bipartisan grilling in Congress over its predatory business practices. The big tech goliath was unable to offer up even a semblance of a convincing defense, leading some to speculate that an antitrust bust-up was awaiting on the horizon.  

Over the past few months, those rumblings have turned into reality.   

First, in October, the Department of Justice announced a formal antitrust lawsuit, putting the full weight of the federal government on Google’s neck. Then, last week — just two days before Thanksgiving — a bipartisan coalition of state attorneys general announced plans for a second lawsuit, which may come this month (a third antitrust suit spearheaded by Texas is also in the works). It is very likely that by next summer, every state and federal division of the judicial branch will be pursuing the breakup of the search engine giant.  

But it may be the Supreme Court, traditionally the final stop on legal journeys, that strikes the first blow.   

Observers may recall that back in October, the Supreme Court heard oral arguments in a copyright infringement case regarding the shady origins of Google’s Android software. The lawsuit’s gist is that Oracle claims Google sticky-fingered Java source code developed by its subsidiary, Sun Microsystems, to build up Android OS — a multi-billion-dollar revenue generator that runs on millions of smartphones. 

Consider some of the most damning details.   

According to the lawsuit, Google stole what it refused to buy after Sun offered Google a three-year license to use its code. The deal would have cost Google $100 million. Google decided that, as Woody Woodpecker used to say, free was a much better price. 

This is an interesting argument. If Google initially sought permission to use Sun’s code, it implies that Google knew perfectly well the code wasn’t just theirs to take. One doesn’t ask permission to use the public sidewalk. One does ask permission to borrow the neighbor’s car — and if the borrower takes it for a drive without permission, everyone understands what that is. 

The Supreme Court appears to understand this point very well, which doesn’t look good for Google.  
 
As Justice Brett Kavanaugh put it: “You’re not allowed to copy a song just because it’s the only way to express that (particular) song.” In other words, the fact that Stairway to Heaven by Led Zeppelin is the only song that sounds like Stairway to Heaven doesn’t mean that people who didn’t write it have a right to record it and sell it just because they like the way it sounds. 

If they did so, everyone would understand a theft had occurred, and the thief would be held accountable. 

Justice Neil Gorsuch made the point that the existence of one avenue, however popular it may be, doesn’t prevent creators from finding new ones. The fact the Led Zeppelin wrote Stairway to Heaven and made a lot of money selling albums in no way prevented Stone Temple Pilots from writing Plush and selling lots of albums of their own.

Gorsuch’s reasoning explains why other mobile operators managed to create their products without using Java at all. Java wasn’t the only way into town, so to speak, as Google claims; the tech giant just refused to find a new path.  

While we likely won’t know the official decision until the summer, Google is likely sweating bullets.  

It’s one of the wealthiest companies in history, but it’s facing an unprecedented level of legal pressure due to two decades of bad behavior. From the outside looking in, it appears the courts are circling the wagons.   

Consumers need not worry. None of the services Google provides are irreplaceable innovations or at threat of disappearing in the case of a breakup. It’s even possible that, with the market’s largest digital predator subdued, a breakup would lead to a flurry of new digital services. 

The only people who have to worry are Google shareholders and employees. They’re looking at legal cases and potentially billions in losses. Those prospects would dampen anyone’s holiday season. 


Supreme Court May Void Individual Mandate, But Unlikely to Topple Obamacare

By Kevin DaleyThe Washington Free Beacon

The Supreme Court may strike down the Affordable Care Act’s individual mandate but appears poised to uphold most of the law against a constitutional challenge from a coalition of red states backed by the Trump administration.

A majority of justices were skeptical that a 2017 Republican tax bill endangered the entire statute. While that law created doubts about the continued legality of the controversial mandate to buy health insurance, other popular provisions, such as coverage for preexisting conditions, do not appear to be in danger.

The High Court’s new composition seemed to have little effect on the fate of Tuesday’s challenge. Justice Brett Kavanaugh telegraphed that he thinks the bulk of the health care law should stand even if the individual mandate is struck down. Justice Amy Coney Barrett raised doubts that one set of plaintiffs even had a right to be in court. Those developments follow dire warnings from Senate Democrats that Barrett’s confirmation would endanger health care coverage for millions of Americans.

The Court’s apparent direction greatly simplifies the health care agenda for President-elect Joe Biden. A decision striking down the ACA would send the new administration back to the drawing board on health care, while it faces the likely prospect of a GOP-controlled Senate. Biden favors a plan that would make government-funded health care available alongside private plans.

The case arose in December 2017 when congressional Republicans passed the Tax Cuts and Jobs Act. The law effectively zeroed out the individual mandate, setting the financial penalty for failing to purchase health insurance at zero dollars. The Supreme Court said in 2012 that the ACA’s requirement to buy health insurance could be upheld as a tax. In turn, a group of red states and a few individuals brought a fresh legal challenge. They reasoned that because the mandate is no longer generating revenue, it cannot be legitimated on tax grounds.

In a highly unusual move, the Trump Justice Department declined to defend Obamacare in court, so a group of blue states led by California intervened to do so.

The biggest issue in Tuesday’s case is the question of what happens if the mandate is unconstitutional. The answer turns on a legal doctrine called “severability,” or a general preference for preserving as much of Congress’s work as possible when courts find particular parts of a statute unlawful. Two conservative members of the Court, Justice Brett Kavanaugh and Chief Justice John Roberts, plainly indicated that they think the mandate can be severed from the ACA if it has been rendered unconstitutional by the tax law.

“Looking at our severability precedents, it does seem fairly clear that the proper remedy would be to sever the mandate provision and leave the rest of the Act in place, the provisions regarding preexisting conditions and the rest,” Kavanaugh said in a key exchange.ADVERTISING

Roberts had even more pointed words for Texas solicitor general Kyle Hawkins, who argued for the red states. The chief justice said the Court shouldn’t step in to scuttle Obamacare when the Republican Congress itself did not repeal the law, even as it zeroed out the mandate.

“I think, frankly, that they wanted the Court to do that,” Roberts said. “But that’s not our job.”

“Congress left the rest of the law intact when it lowered the penalty to zero. That seems to be compelling evidence on the question,” he added.

Critically, however, the chief justice did not give away his thinking on the continued legality of the mandate. He asked only about severability and whether the plaintiffs had a basis for being in court.

Donald Verrilli, the former solicitor general who defended the ACA in court for the Obama administration, appeared before the justices again Tuesday, this time on behalf of congressional Democrats. He noted that millions of people are covered under the ACA and that the entire health insurance sector has operated for years in compliance with its requirements.

“To assume that Congress put all of that at risk when it amended the law in 2017 is to attribute to Congress a recklessness that is both without foundation in reality and jurisprudentially inappropriate,” Verrilli said.

As to the legality of the mandate itself, the red states say it cannot be sustained as a tax if it doesn’t raise money for the government.

“The mandate as it exists today is unconstitutional. It is a naked command to purchase health insurance, and, as such, it falls outside Congress’s enumerated powers,” said Hawkins.

The liberal justices sparred with Republican lawyers on this point. Justice Elena Kagan questioned how a toothless mandate could amount to unlawful strong-arming.

“How does it make sense to say that what was not an unconstitutional command before has become an unconstitutional command now, given the far lesser degree of coercive force?” Kagan asked.

Justice Samuel Alito later countered that there aren’t other examples of a zero-dollar tax penalty in federal law, making the mandate suspect in its current form.

“Are you aware of any provisions in the [U.S. Code] in which Congress has purported to use its taxing power to say you must do this, and we’re going to tax it and we’re going to set the tax at zero?” he asked acting solicitor general Jeff Wall, who argued for the Trump administration.

Another issue is whether the plaintiffs even had a legal basis, called standing, for getting to court. In court papers, the blue states said that harm is a necessary prerequisite for a lawsuit, but a mandate penalty of zero dollars isn’t harming anybody.

“It is legally clear that absolutely nothing will happen to them if they choose to go without coverage,” the blue states wrote of the individual plaintiffs in court papers. Even if the individual plaintiffs don’t have standing, the red states say they do because the mandate effectively requires them to spend more on health care.

A decision in the case, No. 19-840 California v. Texas, is expected in the spring or early summer.


Religious Liberty Should Prevail

By Richard A. EpsteinThe Hoover Institution

This past week in Fulton v. City of Philadelphia, the Supreme Court re-entered the dangerous minefield at the junction of religious liberty and anti-discrimination. The current dispute arose when Philadelphia’s Department of Human Services announced that it would no longer refer children to Catholic Social Services (CSS) for placement in foster care because CSS refused to consider same-sex couples as potential foster parents. CSS was, however, prepared to accept into its foster care all children regardless of their sexual orientation. After prolonged negotiations with the city failed, CSS sued. It seeks, in the words of the Third Circuit, “an order requiring the city to renew their contractual relationship while permitting it to turn away same-sex couples who wish to be foster parents.” The Third Circuit upheld the position of the city.

Resolving this delicate confrontation requires a return to first principles. Let’s start with the First Amendment’s protection of the free exercise of religion, as elaborated in Justice Antonin Scalia’s majority opinion in Employment Division v. Smith. Alfred Leo Smith, a drug guidance counselor, was denied unemployment benefits after being terminated for consuming peyote, a controlled substance, as part of a religious rite. The court held that his religious beliefs do not “excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” The First Amendment did not require Oregon to accommodate Smith’s religious practice. Any neutral law of general applicability was acceptable, notwithstanding its disparate impact.

Notably, the word exercise is broad enough to cover not only Smith’s use of peyote but also CSS’s adoption policies. Accordingly, under no circumstances should Philadelphia be allowed to pass an ordinance that requires the Catholic Church to ordain women as priests, or to offer family aid services paid from its own funds to same-sex couples. The question in Fulton is whether CSS’s free exercise rights are forfeited when the city supplies public funds and matching services to CSS and the children it puts up for foster care.

The point is contentious. During oral argument, Justice Elena Kagan insisted that Philadelphia has a compelling state interest to eliminate all forms of discrimination against same-sex couples. Stanford professor Jeffrey Fisher, who represented two-nonprofit organizations that sided with the city, made a similar point by insisting that if Philadelphia lost this case, city police officers would be able to refuse to enforce certain laws to protect those same-sex couples just by citing their religious convictions.

Both of these claims miss the central point. The real risk of government abuse arises when the state exercises its exclusive power to enforce the criminal laws. Given that state monopoly power, state actors have a correlative duty to treat all persons equally and therefore are disallowed from bringing personal religious convictions to bear on criminal law enforcement.

The situation, however, is quite different whenever the government grants public funds to organizations to discharge some public purpose. This contest raises tension between a state’s independent regulatory authority and its ability to impose conditions on such grants. It is often incorrectly asserted that the government has extensive freedom of choice when it puts “its” money behind a particular program, such that it can act in an “entrepreneurial” fashion even if it cannot regulate private church conduct. As one observer suggested, “[r]eligious groups typically have little leeway to shape government programs that they object to.”

These oversized claims for state control should be roundly rejected. The government does not have some private stash of cash to dole out on whatever terms and conditions it sees fit. Virtually all of its money comes from taxation, fines, and fees. Those monies are paid into the city by both supporters and opponents of the city’s ban on CSS. Just as it would be wholly inappropriate to exclude non-religious programs from participating in the city’s foster programs, so too is it wholly inappropriate to exclude the religious organizations solely because of their religious beliefs. Excluding either group from the class of recipients while forcing them to make contributions into the common fund creates an illegitimate cross-subsidy from groups without political power to groups with it.

That fundamental fiscal imbalance implicates the doctrine of unconstitutional conditions, which supplies the much-needed counterweight to inappropriate exercises of state monopoly power. The parallel common law rule holds that any public utility or common carrier has, by virtue of its monopoly power, the duty to offer services to all customers on fair, reasonable, and nondiscriminatory terms. The public law doctrine of unconstitutional conditions applies that principle to the strongly entrenched and indisputable state monopoly powers of regulation and taxation. But the state should have no power to regulate parties in competitive industries, where there are many alternative sources of supply. Accordingly, the state cannot license private Catholic hospitals only if they are willing to perform abortions at will, which can be done at many other facilities.

Similarly, whether the issue regards dispensing cash or using public facilities, the state cannot use its monopoly power to impose viewpoint conditions on public grants. Thus, no one thinks (I hope) that the city of Philadelphia can use its power to prevent CSS or its foster parents from using city streets to render their services unless they accept same-sex couples for foster care. The basic test is whether the condition that the city government wants to impose is designed to improve the overall efficiency of public services, or if the condition is instead intended to serve as a form of viewpoint discrimination. Thus, the city can require all vehicles that CSS uses on public roads to meet the uniform standards of vehicular inspection, but it cannot condition CSS’s use of vehicles on the alteration of its religious beliefs and practices.

It is painfully clear that the state cannot identify any efficiency justification for excluding CSS from its foster care program. The city operates a useful platform that brings together parents and other guardians with children in need of foster care through a wide array of organizations. The more choices on both sides of the platform, the better the system. We know that CSS increases the supply of foster care, which reduces the risk of shortages of foster placements. It also allows many parents or guardians seeking a Catholic family to obtain their first choice of foster parents. In oral argument, Justice Samuel Alito noted that CSS has never had to turn down an applicant for foster care who desired to place a child with a same-sex couple. Instead, CSS acted a liaison with other groups to secure those children with a satisfactory placement. Why should anyone oppose a system that leaves everyone better off, simply because one provider among many insists on adhering to its deeply held religious beliefs? There is no interest, let alone a compelling state interest, to undermine a matching program that has worked well for decades.

Fulton follows on the heels of the 2018 Supreme Court decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which threw out a set of penalties that the Colorado Commission imposed on Jack Phillips, a devout Christian who refused to bake a wedding cake for a same-sex couple on religious grounds. In a most unsatisfactory opinion, Justice Anthony Kennedy chastised the commission only for its boorish behavior, not its substantive actions. Thus in the present case, the Court of Appeals for the Third Circuit had an easy hook on which to uphold the city, which acted with proper professional candor in dealing with CSS, unlike its Coloradan counterpart. But the ultimate issue in both cases is not about manners. It is about the abuse of monopoly power (exercised with civility or otherwise).

Masterpiece offers the converse situation to Fulton. In Masterpiece, a competitive market eliminated the need for Colorado to force any merchant to take on any customer, given that a host of merchants were eager for the same-sex couple’s business. But in Fulton, the state’s monopoly position requires it to apply the nondiscrimination rule for the benefit of CSS. In their effort to counter this contention, both Justices Stephen Breyer and Elena Kagan argued that allowing for discrimination against same-sex couples might open the way to allowing discrimination on the grounds of race. In my 1992 book Forbidden Grounds,I argued that private parties have the right to engage in any form of discrimination in private competitive markets, including discrimination by race—in part because that principle provides a clean justification for private affirmative action programs. But even if that argument is rejected emphatically for public institutions, recall Justice William Brennan’s 1984 opinion in Roberts v. United States Jaycees, which upheld Minnesota’s antidiscrimination law as applied to a large public club, only to insist “that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the state.”

The foster care arrangements fall into just this category. This implies that CSS, like all other qualified agencies, may choose foster parents on whatever grounds it wants, race and religion included. The expectation is that the Supreme Court will reverse the Third Circuit. Hopefully, it will also overrule Smith.


From Bork To Barrett—It’s Been a Long Time Coming

By Peter RoffNewsweek

The confirmation of then-Judge Amy Coney Barrett to a lifetime appointment on the United States Supreme Court has been a long time coming. All told, nights and weekends included, it’s been, give or take a day, about 33 years.

In 1987, when Justice Lewis Powell announced his resignation from the high court, the Democrats went to war. They made federal judicial confirmations—hitherto staid, formal and collegial affairs—into battle royales.

The opening shots were fired by the late Sen. Edward M. Kennedy of Massachusetts, who took to the Senate floor to assault the character of the man chosen as Powell’s replacement: Judge Robert Bork, a former U.S. solicitor general and distinguished professor of law at Yale.

Thus, the judicial nomination process was forever changed. Ever since, each party has blamed the other for starting it all. In reality, most of the blame lies with the Democrats, who, after the politics of personal destruction proved so effective against Bork, have repeatedly used smears, insinuations and arguments about character to try to keep conservative originalists off the federal bench. Sometimes, when Democrats controlled the Senate, they wouldn’t give Republican nominees the courtesy of even a hearing. Contrary to what you’ve heard, it didn’t start with Merrick Garland—ask Miguel Estrada, Priscilla Owen or any of the other George W. Bush judicial picks whose nominations to the various appellate courts were held up or blocked completely due to partisan concerns.

Each time the battle over the courts escalated, it was Democrats who almost always drew first blood. It was Democratic Senate Majority Leader Harry Reid who made it possible to force lower court confirmations through with 51 votes, rather than 60, and who used that power to stack the U.S. Court of Appeals for the D.C. Circuit—second in influence only to the U.S. Supreme Court—with appointments made by President Barack Obama.

Justice Amy Coney Barrett sworn in by
Justice Amy Coney Barrett sworn in by Justice Clarence ThomasTASOS KATOPODIS/GETTY IMAGES

Now, over the screams, complaints, wailing and gnashing of teeth from progressives who fear what is in store for their agenda, Judge Amy Coney Barrett has become Justice Amy Coney Barrett, thanks in no small part to the way these same opponents rigged the system to operate in their favor. There’s some justice in that.

Everything about her nomination and confirmation was legal, fair and according to the rules as they now are—thanks to Kennedy, Reid and others who corrupted the process. Fortunately for them, Justice Barrett—while she provides the crucial fifth vote to establish something of an originalist majority, as well as being the sixth vote for a center-right one—has not taken her new post with the intention of rewriting the Constitution according to her personal values.

She made that clear after she took her oath of office, saying:

“It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them. Federal judges don’t stand for election. Thus, they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government.”

The Democrats still intend to pack the high court, if they are able to do so. If able, they will attempt to add enough justices to allow the court to make policy for a generation or more. They will find within the Constitution, no doubt, the rights to health care, free public education, taxpayer-funded abortion on-demand, strict regulation and limitation of the private ownership of firearms, compulsion of workers to join unions and whatever else is on their political agenda that doesn’t pass muster with the voters. Instead of pausing, they’ll push on through, eliminating the restrictions on government and expanding its reach. If they succeed.

If they don’t succeed, America finally has the chance to put part of the genie back in the bottle, and to restore to the democratic process the importance of the individual that the reliance on the courts as the last word on everything has increasingly obscured. The elevation of Justice Barrett gives us one more shot at getting it right. Let’s hope, for all our sakes, that the court seizes the opportunity.


The Scalia Family

The lasting influence of the legendary Supreme Court justice

By Matthew ContinettiThe Washington Free Beacon

scalia acb
Getty Images

“Enough to field a baseball team.” That was the late Justice Antonin Scalia’s response when asked how many children he had. And he and his wife Maureen’s nine children have themselves parented, as of this week, 40 grandchildren. How big is the Scalia family? So big that, at the moment, it would not be allowed to hold an in-person gathering in the justice’s home state of New Jersey.

Even that count might not be accurate. Watching Judge Amy Coney Barrett testify before the Senate Judiciary Committee this week, I couldn’t help thinking that the Scalia family is larger than the individuals directly related to him. In both her September 26 remarks at the White House and her October 12 opening statement to the committee, Barrett spoke of the influence Scalia had on her life and identified herself with his approach to the law. “His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were,” Barrett told the senators. “Sometimes that approach meant reaching results that he did not like. But as he put it in one of his best-known opinions, that is what it means to say we have a government of laws, not men.”

Whether it was for the students he taught, or the clerks he hired, or the lawyers he mentored, or the readers of his work, Scalia modeled a form of jurisprudence rooted in the text of the Constitution and in the American political tradition. His approach came to be called originalism (in matters of constitutional interpretation) and textualism (in matters of statutory interpretation). But his legacy is far greater than these contributions to legal terminology and methodology. What this son of an Italian immigrant accomplished was nothing less than a revolution in the law—and the promulgation of a distinctly American conservatism that is needed now more than ever.

It was Scalia who was among the first faculty advisers of the Federalist Society, and who addressed the society’s first national gathering in 1982. Along with his colleagues Robert Bork and Laurence Silberman, Scalia stood for the idea that judges should interpret the Constitution and statutes based on their original public meaning. The clarity of his argument, the force of his intellect, and the charm of his conversation enlarged the audience for his views. That audience exploded in size after President Reagan elevated him to the Supreme Court in 1986. Over time, the strength of originalism’s reputation in legal circles became so overpowering that some liberal judges, such as Justice Elena Kagan, felt it necessary to describe themselves, however ironically, as “originalists.”

Scalia pointed to his decision upholding the constitutionality of flag-burning as proof that originalism is not a mask for conservative politics. And there have been plenty of decisions—most recently Justice Neil Gorsuch’s opinion in Bostock—where self-described originalists and textualists arrived at places conservatives did not expect. But there is nonetheless an integral relationship between originalism and conservatism. What American conservatism seeks to preserve is the institutional and philosophical inheritance of the American Founding. This inheritance is codified in our enabling documents: the Constitution (as amended), the organic laws of the United States (which include the Declaration of Independence and the Northwest Ordinance), and the Federalist Papers. It is through fidelity to these words, as the Founders understood them at the time, that conservatives defend the constitutional structure and the individual freedom it secures.

Originalism has turned out to be more than a legal doctrine. It is the common ground of American conservatism. For years, the right has tried to define a “constitutional conservatism” that would serve as the political analogue to originalism. That project has been overshadowed by the rise of national populism. But it is worth noting that the current president won his office in no small part because he pledged to nominate judges in the mold of Scalia and approved by the Federalist Society. And his most enduring legacy will be his appointments to the federal courts.

It would be difficult to name other Supreme Court justices who have had such a galvanizing effect on American politics—and who continued to play such important roles after their deaths. What accounts for Scalia’s iconic stature? The latest collection of his writings, The Essential Scalia, edited by Judge Jeffrey S. Sutton and Edward Whelan, offers some clues. “Nino loved ideas—thinking about them, talking about them, arguing about them, as well as writing about them,” Justice Kagan writes in her introduction. “That love may explain why he found it so natural to befriend colleagues with whom he often disagreed (yes, like me).” Scalia’s ability to depersonalize intellectual debate was a function of his self-confidence and sense of humor. His convictions were the result of deep reflection. But he was more than happy to defend them, and to explain why you were wrong.

What comes across most, though, is the quality of Scalia’s writing. It is clear, direct, witty, lapidary, memorable. Scalia’s opinions and dissents are famous for certain lines—”this wolf comes as a wolf”; “What Is Golf?”—but on second reading it is the way he develops his argument that most impresses. And he always makes a perfect landing. “Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem,” he wrote in Heller (2008). “That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”

These aren’t judicial decisions. They are essays. And like great literature they will reverberate far into the future. As Antonin Scalia’s extended family, biological and philosophical, continues to grow.


Joe Biden Takes a Dark Turn on Blowing Up the Court

By CHARLES C. W. COOKENational Review

Democratic presidential candidate Joe Biden addresses reporters in Las Vegas, Nev., October 9, 2020 (Kevin Lamarque/Reuters)

It gets worse. For weeks, Joe Biden has refused to answer whether he intends to blow up the United States Supreme Court on the preposterous grounds that, if he does, journalists will write about it. Now, he adds that voters “don’t deserve” to know his position.  This transmutes an untenable position into a downright nefarious one.

Biden’s defenders have been trying to draw some equivalency between the threat of his “packing” (read: destroying) the Supreme Court and the Republicans’ push to appoint Amy Coney Barrett to replace Justice Ginsburg. In and of itself, this is ridiculous: The Republicans are in control of the White House and the Senate, and, in acting now, are using a process that has been in place since 1789 and echoing a norm that has obtained throughout American history. But the equivalence also fails on its own terms, in that neither President Trump nor any of the 53 Republican senators are keeping any secrets about their plans. Trump has been open about his nomination from the start; so have the 51 Republicans who intend to vote yes; so has Susan Collins, who intends to vote no; and so has Lisa Murkowski, who opposes the process but says that she may vote yes if it comes to the floor. There is no parity here. One party is going about the business of government with the branches that it presently controls; the other party is threatening to smash those branches up.

Biden’s stance essentially inverts the way the American system is supposed to work. Going into the election, the Democrats’ position is that it would be unseemly for candidates for our electedbranches to answer questions about what they will do, but that it is imperative that candidates for the judicial branch be expected to say ahead of time how they intend to rule in major cases. Why is Biden, who knows better, indulging this? I suspect it is because he knows full well that what is being proposed by his party is monstrous and so hopes to sidestep it entirely.

Biden’s defenders have been trying to draw some equivalency between the threat of his “packing” (read: destroying) the Supreme Court and the Republicans’ push to appoint Amy Coney Barrett to replace Justice Ginsburg. In and of itself, this is ridiculous: The Republicans are in control of the White House and the Senate, and, in acting now, are using a process that has been in place since 1789 and echoing a norm that has obtained throughout American history. But the equivalence also fails on its own terms, in that neither President Trump nor any of the 53 Republican senators are keeping any secrets about their plans. Trump has been open about his nomination from the start; so have the 51 Republicans who intend to vote yes; so has Susan Collins, who intends to vote no; and so has Lisa Murkowski, who opposes the process but says that she may vote yes if it comes to the floor. There is no parity here. One party is going about the business of government with the branches that it presently controls; the other party is threatening to smash those branches up.

Biden’s stance essentially inverts the way the American system is supposed to work. Going into the election, the Democrats’ position is that it would be unseemly for candidates for our electedbranches to answer questions about what they will do, but that it is imperative that candidates for the judicial branch be expected to say ahead of time how they intend to rule in major cases. Why is Biden, who knows better, indulging this? I suspect it is because he knows full well that what is being proposed by his party is monstrous and so hopes to sidestep it entirely.

Biden’s argument in this clip is unequivocal. He agrees that the idea of “packing the Supreme Court” is an outrageous “power grab.” He suggests that it takes people of courage to stand up to their own party when it begins to flirt with such outrageous propositions. And, most important of all, it is clear from this clip that there is nothing “different” about this debate in 2020 than there was back in 2005. By his own terms, Biden agrees with FDR that the Court was “thwarting” the government’s agenda. By his own terms, he is aware that that government had won in a landslide. And yet, despite this, he understands that the planned remedy was disgraceful. FDR, Biden says, was “corrupted by power in my view,” and his “court packing” plan served as a good reminder of how “power corrupts and absolute power corrupts absolutely.” What was necessary — what Biden explicitly wanted “entered into the record” — was that “statesman” stand against “political exigency.”

A good example of such a statesman, Biden said, was . . . well, Joe Biden.

Where is that man today?


What’s Really at Stake in 2020

Ruth Bader Ginsburg, the Supreme Court, and the future of American democracy

By Matthew ContinettiThe Washington Free Beacon

The death of Ruth Bader Ginsburg has clarified what is at stake in the 2020 election. It is not, as some believe, democracy itself. Nor is it, as others assume, our continued existence as a nation. Democracy will survive Donald Trump, and the United States of America will outlast Joe Biden. The question that 2020 will help to answer is what sort of democracy, and what sort of nation, America will be as it prepares to enter the second quarter of the 21st century.

The reaction to Ginsburg’s death, and to Republican plans to fill her seat on the Supreme Court, underscores the choice before the electorate: Does it prefer to live in a democratic republic ordered toward the principles of the Founders and the constitutional structure they designed to protect individual liberty? Or would it rather dwell in a plebiscitary democracy where the original meaning of the Constitution, when it is not explicitly repudiated, is politely overlooked in order to satisfy ever more radical egalitarian demands?

Needless to say, the answer is up in the air, and has been for some time. But we may be nearing a settlement, one way or another. The civil unrest of the past several months has made unignorable the existence of a large body of opinion that holds something is terribly wrong with America as founded, something that cannot be redeemed, and that American history and American institutions must be drastically revised to atone for the injustices committed against racial minorities. President Trump, in his inimitable way, has made the opposite argument, and called for a renewed appreciation of the American story and a resurgence of national pride.

Ginsburg’s passing heightened the tension. Suddenly an abstract cultural debate was transformed into a concrete political-legal struggle, and the prospect of lasting victory for one team (Trump and Mitch McConnell’s) looked real. The fight over the Supreme Court vacancy Ginsburg left behind also illuminated the lengths to which some progressives are prepared to go to make real their vision of the future. And it is in their openness to institutional upheaval that the real import of this election may be found. If enacted, the measures these Democrats propose would warp our constitutional system. They would turn the American government into a creature far different from the one the Founders made. This would be the upshot of the “structural reform” that, until the last week, lived mainly on Twitter and in the heads of policy wonks.

These Democrats say that, if President Trump’s nominee to replace Ginsburg is confirmed, and next year brings a Democratic president and a Democratic Senate, then the first order of business for the new government, in the middle of a pandemic and a troubled economy, will be abolishing the legislative filibuster and packing the Supreme Court by adding anywhere from two to four justices. Such a move, which even the greatest president of the 20th century was unable to achieve, would polarize this country even more than it already is, and delegitimize the Court in the eyes of millions. But it is just the start of what some on the Democratic left would like to accomplish.

The Electoral College has been on the chopping block since 2000. If it goes the way of the dodo, presidential campaigns thereafter will be determined by who has the greatest allegiance in the biggest cities of the largest states. To override the supposed Republican advantage in the Senate, where every state enjoys equal representation, some progressives would grant statehood to Washington, D.C., and to Puerto Rico, and maybe Guam and American Samoa while they’re at it. These changes would make it much easier for Congress to eliminate private health insurance, enact universal vote by mail, “decarbonize” the economy, grant citizenship to illegal immigrants and voting rights to noncitizens, suppress political speech, resume taxpayer funding of abortion, and cross out the Second Amendment. The sheer number of bad ideas in play would be overwhelming.

Now it is true that at least the first item on this agenda would be debated according to the present rules. And the multiple veto points within the American kludgeocracy would no doubt interfere with, and sometimes upend, the boldest plans of the progressive Democrats. It is also the case that incorporating new states gives rise to challenges both constitutional (are we really willing to grant the remaining residents of the federal District of Columbia—the first family—three electoral votes?) as well as political (does Puerto Rico even want to be a state?). But the very fact that we are having this conversation at all—and that Biden, at this writing, has neither ruled out the court-packing scheme nor said whom he would nominate to the Court—ought seriously to worry defenders of the Founders’ Constitution.

In 1963, in the first chapter of The Conservative Affirmation, Willmoore Kendall offered his definition of American conservatism. Conservatives, Kendall wrote, oppose the “Liberal Revolution” that would replace representative government with majoritarian democracy:

Put an end, the Liberals insist, to ‘rural overrepresentation’ in the lower house of Congress and in the state legislatures—bringing them in line with the principle one-man one-equal-vote. And that principle, once adopted (it is French political philosophy, not American), must call finally for abolition even of the U.S. Senate as a check on majorities, and would in any case make the House the creature of numerical majorities at the polls. Abolish the electoral college, the Liberals insist further, and so make the President also the direct agent of the popular majority. Reform the party system, the liberals insist still further, so that each of our parties shall be programmatic, ideological—like those of the ‘real’ democracies in Europe—and that the two parties together shall submit, at election time, a genuine choice to the electorate. Abolish the filibuster—so runs the next point in the program—because it frustrates, serves no other function except to frustrate, the will of the majority. Rescind the seniority-principle in congressional committees, the program continues; it also obstructs the will of the majority. Now give the Liberal attackers their way on all these points, and the form of government explicated in the Federalist Papers will be no more.

That is what 2020 is about.


Democrats Cross the Line on Judges

By Peter RoffNewsmax

Leave it to Michael Barone to point out to us all what should be obvious: It’s the Democrats, not the Republicans, who are being hypocrites when it comes to filling the latest vacancy on the United States Supreme Court.

Up to now, all you’ve heard from the mouthpieces of the mainstream media and the Democratic Party is that, under rules established by the Republicans during the Obama administration, the Senate should not vote on President Donald Trump’s nomination of a judge to succeed Justice Ruth Bader Ginsburg this close to a presidential election.

This is wrong on many fronts. First, there is no such rule, at least none formally adopted by the Senate as part of its procedures. Second, any such rule would conflict with the president’s Article II authority in the Constitution to nominate members of the High Court. Third, the last time a nominee was confirmed close to an election when the presidency and Senate were controlled by different parties was in the late 19th century.

There’s a lot more to it than that, but you get the idea. In this case, with the GOP and the presidency both in the hands of the Republicans, it is natural, even essential that both move to nominate and confirm a new Justice as quickly as possible. Leave it to Barone, who knows more than just about anyone else writing today about American politics that “Democrats are the ones being inconsistent.”

“If you think a president’s nominee is entitled to a vote from an opposition Senate, then a fortiori, you must think the nominee is entitled to a vote from the [president’s own] party’s Senate,” he wrote correctly. The hypocrites in this instance are every current Democrat in the U.S. Senate who demanded the GOP majority allow the confirmation of Merrick Garland to the High Court following the untimely death of Associate Justice Antonin Scalia.

Those like Minority Leader Chuck Schumer, who demanded Garland get a vote and are now trying to find a way to block the Trump nominee—expected to be announced at 5 p.m. Saturday—are playing a desperate political game designed to convince their funders and their base that they’re on top of the situation.

Schumer and Pelosi
U.S. House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) walk together following ceremonies honoring late U.S. Supreme Court Justice Ruth Bader Ginsburg at the U.S. Capitol on September 25, 2020 in Washington, D.C.JONATHAN ERNST/GETTY

There’s little they can do to stop the process from moving forward. That’s because former Senate majority leader Harry Reid decided to abolish the filibuster for judicial nominations below the level of the Supreme Court. That allowed Barack Obama and the Democrats to pack the nation’s second most important court—the U.S. Court of Appeals of the D.C. Circuit—with judges who favored their view of the Constitution. Once in the majority, and to no one’s real surprise, the GOP went on to abolish the filibuster for nominees to the High Court as well.

The Democrats, whose frustration is causing them to lash out, are promising to leave no stone unturned in their attempt to upend Trump’s coming nomination. It’s almost certain they’ll find ways to slow its progress through the Senate Judiciary Committee and on the Senate floor, perhaps in hopes some last-minute bombshell might delay the vote until after the Nov. 3 election. House Speaker Nancy Pelosi has threatened to launch impeachment proceedings against the president if he moves forward—a further lowering of the bar her party will live to regret—while other members of the House are contemplating the introduction of legislation reducing the tenure of a Supreme Court Justice to 18 years.

That last idea would require a constitutional amendment, something its proponents seem not to have figured out. If they wanted to be clever, they could perhaps enact a law saying Justices could continue to serve but could no longer be paid after 18 years—which would be within Congress’s purview but would likely be ruled unconstitutional.

The most damaging threat, one that many Democrats have made, is the one that involves “packing the Court.” Fearful of losing decisions on controversial issues like abortion, health care, unionization, taxes and gun rights by 5-4 or 6-3 margins for at least the next few years, there are some calling for the size of the Court to be increased to twelve or sixteen members, which could be accomplished by a change in the statute and would not require a constitutional amendment.

Again, the hypocrisy of this proposal is staggering. Back in the 1990s, Republican House majority whip Tom DeLay proposed that the House take up the impeachment of several federal judges who had issued rulings that were, in his opinion and the opinion of others, outrageous. For this DeLay was slammed by the liberal press and by the Democrats who attempted to unduly influence the independence of the judiciary. Yet many of those who complained about that then are cheerleading, if silently, the talk of creating an insurmountable liberal bloc on the Supreme Court that will lock in as constitutional anything Democrats from Joe Biden to Bernie Sanders to Alexandria Ocasio-Cortez can come up with. If America ever does become a “banana republic,” as some liberals have charged it has become under President Trump, it will be because the progressives first took control of the Court by special means and not through the exercise of the democratic process.


SCOTUS To Rule On Charge That Google Success Was Built On Someone Else’s Intellectual Property

By Peter RoffTownhall Finance

Larry Dean is not as famous as he deserves to be but, as the man who developed the code that allows automatic teller machines to accept cards from other banks and outlets, he birthed a revolution in banking that forever changed the way people shop and get cash. His innovation allowed debit cards to function like credit cards, taking money directly from accounts and pushing the nation and world closer to a cashless economy.

Dean’s innovation made banking easier for millions. The application programming interfaces – the APIs – he developed were protected by copyright, meaning his intellectual labors produced great wealth. Outside Atlanta, he built Dean Gardens, a 33,000 square-foot, 15-bedroom home was so extravagant the annual up-keep alone cost $1.5 million. Infamous for the iconic “Liberace Meets Napoleon” style later imposed by Dean’s son – who lived there until 1994 – it featured a Moroccan theater, 24-karat gold sinks, a gallery of Hawaiian art, 13 fireplaces, an 18-hole golf course, and a 14-seat dining room whose most prominent feature was a wall-sized aquarium known as the “Predator Tank.”

This monument to conspicuous consumption, which might have given even pre-presidential Donald Trump pause, was bulldozed into rubble ten years ago. What endures is his code which, thanks to a legal push by Google seeking to eliminate the copyright protections coders enjoy for the APIs they develop might make innovators like Dean a thing of the past. 

Whether that happens is in the hands of the United States Supreme Court which, in a matter of weeks will finally hear oral arguments in the matter of Google v. Oracle, a landmark case that will decide the course of intellectual property development going forward. If a majority of the justices side with Google, then future innovations like what Dean wrought will likely be few and far between. 

The case stretches back over a decade. At one time, hard as it may be to believe, Google was losing out to BING in the critical mobile search engine market while the Apple iPhone was beating its brains out in the competition among smartphones.

Seeking to improve its competitive position, Google took 11,500 lines from Java’s API coding which the company used to pay to use to construct the Android mobile operating platform, installing its search engine as the default option. As Android grew more popular, so did the Google search engine, creating a boom for the company without, the suit alleges, paying licensing fees for the use of Java to its owner Oracle.

Google does not dispute it took the code. What its briefs do argue is that these types of software APIs may not be copyrightable and, even if they are, that Oracle cannot force them to pay for using it because what it did is covered under the fair use doctrine – and copyright law exception often used when news stories are reposted and circulated for comment but seldom in commercial situations.

As even those who are not lawyers may recognize, Google’s interpretation of the copyrightability of software and the fair use doctrine as applied in this situation cannot be sustained by historical and legal precedent or by common sense, not that it bothers the biggest of big tech very much.

Google’s layers have already admitted the company “doesn’t care much about precedent or law” when it comes to copyright. When the company didn’t like the licensing terms offered to it by Sun Microsystems (then the owner of Java) Adam Rubin, the father of Android, bluntly wrote in an e-mail the company would simply “do Java anyway and defend our decision, perhaps making enemies along the way.”

Being big doesn’t allow you to ignore the law. Google’s lack of concern for intellectual property doesn’t come as a surprise – some have argued its business model depends on using the IP of others without paying for it. And the court would do well to note that others have made similar complaints in the past including the American Association of Publishers, which settled a case alleging Google has posted books online with the permission of the authors, a lawsuit by PayPal arguing an ex-employee turned over trade secret IP used to construct Google Wallet, and a suit settled with Viacom over videos posted without permission to YouTube.

These issues persist, in part because of the lack of clarity in the law protecting intellectual property and because the white shoe lawyers employed by big tech make fortunes of their own finding, exploiting, even creating loopholes that end up exploiting consumers and inventors alike. The Supreme Court is being asked to slam the door on this kind of exploitation and should.

No one likes government interference in the marketplace or the court making law from the bench but that is not what a decision favorable to Oracle would do. A decision favorable to Google would set a precedent adversely affecting software development and every other industry that relies on innovation and creativity to maintain and enhance its market petition. For the sake of private property and our nation’s founding principles, the court must come down firmly on the side of protecting intellectual property rather than affirm the idea that loopholes exist allowing big tech to take the innovations of others for their use without compensation or consent. That’s not the American way. 


The GOP Doesn’t Need Litmus Tests for Judges

By Peter RoffAmerican Action News

USCapitol via Wikimedia Commons

The next election will determine the direction of the United States Supreme Court and have a lot to say about its future. Given the outsized role its decisions play in the political life of the nation, that’s important and an issue worth voting on.

The court makes policy and law from the bench. Those who wrote the U.S. Constitution believed those functions were best left to the Congress, the president, and the states. To change that, to limit the ability of the justices to usurp the role of our elected representatives requires the addition of a justice or two who believe they are constrained by the law.

If Donald Trump wins, that’s the likely outcome. Given the precarious health of Justice Ruth Bader Ginsburg, he’ll probably get at least one appointment in his second term. And if that happens, and Chief Justice John Roberts is no longer the deciding vote on key cultural and legal matters, his recent flirtation with the court’s liberal wing might come to an end.  It’s unlikely he’ll want to be on the losing side of decisions that come down 5-to-4.

If Joe Biden wins, things will go in the opposite direction, especially if Republicans lose control of the U.S. Senate in November. Then, free of any restraint the filibuster might have imposed, the Democrats could easily pass through Congress legislation packing the court with so many new members the center-right majority currently in place would quickly become a distant memory.

In that world, expect the most radical of ideas to be affirmed by a majority of 2-to-1. The new Biden judges would side with existing liberals to find within the Constitution everything from the right to abortion on demand at any time during pregnancy up to and including the onset of labor, the right to universal healthcare, free education, a guaranteed national income, and the abolition of the private ownership of most firearms. The democratic process would be subverted by activist judges more concerned about results than the law.

It would be the tipping point leading to the downfall of the American system. Accomplished quickly if not quietly, it would perpetuate the advance of progressivism for a century if not more. Those opposed to that outcome should tread carefully so as not to help the enemies of liberty get what they want. 

Missouri GOP Sen. Josh Hawley, for some time considered one of the bright lights of the party’s future, has weighed in on this discussion in a big way. A state attorney general before winning his seat in the U.S. Senate he recently told The Washington Post he would “only vote for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.”

“By explicitly acknowledged, I mean on the record and before they were nominated,” he added. “I want to see on the record, as part of their record, that they have acknowledged in some forum that Roe v. Wade, as a legal matter, is wrongly decided.”

Taking that position publicly is, as one prominent conservative leader told me privately, “destructively stupid.” As a practical matter, more than one pro-life activist brought to my attention, on that one point Hawley could have voted enthusiastically to confirm Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter while being forced to oppose adding Clarence Thomas and Samuel Alito to the high court.

Admittedly our confidence in some of our judicial nominees has been misplaced. Dwight Eisenhower bungled things several times, not just by appointing Earl Warren as chief justice. Nixon, Reagan, and both Bushes made appointments they’d probably have liked to reconsider after they joined the court. The vetting process before the nomination is extremely important and must continue. Trump’s idea to release a list of potential nominees sets a precedent every other presidential candidate should follow. But vetting and litmus tests are two extremely different things. One has its place and one doesn’t, at least not among those who say they are proponents of intellectual freedom. 

Hawley’s newfound insistence loads the gun the progressives will use, in the metaphoric sense, to shoot any nominee who’d possibly be any good from a pro-life, limited government, strict constitutionalist perspective. The senator’s heart may be in the right place, but the GOP is not the party that marches in ideological lockstep on every issue. That’s the other team. They’re the ones who use emanating penumbras to find things in the Constitution that Madison, Hamilton, and others didn’t put into it. They’re the ones who place political, social, and economic outcomes over the rule of law. That’s a major difference between us and them and Trump and Biden.


How the Supreme Court’s DACA Decision Harms the Constitution, the Presidency, Congress, and the Country

According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult -- especially for their successors.

By JOHN YOONational Review

DACA recipients and their supporters celebrate outside the U.S. Supreme Court in Washington, D.C. June 18, 2020.  (Jonathan Ernst/Reuters)

Suppose President Donald Trump decided to create a nationwide right to carry guns openly. He could declare that he would not enforce federal firearms laws, and that a new “Trump permit” would free any holder of state and local gun-control restrictions.

Even if Trump knew that his scheme lacked legal authority, he could get away with it for the length of his presidency. And, moreover, even if courts declared the permit illegal, his successor would have to keep enforcing the program for another year or two.

That incredible outcome is essentially what happened with the Supreme Court decision last week in Department of Homeland Security v. Regents of the University of California (the latter being my employer, I might add). Regents blocked President Trump’s repeal of the 2012 Deferred Action for Childhood Arrivals (DACA) program, which halted the deportation of aliens brought to the U.S. illegally as children, and a parallel 2014 program that suspended the removal of their parents (DAPA). Until the Trump administration goes through the laborious result of enacting a new regulation to undo DACA and DAPA, approximately 6 million aliens can remain in the U.S. in defiance of federal immigration statutes.

While supporters of broader, more humane immigration policies (among whom I count myself) may have welcomed the result, they may well regret the Court’s disruption of executive power. President Barack Obama could issue his extralegal visa programs for children and their parents aliens by simple executive fiat, according to Chief Justice John Roberts and four liberal Justices (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), but President Trump had to pretend the order was legal and use the slow Administrative Procedure Act to reverse them. “Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients,” Roberts found, DACA “could not be rescinded in full without any consideration whatsoever of a” non-deportation policy other than on the ground of its illegality.

According to Chief Justice Roberts, the Constitution makes it easy for presidents to violate the law, but reversing such violations difficult — especially for their successors.

Such a rule upends the text, structure, and history of the Constitution, which generally prevents the occupants of a branch of government (who are temporary, after all) from binding their successors. The Constitution, for example, contains no system for undoing a statute. When Congress wants to repeal a law, it must pass a new law through the same process of bicameralism (House and Senate approval) and presentment (presidential signature). The Supreme Court effectively repeals past opinions simply by overruling the earlier case, though the Constitution does not expressly provide for such reversals. Brown v. Board of Education famously overruled Plessy v. Ferguson’s rule of separate-but-equal. When a president wants to repeal an executive order, all he need do is issue a new executive order. When agencies want to reverse a regulation, they must resort to the same sluggish method of notice-and-comment rulemaking.

If anything, constitutional law grants presidents the power to reverse the acts of their predecessors even faster. Although Article II of the Constitution requires cabinet officers to undergo both presidential nomination and Senate advice and consent, practices from the earliest years of the Republic as well as Supreme Court precedents recognize the executive right to fire them unilaterally. A president similarly can terminate treaties, as Trump recently did with the Intermediate Nuclear Forces agreement with Russia, even though treaties must also receive Senate approval.

Recognizing a plenary power to reverse previous presidential acts, contrary to the Supreme Court’s DACA rule, comports best with the purposes behind the creation of the executive branch. The Framers created an independent executive branch that could act unilaterally and with dispatch because the president’s swift action was desirable in the execution of his constitutional and statutory responsibilities. They wanted each president to be fully accountable to the electorate for his actions without any diffusion of responsibility. The same reasons that support unitary executive action in the first instance support its potential unilateral reversal. A president may need to reverse his predecessor’s decisions quickly to protect national security or take advantage of a great opportunity.

The Framers’ careful protection against arbitrary government would be turned on its head if one president could insulate his unilateral policies against reversal by a subsequent president — for then the constitutional difficulty of enacting a statutory override would further entrench a tyrannical executive policy against electoral or statutory change.

It is important to understand that this principle applies even more strongly in the case of illegal presidential action. The Constitution vests in the president the responsibility to “take Care that the Laws be faithfully Executed.” The highest form of the law of the land is the Constitution. Under this duty, the president cannot enforce an executive order that violates the Constitution — here, the vesting of the power over immigration in Congress. Upon taking office, for example, President Thomas Jefferson immediately ended all prosecutions under the 1798 Sedition Act, which had made criticism of the government a crime, and pardoned those convicted under it.

This allocation of the power to execute the Constitution to the president reveals the perversity of Chief Justice Roberts’s opinion in Regents. It forces President Trump to enforce an executive program that he believes violates the Constitution and federal immigration law, and hence it forces President Trump to violate the Constitution. This is doubly perverse because Trump supports a legislative solution that would allow DACA and DAPA beneficiaries to remain in the country. Nevertheless, Trump reversed DACA and DAPA because President Obama had no constitutional authority to impose the two policies.

The Obama administration claimed that it could still establish DACA and DAPA as a matter of prosecutorial discretion. The constitutional obligation that presidents enforce the law also includes their right, due to limited resources and time, to set enforcement priorities. Prosecutors cannot bring cases for every violation of every federal law at all times. But Obama’s claim flew in the face of the Constitution by claiming that he could bring the enforcement of a federal law — here the removal provision of the immigration laws — completely down to zero.31

If that were true, President Trump could simply restore the preexisting enforcement levels as a matter of his own exercise of prosecutorial discretion. Each new president’s right to reverse the exercises of executive power by his predecessors means that no level of enforcement can bind any future administrations. If Obama were indeed free to set immigration removal levels to 50 percent of past cases, or even zero, Trump had the constitutional right to restore removals to those that prevailed under the Bush administration.

Trump’s rationale was correct: President Obama had no constitutional authority to refuse to enforce the immigration laws against whole classes of aliens, amounting to 50 percent of the possible removal cases. As the Court in Regents concedes, he had intruded on Congress’s constitutional prerogative to set immigration levels and to establish visa categories. As the lower courts had found, President Obama failed to live up to his constitutional responsibility to take care that the laws are faithfully executed. In such a situation, the Constitution compelled Trump to restore immigration enforcement to pre-DACA and pre-DAPA levels. By ignoring these aspects of the Constitution and presidential power, the Regents Court may have inflicted a harm on the nation that goes far beyond immigration law.


Gorsuch’s Ruling Demands Employers Allow Sexual Harassment

What many commentators have missed is that the Bostock opinion provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII.

By Jacob RothThe Federalist

On June 15, the Supreme Court issued its decision for Bostock v. Clayton County. The ruling established that firing an employee simply for being gay or transgender is a violation of federal law under Title VII of the Civil Rights Act of 1964 as a form of discrimination based on sex.

Justice Neil Gorsuch wrote the opinion for the six-justice majority. He established a simple “rule” for when sex discrimination occurs under Title VII: if changing the sex of an employee would change the employer’s decision, then the employer has violated Title VII.

This opinion has been lauded by the left and some on the right as an important step forward for gay and trans rights. What the Bostock cheerleaders who love the decision for its surface-level results don’t realize is the profound difference between a legislative policy change and a judicial policy change. “Legislation” from the courts carries the baggage of the reasoning used to achieve its result, and the contents inside can be volatile and dangerous when the courts finally get around to unzipping them.

Gorsuch’s rule creates problems because it lacks a limiting principle. What many commentators have missed is that the Bostock opinion already provides the basis for the argument that single-sex bathrooms and locker rooms violate Title VII. Even further, Bostock provides the basis for the argument that it is a violation of Title VII to enforce sexual harassment policies that are mandatory under Title VII.

The deep problems with Bostock are best illustrated by an example. Imagine an employer that has locker rooms for its employees. There is a male locker room and a female locker room. Each has a communal changing area and a communal shower area. The men in their locker room change and shower in front of one another. The women in their locker room do the same.

The employer also maintains sexual harassment policies that are mandatory under Title VII. These policies prohibit harassing behavior that creates a hostile or offensive work environment, as is federally required.

One day, after reading the Bostock opinion, a male employee who does not identify as transgender walks into the women’s locker room. The women are disrobing in the communal changing area and some are showering. The man disrobes in front of the women, then showers. The employer immediately learns of this and informs the male employee that he has violated the employer’s sexual harassment policies and is fired.

The male employee sues the employer for sex discrimination under Title VII based on the Bostock standard that the decision to fire him for his actions would have been different if he were a woman. The male employee argues that all he did was enter the women’s locker room, disrobe, and shower, and that female employees do those exact actions all the time without penalty.

He argues that his performance of the same actions got him fired only because he was a man doing them, which constitutes sexual discrimination under Bostock in the same way that if a man and a woman at a company are both attracted to men, but only the man is fired for it, then the company has sexually discriminated against the man.

Gorsuch and Bostock defenders do have an obvious argument for why the male employee could not claim discrimination under Bostock. They can say that the male employee’s actions in the locker room were not the “same” as what the female employees were doing because, when the male employee disrobed, he was exposing a male body and male genitalia to the women there, whereas the female employees were exposing female bodies and female genitalia when they disrobed.

Bostock defenders can argue that this biological difference is sufficient to establish that the male employee did not engage in the “same” action as the female employees, and thus his firing was not discriminatory. Yet this defense fails for two reasons.

The first reason is that it is utterly ineffective for dealing with a similar version of the scenario in which the male employee simply walks into the women’s locker room and grabs a towel from the shower area, thus allowing him to see the women in the changing area and shower disrobed and without exposing his body. The court would need to say that the male employee’s act of seeing the women is different from the women’s act of seeing each other, or to put it more simply, that “it’s different when a man does it.” But the argument that “it’s different when a man does it” is exactly the kind of thing Gorsuch rejected as discrimination in Bostock.

The second reason is that the argument about the asymmetry of male and female biology was missing from Gorsuch’s reasoning about sexual orientation and trans status in Bostock, even though it just as easily could have applied there. Either the concept of discrimination accounts for the natural distinctions and asymmetries between men’s and women’s bodies and the social context of their actions with the same and opposite sex, or it doesn’t.

In Bostock, Gorsuch decided that it doesn’t. This means that, just as Gorsuch declared that male same-sex attraction is the “same thing” as female opposite-sex attraction, so too does his logic require that a man exposing his body to women is the same as a woman exposing her body to women.

Bostock demonstrates the bad consequences of a judge’s unacknowledged assumptions about philosophy, theology, and other big ideas. In Gorsuch’s justification-free assumption that same-sex and opposite-sex attraction are literally the “same thing,” he has provided no guideline for how the actions of men and women can ever be distinguished sufficiently to keep women, like those in the locker room example, safe from a man intruding into places like their showers and exposing himself.

What would the solution be to correct for this? Would it be an arbitrary redefinition of some actions as inherently different when men and women do them, but not others that Gorsuch wants to enforce equality for? Would it be a standard that finds no difference between male and female sexual attraction to men, but does find an inherent difference between a man and a woman seeing women nude?

That kind of a scheme would further transform the judges’ robes into heroes’ capes, to wear as a Super-Legislature. Their list of super powers would be impressive: they don’t need to be elected and can’t be voted out; their laws don’t need presidential approval; they decide if what they do is constitutional; and they can create laws based on personal preference.

Justice Samuel Alito described Gorsuch’s appeal to textualism, and the claim that he was reading Title VII as it was written and nothing more, as akin to a pirate ship flying a false flag to get away with plunder. Such a self-serving use of official power for personal policy goals, as would be demonstrated by the Supreme Court scrambling to find asymmetries between men and women only where it would produce a patchwork of desired results, does sound like something a pirate would do.


Media Propaganda About Ruth Bader Ginsburg’s Health Is Irresponsible

The media has for decades been constructing a pretense that an elderly four-time cancer patient who falls asleep on the job and can barely walk is peppy, alert, and capable.

By Joy PullmannThe Federalist

On Sunday, CNN’s “Reliable Sources” did a segment about President Trump’s recent doctor visit that opened with host Brian Stelter questioning, “Trump says he went for a very routine physical because he had extra time, but does it all add up?” Stelter brought on medical correspondent Dr. Sanjay Gupta to question the official story of what the chyron called “Trump’s Mystery Hospital Visit.”

“Any time a 73-year-old man with clinical obesity and a history of heart disease goes to the hospital unannounced, obviously medical people are going to ask why, what prompted that?” Gupta said. “And keep in mind, the president going to the hospital is a big deal, no matter what.”

Gupta then tried to read the tea leaves into the hospital not being informed and prepped beforehand of the president’s visit and the fact that a week ago the White House doctor rode with Trump in the car, which he says is unusual. Gupta then worried about the possibility that the doctors were “beholden to the president” and might not tell Trump the truth about his health. Gupta reiterated these concerns in an accompanying 2,100-word CNN article the same day.

While CNN devoted all this to one news story about a top political figure’s unannounced doctor visit, corporate media outlets in general have been busy sending the opposite messaging about a litany of health difficulties for Supreme Court Justice Ruth Bader Ginsburg. The 86-year-old Ginsburg was admitted to the hospital on Friday with “chills and fever.” The Supreme Court’s oldest justice went home Sunday, according to CBS’s Jan Crawford.

Jan Crawford@JanCBS

BREAKING FROM SCOTUS: Justice Ginsburg was hospitalized overnight at Johns Hopkins with chills and fever. Symptoms have abated, expected to be released tomorrow.

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1,8125:35 PM – Nov 23, 2019 · Washington, DCTwitter Ads info and privacy1,005 people are talking about this

Jan Crawford@JanCBS

Justice Ginsburg released from Johns Hopkins. “She is home and doing well,” Court says in a statement. The justices return to the bench for arguments Dec 2.

The reports on her illness from CNNUSA TodayBloomberg, and The New York Times were routine writeups of the press statements Crawford posted. Instead of 2,000 words of probing about the “mystery” behind Ginsburg’s series of recent ailments, CNN Supreme Court reporter Ariane de Vogue pointed out evidence of Ginsburg’s vigor, such as her participation the same day she was hospitalized in an “important” Supreme Court conference.

“I have been watching her carefully since the beginning of this term, and she has been such an active participant. She’s often the first one asking questions, and she follows up,” de Vogue commented. De Vogue failed to point out that Ginsburg has been known for the past 13 years to fall asleep during oral arguments, although she did mention that the justice has had cancer four times.

“This is a very strong woman who has had frail health at times,” de Vogue concluded. “But, boy, she’s a strong woman.”

Ginsburg is clearly a strong woman in the personality sense. That is beside the point. If she were not a far-left political actor, Ginsburg’s health record would not be lipsticked. It’s also much worse than Trump’s. She’s 13 years older than Trump, who is 73. She’s been falling asleep in oral arguments since 2006. Ginsburg also fell asleep during two of President Obama’s State of the Union Addresses and Pope Francis’s speech to Congress in 2015.

Ginsburg can barely get herself off the Supreme Court dais, another long-time situation. She is typically extremely hard to hear when she speaks from the bench. Two weeks ago, she missed oral arguments due to a stomach bug. She also missed two weeks of oral arguments in January due to lung cancer surgery. The first two times she was treated for cancer, in 1999 and 2009, she didn’t miss a day of oral arguments.

In August, Ginsburg was treated with three weeks of radiation for a different cancer, pancreatic. Last November, she fell and broke three ribs. Ginsburg is simply and clearly not in good health. The divergence in treatment between her health history and Trump’s was replicated in media dismissal of Hillary Clinton’s fainting spell, the Washington Free Beacon noted.

The opposite-world media coverage is not shocking, because corporate media do free PR for the left, but it is unfair and impedes the American people’s business. The Supreme Court always considers significant cases, and those pending are no exception: whether Trump can undo President Obama’s executive order suspending immigration laws, whether laws against sex discrimination require employers to allow cross-dressing, whether religious schools may participate in state choice programs, to what extent states may regulate abortion, and more.

If Ginsburg is not capable of fully performing her duties in these cases, she should step down. If she is not capable of recognizing whether she should step down, others should guide her to do so.

Working furiously against this needed realization, the media has for decades been constructing a pretense that an elderly four-time cancer patient who falls asleep on the job and can barely walk is peppy, alert, and capable. Back in 2013, the Washington Post published a cutesy profile of Ginsburg’s personal trainer, who got her to peak performance of 20 pushups. That same year, The New Yorker’s Jeffrey Toobin claimed she was stronger than younger justices using the same workout equipment.

Stephanie Mencimer described in Mother Jones last year other media efforts in this absurd PR campaign to pep up an elderly justice with a long and serious history of health difficulties:

Details of [Ginsburg’s exercise routine] appear in Notorious RBG, and Ginsburg allowed the RBG documentary makers to film her doing pushups and tossing a medicine ball—proof, the film implies, that she is nowhere near death’s door.

Last year, personal trainer Johnson published The RBG Workout: How She Stays Strong and You Can Too, for which Ginsburg wrote the foreword. In March, Ginsburg helped promote the book by going on TV to work out with Stephen Colbert …Only the most die-hard superfan could call Ginsburg’s Colbert performance anything but cringeworthy—those things she does with Johnson are most definitely not pushups. The episode felt like a desperate attempt to convince the world, and maybe Ginsburg herself, that she didn’t grievously miscalculate in refusing to retire before 2014.

Watch the Colbert clip here: https://youtu.be/0oBodJHX1Vg

If it were Trump who had been a four-time cancer survivor who could barely walk down three steps, we’d be enduring a media thunderstorm demanding he resign rather than watching sunny profiles of him lifting five pounds with help next to a comedian. We’d have the Supreme Court potentially ushering Ginsburg off the bench the same way they ushered out Associate Justice William O. Douglas in 1975 after he suffered a debilitating stroke but still refused to resign. (Read the link — his story is shocking.)

Why would a justice well into the twilight years and by all appearances having a rough time not retire gracefully so her succession could be well-planned for optimal benefit to the nation? Everyone knows the answer: Because the Supreme Court is not a strictly judicial force that applies the laws as they are written. It is a political institution that makes political decisions, not a legal institution that makes legal decisions.

Ginsburg is among the justices notorious for her manipulation of the law. That legal corruption does make her job easier for her age. She doesn’t need to actually analyze the law itself, she just needs to know what would be politically advantageous to the left and rule accordingly, as she has done her entire tenure.

Still, Ginsburg obviously doesn’t want to retire while a Republican has the power to appoint her successor. Along with the entire Democrat-Media Complex, Ginsburg badly miscalculated by assuming Hillary Clinton would win the presidency in 2016 and thus didn’t resign while Obama could appoint her replacement.

So Ginsburg is now stuck in political purgatory, having to sit on the bench as her already delicate health declines even further. For her sake, and the country’s, let’s pray her departure doesn’t look anything like Douglas’s — and that her successor helps undo the court’s overweening importance as an unelected superlegislature in which justices’ personal politics can subvert the law.


The DACA Dilemma

By Richard A. EpsteinThe Hoover Institution

A vexed Supreme Court is now considering the legal status of the highly popular program, Deferred Action for Childhood Arrivals, better known as DACA. DACA’s survival is now up for grabs in three related cases before the Court, which are being consolidated under the name Department of Homeland Security v. Regents of the University of California. The Court displayed its angst about the legality of DACA during last week’s oral argument for the case.

In June 2012, President Barack Obama initiated the program whereby children who were brought into the United States illegally became eligible to remain for two-year renewable periods so long as they did not committed any felonies or misdemeanors. As designed, the program does not offer these “Dreamers” a path toward citizenship, but it does authorize them to get jobs, obtain driver’s licenses, social security, and a host of other privileges. There are now close to 700,000 Dreamers in the United States, and they have often excelled, as students, military personnel, and workers. Most emphatically, they are not “far from angels,” let alone “hardened criminals,” as President Trump scandalously tweetedon the day of oral argument.

Fortunately, the debate before the Supreme Court rose above that low bar. At issue was the Dreamer’s “reliance interest” in the continuation of the DACA program. The notion of a reliance interest is old and runs throughout the law. It holds that a claim that is otherwise imperfect becomes fully protected once the recipient relies on the promises or actions of the defendant—here the government—to its detriment, and thus cannot be returned to his original position. As a substantive matter, I think that DACA was a welcome modification of national immigration policy. But as a legal matter, the issue is more complicated.

Of course, Trump’s election as president marked a dramatic reversal in immigration policy. In September 2017, Trump gave Congress six months to come up with a legislative solution to the DACA issue, which, to him, boils down to the simple fact that the Dreamers, having come to the United States illegally, have no right to remain in this country. No such deal was worked out, and the Trump administration issued an order to terminate the program. The order was promptly postponed in the lower courts on the ground that Trump was not exempt from the Administrative Procedure Act of 1946, which provides that a court “shall … hold unlawful and set aside agency action … found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

What is odd about the current dispute before the Supreme Court is that it subjects the Trump administration’s DACA decision to close scrutiny without once asking whether the same level of scrutiny should have applied to then-President Obama’s decision to create DACA in the first place. It is still an open question whether or not Obama had such legal authority in June 2012 to issue his own executive order. On multiple prior occasions, as in October 2010, Obama had repeatedly denied that he had the power to remove or alter the legal status of these individuals by saying “I am not king. I can’t do these things just by myself.” Yet less than two years later, Obama reversed himself and unilaterally imposed a new legal regime under the fig leaf that he was only exercising the most traditional form of prosecutorial discretion, whereby a prosecutor may decline to pursue a case under the law if he thinks that the evidence is not strong enough to warrant pursuing the case, or that other matters have higher priority.

But the outer limits of that discretion is a decision not to prosecute, not on the strength of individual facts, but for an entire class of persons, such as the dreamers.  I regard this practice as questionable at best. If a president can refuse to deal with minor, non-violent offenses, can he also refuse to prosecute serious offenses because he thinks that the penalties are too steep? But even if he can rethink prosecution for broad classes of cases, he may not unilaterally change the status of illegal aliens (the statutory term) under state law.

As such, in my view, the DACA program was flatly illegal at the time it was first issued, because no amount of administrative review under the APA could cure this initial defect by making administrative findings about the strength of the supposed reliance interest. Yet, it was not possible for anyone to immediately challenge the program on its face before implementation. The reason for that is the standing doctrine engrafted onto Article III of the Constitution that restricts access to the federal courts to cases in which there are concrete and discrete “injuries in fact” to a particular person that are traceable to government action and capable of remediation in the event of a favorable decision. In the case of DACA, this standing doctrine means that the case can only be brought by some party that suffers that kind of discrete injury, which cannot be any general member of the public at large.  

This narrow interpretation, however, misreads the key language of Article III, which states that “the judicial Power shall extend to all Cases in Law and Equity” that arise under the Constitution. The requirement of particularized injury is satisfied whenever an individual is subject to a deportation under the immigration laws. But the limited definition of standing—itself a term nowhere found in Article III—ignores the phrase “in equity,” which has long included challenges against ultra vires action—those beyond the power of any corporation, charitable organization, or local government. In other words, the legality of DACA should in principle be subject to challenge by any citizen who thinks that the program is illegal.  If many such cases are brought, they can be consolidated into a single proceeding.

Accordingly, no recipient of DACA benefits could challenge the statute, and it is a tough sell to say that a state has standing to challenge the statute simply because it must issue driver’s licenses to Dreamers. While the driver’s license argument was accepted in 2015 by Judge Jerry Smith of the Fifth Circuit in Texas v. United States, a case which challenged DACA-spinoff program DAPA (Deferred Action for Parents), its thorough examination is of limited precedential value because its judgment was affirmedone year later, without opinion, by an evenly divided Supreme Court.

The standing issue would be trivial, however, if any citizen of the United States was entitled to challenge the illegality of any presidential order. Accordingly, the correct procedure needs an expedited review of DACA’s constitutionality before it was put into place. It is always easier to decide on the legality of a program before it is implemented, not afterwards.

Unfortunately, that did not happen. Hence the glacial pace at which DACA reached the Supreme Court has made it plausible for individual DACA claimants to insist that their reliance interest should force the Trump administration to do what the Obama administration never did— namely, give a set of reasoned justifications under the APA for reversing Obama’s original DACA order.

But their argument is suspect on two grounds. The first is that the reliance interest claim is weak in this context. There are all sorts of ways for individuals to rely on the decisions of other parties in organizing their own conduct. Company S, for example, contracts with local government L to remove snow from the streets. The contract lasts for several years, during which time X buys an automobile that he parks by the street. If L and S agree to reduce the frequency and quality of the snow removal services, X does not have a claim against either solely because he relied on their joint decision when he purchased his automobile.

In the language of contract law, a Dreamer is an “incidental beneficiary” who does not acquire rights against the government simply because the past implementation of DACA improved the Dreamers’ overall position. It is perfectly rational for every DACA recipient to take full advantage of the program. But it is not possible for them to claim that their past good fortune gives them any future entitlement to program continuation. Any waivers of enforcement power in two-year chunks can be stopped at any time.

The point has not been lost on defenders of DACA who grimly understand that the whip in all immigration cases lies with the President, such that the best they could hope for is a delay in action whereby the Court insists that the Trump administration offer a more detailed justification for its decision. Indeed, one reason why the oral argument proved so frustrating is that there was still judicial doubt—as expressed by Justices Ginsburg, Sotomayor and Kagan—as to whether the Obama program was illegal when issued. Hence Justice Ginsburg pressured Solicitor General Noel Francisco to explain the “strange element” whereby he argued first that DACA was flatly illegal, and then asserted that the Trump administration had ample discretion to end the program because of its policy reservations on its ends and purposes.

There is less to Ginsburg’s objection than meets the eye. Francisco was arguing the case in the alternative—first, that the program was illegal, but then if not, that the administration could end it in the same fashion it was implemented, by presidential order. In my view, the first of these grounds is correct. However powerful the case for DACA on the merits, the constitutional principle of separation of powers does not grant to the president the power to create an entire immigration reform out of whole cloth. Asking for a memo in justification for undoing that error seems most unwise. The standards here are necessarily fluid, and that inquiry invites lower courts to keep DACA in place by constantly raising the burden of proof to extreme levels.

Ironically, if this view on legality is correct, the harder question becomes whether Trump had the power to extend DACA once he came into office after he concluded that DACA was constitutionally infirm from its inception. The whole inquiry quickly enters uncharted waters, given the evident need to allow some limited time for transitions to take place. But the matter is too urgent for it to be resolved by either presidential directive or by judicial decision. Fortunately, the same option that was available in 2012 is available today: enact DACA as is for a short-term fix, and then work through the larger immigration challenges at a more thoughtful pace. The human toll is too great to tolerate more indecision, confusion, and delay.


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