Some News to Ponder: In No Particular Order

The news keeps coming in and things keep boiling in and around Washington, DC, that bastion of all things good and decent.  Let’s just list a few:

  1.  General Flynn resigns, ostensibly for some security missteps.  Another part of this story however is the revealed extreme politicization of the Intelligence agencies and the Justice Department.  For them this seemed to be a “gotcha” moment more than a concern with security.  It’s hard to know how to “fix” this problem in the long run.  Some kind of structural changes might be good, but I have to think through this and let the full story come out first.
  2. President Trump’s executive order limiting immigration for a period.  The District judge issued a nationwide temporary restraining order against the order.  On appeal to the Ninth Circuit panel, the judge’s order was predictably upheld.  The grounds on which the Washington state’s attorney general went to court were outlandish, but the fact that the District and Circuit courts bought into them was astounding.  For example, one was that the states of Washington and Minnesota would suffer irreparable harm if immigrants were disallowed for 90 or 120 days.  Following that logic, anytime anyone is denied anything they can argue irreparable harm.  But trumping national security?  That is no argument.  But alas, our courts.  Besides that the complete ignoring of Congressional authority to the president under statute, not to mention the Constitutional authority of the president in foreign policy?  This case is not over–unless the president simply issues a new order (I support that option).  By the way you don’t have to support the merits of the Order to understand the hubris of the courts.
  3. Obamacare:  Will they or won’t they?  What will Congress do?  I favor a slow but steady policy analysis of all aspects of the existing law, followed then by a repeal of it in toto and a comprehensive replacement.  Congress seems a little hesitant, and I am not sure what exactly they are afraid of.
  4. The Oroeville Dam, California:  Trouble for a lot of people below the dam.  But whose policies led to the break?  Looks like state and federal both will share some blame and if things play out as usual, neither will ever really have to account for it.
  5. It seems we are seeing some organized protesting at Congressional town hall meetings.  Hmm.  Could they be trained and paid activists?  It looks like they are definitely trained (I watched their tactics–clever).  But the main problem is their seeming obsession with shutting down other peoples’ speech.  I am all for them getting their time to speak, but they really don’t say anything; they just shout down those who do.  Not good.
  6. Sanctuary cities:  President Trump threatens to cut off funding to them and some states are trying to ban them.  The Supreme Court has limited cutting of funds by the Feds to those directly related to immigration issues.  Distantly related funding (for example, highway monies) would possibly not be allowed.  We will see.
  7. Neil Gorsuch:  Very well qualified nominee.  Well-written opinions.  Looks to be an Originalist.  He is conservative by all accounts and believes firmly in the “rule of law.” (which desperately needs repair).  He will be confirmed, but after some political bloodshed.
  8. Basketball:  I have been a fan of West Virginia University basketball for almost 50 years and I have (or should have) learned that if there is a way to lose they will find it.  Up 14 points with 2: 45 to go against Kansas as “the Phog” we of course blew the game–and stupidly.  All utopian dreams about our sports teams (except the rifle team) must die.

That’s it .

25 thoughts on “Some News to Ponder: In No Particular Order”

  1. National security does trump economic harm. The court decided that there’s enough evidence that the Muslim ban was intended as a ban on Muslims and not in the interest of national security that they should hold off enforcement of the law until the case can be fully heard.

    Might I add, if Trump were right then we would all be dead by now.

    1. Yes, the court was wrong on that claim too, since it cannot read the minds of those who issued the order–and cannot legitimately try to do so. But it did anyway.

      Second in your last statement, you asserted a false alternative. It isn’t between all dead and all alive, but involves many intermediate and dangerous possibilities.

      1. I didn’t state a false alternative. I shared the concerns of our president. I spoke in hyperbole because Trump did.

        If this order had been in place for the past twenty years would it have saved any lives?

        I heard from someone on the far right that believes we should shut down any immigration and travel for a time. There would be a significant cost to that, but I respect the internal consistency.

    2. Second-guessing the President of the United States on matters of national security is not in the job description of the judiciary. The courts have no business allowing their personal view of what motivated the President to influence their ruling. The letter of the law is clearly on the side of the administration, and frankly, while everyone is all bent out of shape over-hyping Trump’s ill-advised tweeting as some existential threat to the republic, the real problem is being totally ignored. To quote an article I read in Politico (written prior to the ruling, thus the speculative nature of the language) “If the courts throw out Trump’s travel ban, despite the black-and-white letter of the law giving him the authority to block aliens in the interest of national security, it will be a usurpatory act. In that scenario, the courts will have done more violence to our constitutional system than a foolish Trump tweet ever could.”

      1. Addendum: In my personal opinion, the reason the stay was upheld had nothing to do with the legality of the order. It was really the only way for the liberal judges to actually stop the policy because the order was TEMPORARY. If they had allowed the order to be enforced, because of the time it takes for a case to work through the system, the executive order would have probably expired before the final decision on its validity would have been reached, thus making the whole process merely academic and a waste of time and money.

      2. Nathan,

        I’d like to remind you that we have a system of checks and balances.

        When the president acts in a way that is unconstitutional the court system has a duty to stop him. The letter of the law, combined with everything the white house has said, has lead to a reasonable belief that the first amendment was violated (there were different rulings, I’m cherry picking my favorite). Until this issue can be sorted out the conservative thing to do would be to delay implementation of the executive order. Also you said that the order was temporary. That’s not true. Parts are temporary, parts are permanent.

      3. Yes, we have a system of checks and balances. But it is the court, not Trump, who is stepping over its bounds. And there can be no legitimate belief that the 1st Amendment has been violated because the people affected by Trump’s order are NOT, repeat NOT, protected by it. They are not citizens, they are not legal residents, they are those who have not yet come to this country. They are not legally, until they step foot on U.S. soil, entitled to any Constitutional right and U.S. courts have no jurisdiction over them.

        Also, yes, the Syrian refugee ban does not have a specific time limit, but “indefinite”, as the order states, does not equal “permanent”.

      4. Amendment 1:
        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

        I don’t really see how President Trump’s executive order violated any of these.

  2. If I could jump in here…I recommend taking a look at the actual order. :)

    Nathan, your opinion on the reviewability of the EO – while politically interesting and worthy of discussion – is neither legally nor constitutionally supported. It was the government, not the 9th, that advocated a brand new, constitutionally suspect theory (the executive’s actions, whenever cloaked b immigration policy or “national security” interests, are unreviewable.) The 9th denounced this argument rather persuasively (beginning on page 14). They noted that the judiciary can and often does balance proper deference to its co-equal government branches while exercising its Madison rights. They also addressed each of the DOJ’s admittedly flimsy counter-arguments. Their reasoning was closely aligned to the centuries-old understanding of the judiciary’s reviewability powers. When you take the time to review the opinion itself – rather than articles about the opinion – I think you will find that the 9th isn’t catalyzing some kind of constitutional crisis. Honestly, that just sounds kind of flamboyant and silly.

    Dr. Clauson, I think you’re misunderstanding the purpose the 9th Circuit’s reasoning regarding the “harm” alleged by the respondents (WA and MN). “Harm” had nothing to do with the legal substance of either the EO or the TRO; it had to do, primarily, with standing. The government didn’t even attempt to argue against the presence of harm suffered by the respondents (see bottom of page 12). Harm is only legally significant if the government’s actions (the EO, in this case) are legally/constitutionally “irrational.” In this case, they were.

    You also discussed “irreparable harms;” the 9th wasn’t arguing that “anyone who is denied anything” suffers irreparable harm (as you characterized it above). In fact, the 9th – citing to SCOTUS – made clear that the deprivation of constitutional rights amounts to an irreparable harm (see page 28). They further concluded that the respondents had plead sufficient evidence to show such a deprivation, and thus plead sufficient evidence to show an irreparable harm.

    Had the government shown sufficient evidence to prove a rational basis for this order, I am persuaded that the government would have persuaded the 9th (which went to the second factor of the governing Bullock test cited by the court on page 18). The fact that they were utterly unable to do so, and instead resorted to founding their argument on a suspect constitutional theory, completely undermined what should have been an easy argument.

    1. Jonathan:
      The plaintiffs made the argument of harm to people like students, professors, businessmen, etc. That was accepted by the District and the Circuit, but in both cases, without any facts (since you wanted facts). As to facts on the Trumps side, it might have been nice and heloped, but legally it was not necessary, and no one expected that order. The judge WANTED evidence but he was wrong for wanting it. The whole theory was strange and no judge should have issued a TRO based on the claims made.

      1. Jonathan:
        I am surprised you are so biased in this case. If the judges had good grounds I would give it to them–after all I thought the Order was clumsy and not thought out. But it was clearly legal, under the SCOTUS precedent too. The claims made by plaintiffs were ridiculous to be made in this kind of case, and yet they were accepted–without any evidence from plaintiffs either (it wasn’t just the govt).

      2. Dr. Clauson, with all due respect, my opinion on the case isn’t based on bias. I expected the DOJ to win. I didn’t expect them to make such a miserable argument.

        I don’t think the case was that complicated: (1) the initial petitioners plead sufficient facts to show the deprivation of constitutional rights and thus irreparable harm, (2) the government could prevail if it were able to show a rational basis for its EO, but (3) the government was unable to show a rational basis. Therefore, the government lost.

        You’re comments above includes a number of conclusory criticisms (“legally [facts] were not necessary,” and “the judge…was wrong for wanting [evidence]”). I took the time to point out specific portions of the opinion that are, to me, pretty persuasive. :) If you have specific problems with the opinion (and not just conclusory criticisms), I think it would be much more helpful to cite specific examples from the reasoning where the 9th either mis-cited SCOTUS precedent or applied faulty reasoning. It appears pretty sound to my eyes.

        Meanwhile, the governments arguments were not only suspect; they were essentially unprecedented. If you’re going to pick on a “novel” argument, pick on that one. :)

  3. Darth Vader:
    The TRO is temporary until such time as the district court hears merits or a new order is issued. Nathan is correct.

    So then, you think the judge was correct to accept the arguments of the plaintiffs? Interesting, since the legal grounds were at best very shaky, let’s say novel.

    1. Dr. Clauson,

      One of us misunderstood. I was trying to say parts of the executive order are indefinite (thank you Nathan, that word was escaping me earlier).

  4. Also, Dr. Clauson: can I just say – honestly – how was genuinely disappointed I was when I read your summary of the Flynn fiasco? :(

    You chose (1) to focus almost exclusively on the politicization of various intelligence agencies and (2) deliberately remitted a stunning amount of information around Flynn’s dishonesty. That had the effect, at least to me, of obscuring the the situation and characterizing his departure as insubstantial or primarily politically-motivated.

    Let’s keep in mind what actually happened. Michael Flynn, the NSA Director, illegally and without authorization spoke with the Russian Ambassador, Kislyev, during the Trump administration’s transition period. The contents of that conversation were recorded, the recordings confirmed that Flynn spoke of removing Russian sanctions once President Trump took office. Flynn, when questioned by the Trump administration, lied to the President and VP about his Kislyev conversation. From there, members of the administration apparently learned of Flynn’s dishonesty, yet chose to take no action. In fact, Sally Yates – the recently fired acting AG – warned the administration of Flynn’s dishonesty and was ignored (!). Eventually, an attorney with the White House Counsel’s office leaked the information to the press, and after days of conflicting information from the administration (Conway declaring Flynn had Trump’s full support, Spicer contradicting Conway just hours later), Flynn resigned last night at 11pm.

    Given all the suspect interaction between Flynn, this admin, and Russia, the entire escapade is troubling regardless of one’s political persuasions! You could have focused on that, but instead you used the word “ostensibly” to create suspicion around the departure and focused on institutional politicization.

    I don’t disagree that the IA has taken a variety of political actions during this administration. I also don’t expect you to be exhaustive in a summary like the one you posted above. Still, I know I would better appreciate and trust your point of view if you were willing to criticize the administration – and its high-level leadership – when said admin/leadership obviously deserve it.

    1. You can say whatever you want, but this story shows signs of a cover-up without a crime. So yes, I am not crazy about what Flynn did, and there is not yet evidence that the administration knew what he might have done, but I also understand well the highly partisan nature of current agencies.

      1. Dr. Clauson – I don’t disagree (I think). I am not asking that you avoid keen insights into the politicization of our intelligence apparatus; I am asking that you also decry (rather than obscure, or cast doubt upon) obviously bad conduct by leaders of your preferred party.

        I don’t really understand your second comment. You said that you are “not crazy” about what Flynn did. The tone of your comment suggests the whole situation is minor even though: (1) Flynn likely broke the law; (2) he lied outright to the Vice President; (3) he (and the rest of the admin) apparently participated in an attempt to cover all of that mess up. Why subdue your criticism?

    2. Jonathan, you have stated Flynn acted illegally. As you once asked me about Hillary Clinton, so now I will ask you, what specific laws did he break?

      Like Dr. Clauson, I am not happy about what he did, and if he indeed lied about the conversation, then he needed to go.

      1. Hey Nathan – The Logan Act of 1799 apparently restricts US citizens from interfering in foreign affairs “with intent to influence the measures or conduct of any foreign government.”

        Flynn reportedly assured the Russian government that the Trump administration would considering dropping Russian sanctions once in office, and then dismissed the subject for a future conversation. His words had the effect of undermining the sitting President’s foreign policy. Pretty straightforward. :)

        To be fair, no one has apparently been prosecuted under the statute before, and I don’t think Flynn would have because he would be told to resign first.

        Also significant, and potentially illegal, was Flynn’s deliberate dishonesty towards the VP.

        And we’re not really discussing whether he shouldn’t have resigned, right? That this isn’t a major scandal?

        Anyway, my point months ago regarding Clinton’s scandals centered on the question of intent, or mens rea. If I recall, you – like many others – thought that because the actus reus (conduct) portion of an offense had been satisfied, then the crime alleged would be easily satisfied. In fact, a prosecutor must prove both the accused’s conduct and the accused’s mental state as required by the statute. That question really isn’t applicable here.

    3. Also disappointing: it appears that the GOP is unwilling to investigate the incident, and beyond that, is more concerned about the leaks than the illegality and dishonesty of the outgoing NSA director.

      “It’s taking care of itself,” Chaffetz told reporters Tuesday, according to Politico’s Kyle Cheney, adding that further investigation would be up to the House Intelligence Committee.

      But Republican House Intelligence Committee Chair David Nunes said Tuesday that his committee won’t look into conversations between Trump and Flynn, according to CNN’s Manu Raju. Nunes cited executive privilege — a privilege typically claimed by the president for withholding information in the public interest.

      Instead, Nunes said he is most concerned that the FBI was recording Flynn’s call with the Russian envoy — which was then leaked to press.

      “I expect for the FBI to tell me what is going on, and they better have a good answer,” Nunes told the Washington Post, in line with Trump’s response to Flynn’s resignation. “The big problem I see here is that you have an American citizen who had his phone calls recorded.”

      Trump tweeted Tuesday morning that the “real story here is why are there so many illegal leaks coming out of Washington.”

      1. If this had happened under a Democratic president, impeachment proceedings would already be underway. No love would be shown, even on Valentine’s Day.

        Trump is already toast. The GOP does like his emphasis on tax cuts and deregulation, so they will keep the clown in office as long as it doesn’t hurt their chances of reelection in 2018. Ethics only apply to Democratic presidents, after all.

        A weak president makes them stronger, in comparison.

  5. Good article with many important updates. One that interests me significantly is the District judge issuing a nationwide temporary restraining order against Trump’s temporary ban. It is fascinating to see the different branches of government interact, and to what extent this order will be upheld, if at all. What seems to be excessive self-confidence in both the executive and judicial will hopefully serve as reasonable checks and balances.

  6. I liked this article because it was different than most. It was very concise and easy to read. Some of the statements made are something that do make me curious such as what will congress do about Obamacare? I like how you ended your post with the basketball game, I agree in the world of sports you just never know what is going to happen.

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