Sunday, February 12, 2017

The Heritage Foundation news

The courts are trying to make foreign policy and that's not their job

The Ninth Circuit Court of Appeals is wrong. On Thursday, the Ninth Circuit Court of Appeals refused to halt a stay on President Trump’s executive order suspending travel from seven majority-Muslim countries in the Middle East. Hans von Spakovsky writes: “The court’s apparent opinion that other aliens who don’t live in the U.S. have due process rights if they are refused entry can only be true if they have a constitutional right to enter the U.S. That is an absurd proposition, yet that is the end result of the court’s opinion: that a foreign alien can demand a hearing and due process rights if one of our embassies refuses to give the alien a visa. So far in the numerous lawsuits that have been filed against this executive order, the only federal judge to get it right is Nathaniel Gorton of the District Court of Massachusetts. He analyzed the relevant statute, 8 U.S.C. §1182(f), and concluded that the executive order is fully within the president’s authority: ‘The decision to prevent aliens from entering the country is a “fundamental sovereign attribute” realized through the legislative and executive branches that is “largely immune from judicial control.”’” [The Daily Signal]

Astonishingly wrong. David French writes: “The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are ‘potential claims’ regarding ‘possible due process rights’ even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this ‘authority’ to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror.” [National Review]

“Precisely the wrong thing for the court to do.” In the words of Judge Andrew Napolitano: “The constitution assigns the decision making for foreign policy exclusively to the President. Even Congress has a subordinate role. […] The decision to ban is not reviewable. It’s not justiciable. Judges are incapable of second-guessing the President on it. […] This is an intellectually dishonest piece of work that the 9th Circuit has produced tonight, because it essentially consists of substituting the judgment of three judges for the president of the United States, when the Constitution unambiguously gives this area of jurisdiction—foreign policy—exclusively to the president." [Fox News]

The precedents against judicial involvement in immigration decisions are strong. From where does this idea come that non-citizens generally do not have judicially reviewable claims regarding immigration policy and exclusion decisions? It comes from something called the plenary power doctrine. To brush up on it, read Jon Feere’s short history published a few years back by the Center for Immigration Studies: “Plenary Power: Should Judges Control U.S. Immigration Policy?”
The piece provides a précis of many of the major cases that affirmed the idea since Chinese Exclusion Case of 1889, in which the Supreme Court noted: “That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.”
Fast-forward to the 1952 case of Harisiades v. Shaughnessy, which concerned the deportation of former members of the Communist Party, and we find the Court holding: “[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”
And: “However desirable world-wide amelioration of the lot of aliens, we think it is peculiarly a subject for international diplomacy. It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities. Reform in this field must be entrusted to the branches of the Government in control of our international relations and treaty-making powers.” [All quotes from “Plenary Power: Should Judges Control U.S. Immigration Policy,” by Jon Feere, Center for Immigration Studies.]

Sometimes the cops are the robbers. Jacob Sullum writes: “In a meeting with county sheriffs from around the country on Tuesday, President Trump jokingly (we hope!) threatened to ‘destroy [the] career’ of a Texas legislator who proposed requiring the government to obtain a conviction before taking property allegedly tied to crime. As Nick Gillespie noted, Trump’s knee-jerk support for civil asset forfeiture is troubling, especially in light of a growing bipartisan consensus that the practice should be reformed or abolished because it hurts innocent property owners and warps law enforcement priorities. Worse, the White House transcript of the president’s remarks about forfeiture shows he literally does not know what he is talking about, which suggests this ‘law and order’ president is happy to go along with whatever cops want, even if he has no idea what it is.” [Reason]
If President Trump doesn’t understand the problem of civil asset forfeiture, he can get a good introduction to the topic by taking three minutes and fifty seconds to watch the Institute for Justice’s video “The Forfeiture Machine Turns Cops into Robbers.” It’s a good video for everybody to watch, too.

Maybe the President is not a control freak. John O. McGinnis writes: “A common criticism of President Trump is that he is an authoritarian executive. But he has chosen to nominate a judge who is on the record against giving deference to interpretation of statutes by heads of executive agencies. Gorsuch opposes an important doctrine that would protect the administration’s authority. There were many judges on his list of 21 potential nominees who were more favorable to Chevron and yet he passed them over. This choice is not the action of someone who wants to maximize his power at all costs. Perhaps some would say that Trump was just ignorant of these details. But surely his key agents, including Steven Bannon and Reince Priebus, recognized this salient feature of Gorsuch’s record and they recommended him nonetheless. Just as Trump’s nominations suggest he is better than his off-the-cuff statements, so his nomination of Gorsuch likely suggests that his administration’s considered views on federal power are better than his impulsive tweets.” [Library of Law and Liberty]

They think the Secretary of Education works for the teachers. Mark Bauerlein writes: “The more politicians and commentators insist that the first responsibility of the secretary of education is to represent and support public schools, the more we have an example of ‘capture’ in government. Capture takes place when an agency charged with monitoring an industry or profession ends up in the service of it. The agency or official starts to regard the object of evaluation as a constituency that must be supported. When the governor of a state gets too close to the public employee unions around negotiating time, he has stopped representing the people of his state and become a partisan of special interests. He has been captured.
“When the opponents of Betsy DeVos hail public schools as the first beneficiary of the Department of Education, they do the same thing. They forget the civic principle of ‘by the people, for the people.’ […] In the case of the Department of Education, the Cabinet secretary should not be primarily the representative of, or advocate for, public schools and all the people who work in them. His or her constituency is not teachers, superintendents, and the rest of the personnel. It is the students.” [Vox]

But it turns out that Betsy DeVos probably is the best choice to save public schools. Why? Because competition improves everything. James Agresti writes: “[T]he current public school system is highly stratified by income, and income and education go hand in hand. Hence, the real issue is not stratification but what happens to students who stay in public schools. Contrary to the belief that school choice will harm these students, a mass of evidence shows the opposite.
“At least 21 high-quality studies have been performed on the academic outcomes of students who remain in public schools that are subject to school choice programs. All but one found neutral-to-positive results, and none found negative results. This is consistent with the theory that school choice stimulates competition that induces public schools to improve.” [The Insider]
If DeVos is able to encourage the expansion of school choice around the country, then she will have helped all schools improve.

The Heritage Foundation news
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