Monthly Archives: January 2019

Incompetence Saves The Day

The “breaking news” yesterday on my iPhone and computer included a welcome report about the coming census. As most of you are undoubtedly aware, Wilbur Ross wanted to add a question about citizenship that was widely seen as an effort to depress Hispanic response.

Since funding for a wide number of programs is based upon population, an undercount would really hurt cities and states with high percentages of Hispanics. I’m sure its just coincidental that those places tend to vote Democratic.

In a 277-page opinion, the federal court ruled the question could not be asked.

David Schultz, a colleague who holds joint appointments at Hamline and the University of Minnesota law school, posted a brief summary of the decision on the Law and Courts listserv in which we both participate. (Yes, I am an incredibly nerdy person…)

The Court concluded that the explanations offered–the purported reasons for adding the question–were pretextual.

“First, the Court concludes that Secretary Ross ignored and violated a clear statutory duty to rely on administrative records (rather than direct inquiries) to the “maximum extent possible,” 13 U.S.C. § 6©, rendering his decision “not in accordance with law,” 5 U.S.C. § 706(2)(A). Second, even if that statute did not exist, Secretary Ross’s decision to add a citizenship question rather than collect citizenship data through more effective and less costly means was “not supported by the reasons [he] adduce[d],” Service, 522 U.S. at 374, making it “arbitrary and capricious” in violation of Section 706(A). Third, although a closer question, the Court finds that Secretary Ross failed to satisfy the statutory requirement that he report any plan to address the subject of citizenship to Congress at least three years before the decennial census, in violation of Title 13, United States Code, Section 141(f)(1). And fourth, the Court concludes that Secretary Ross’s decision was pretextual — that the rationale he provided for his decision was not his real rationale.”

An even more interesting part of the decision was the court’s review of the requirements of the Administrative Procedures Act. As David wrote,

What most struck me about the opinion were two major points.  First, and I argued this from day one of the Trump administration, their lack of skill and knowledge about the government (including the Constitution, the law, and process and procedure), would eventually lead to many administrative decisions being struck down in the courts.  This is an example of that. The court describes in detail how Ross just ignored the law and thought he was acting like the CEO of a company where he could do whatever he wanted. He ignored the law, reporting requirements, and also sought to cover up decisions.

The second major point was how DOJ attorneys effectively conceded much of the case to the plaintiffs…

Because Ross simply ignored applicable legal requirements, he left the DOJ attorneys with virtually no arguments to counter the charges of illegality. (Lawyers who’ve been put in this position by clients who are willful or stupid–or both– can relate.)  According to David, “The judge was simply devastating in detailing Ross’ willful disobedience of the law and the inability of the attorneys to defend his actions.”

This administration is doing incalculable harm. Every day is a new outrage, a new assault on the environment, public eduction, the rule of law…not to mention sanity and common decency. This case is a wonderful reminder that–as much damage as this band of looters and thugs is doing–it would be a lot worse if they weren’t reincarnations of the Keystone Kops.

As Paul Krugman put it in “Donald Trump and His Team of Morons,”

Then there’s the Trump effect. Normally working for the president of the United States is a career booster, something that looks good on your résumé. Trump’s presidency, however, is so chaotic, corrupt and potentially compromised by his foreign entanglements that anyone associated with him gets tainted — which is why after only two years he has already left a trail of broken men and wrecked reputations in his wake.

So who is willing to serve him at this point? Only those with no reputation to lose, generally because they’re pretty bad at what they do. There are, no doubt, conservatives smart and self-controlled enough to lie plausibly, or at least preserve some deniability, and defend Trump’s policies without making fools of themselves. But those people have gone into hiding.

I never thought I’d be so grateful for incompetence.

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That Pesky Thing Called Reality

There are plenty of reasons to oppose Trump’s “big beautiful wall,” and I’ve listed a number of them in previous posts. Most fall in the category of “if the wall were built, this is why it wouldn’t deter unauthorized immigration or drug trafficking.”

Less attention has been paid to the reasons such a wall won’t ever be built.   

As Elie Mystal recently wrote at Above the Law,

Can all of us lawyers and law students and legal scholars and legal reporters just talk among ourselves for a minute? Can we all just pull up a chair or a stool or whatever bouncy-ball thingy you think is blasting your core right now? Can we just talk as adults and acknowledge that the federal government has ground to a halt over a wall that will never, ever get built?

The reason for Mystal’s confidence can be found in the Fifth Amendment, which–among other things– prohibits government from taking private property without just compensation. That “takings clause” is why states have eminent domain laws.

Opposition to the use of eminent domain for any but the most obviously “public” purposes   has been a staple of Republican ideology, so I’ve been surprised that so few supposed conservatives have raised the issue.

My real life friends know that I’m basically a Republican when it comes to takings. I don’t even put the scare quotes around the term. A whole canon of law has been built up around the Fifth Amendment’s commandment, “nor shall private property be taken for public use, without just compensation.”

 We can debate the finer points: I do not happen to think that Kelo v. New London is the worst Supreme Court decision in the history of mankind, as some conservatives do. … But it isn’t great! And there are conservative justices sitting on the Supreme Court who have figuratively been bred to oppose that decision. Add them to the progressives who will view Trump’s Wall as the bigoted monstrosity that it is, and I think you’re looking at 8-1 decisions against the government in eminent domain cases to build the wall. Only Justice Brett, he of the monarchical theory of executive power, can be reasonably be expected to side with the government on this issue. And even then, we know Kavanaugh seems to like to follow along with whatever the “cool” kids are doing.

The government doesn’t own most of the land on which the wall would be built–it would have to “take” land from those who own it, and people who stand to lose their property to allow construction of the wall will almost certainly go to court. Talking Points Memo recently quoted a Texan whose property is at risk:

The federal government has started surveying land along the border in Texas and announced plans to start construction next month. Rather than surrender their land, some property owners are digging in, vowing to reject buyout offers and preparing to fight the administration in court.

“You could give me a trillion dollars and I wouldn’t take it,” said Cavazos, whose land sits along the Rio Grande, the river separating the U.S. and Mexico in Texas. “It’s not about money.”

I couldn’t agree more with Mystal’s concluding paragraph.

I mean, if Trump was saying, “I’m going to shut down the government until Congress funds my matter transporter so I can beam Latinos back to their country of origin,” I feel like the scientific community would be screaming, “The ability to deconstruct and reconstruct living beings at the molecular level does not exist because of limitations imposed by quantum uncertainty!” Similarly, lawyers should be screaming, “The United States government does not have the capability of taking private lands on this scale because of limitations imposed by the Fifth Amendment.”

It’s not just lawyers who aren’t screaming. I wonder why all those conservative Republicans who raise holy hell about property rights and takings are so quiet about the threat to property ownership posed by the bloviator-in-chief.

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Telling It Like It Is

What was that line from Jaws? It’s baaaack…

“It” in this case is the Indiana Legislature, which is beginning its “long” session. (I don’t know how other state’s lawmaking bodies work, but in Indiana, which has a two-year budget cycle, the session is longer the year the budget is considered.) When I last looked, over 300 bills had been filed by members of the State Senate, and 150 or so by members of the House. As you might imagine, a number of them won’t see the light of day–and most probably shouldn’t.

For that matter, Hoosiers would be better off if some of the bills that will survive quietly died. But that’s a post for another day…

Indiana’s teachers had hoped this year’s budget would include funding for a much-needed raise. That may still happen, and it clearly should, but several lawmakers have issued opinions to the effect that, yes, teachers should get raises, but the school corporations that employ them should just take the money for those raises from another part of the school budget.

This is totally unreasonable, of course, because most of those “other” funds are needed and/or legally earmarked for a variety of purposes, but Indiana’s legislators rarely allow their lack of understanding of the way things actually work get in the way of their opining.

In an op-ed for the Lafayette Journal and Courier, the Superintendent of the West Lafayette School System, Rocky Killion, responded. He began with the obvious:

This week the House Education Committee, on a partisan vote of 9-3, passed House Bill 1003.  House Bill 1003 affirms increasing teacher salaries but provides no additional funding to public schools to do so.  Instead, the GOP calls on public schools to spend differently…

What they do not seem to understand is that unless more revenue is provided, there will be less money to provide custodial, maintenance, secretarial, health, special education and other support services for students and teachers.

Then he turned the tables–very effectively.

If legislators are serious about increasing teachers’ salaries without increasing school funding, I would suggest the same to them, spend differently on public education.  Here are three ways to increase teacher salaries without increasing school funding:

Killion’s first suggestion was to quit spending over $100 million annually on standardized testing. As he quite correctly points out, standardized testing doesn’t improve student learning; what he doesn’t say–but many education scholars confirm–is that such testing distorts what happens in the classroom, because teachers feel impelled to spend more time on subjects that will be  tested than on subjects (like civics, for example) that won’t.

 A statistically sound approach for measuring student achievement and holding school corporations accountable for student learning is that of measuring student academic growth over time, which standardizing testing does not do.  Reallocate this resource to teacher salaries.

His second recommendation was similar:Quit spending over $10 million on IREAD-3 testing.

Teachers do not need this test to determine whether or not a student is reading at a third-grade level.  The best, most efficient way to find out if a third-grade student is reading at a third-grade level is by asking a third-grade teacher.  Reallocate this resource to teacher salaries.

I unequivocally endorse his third recommendation, which was to quit spending over $70 million on student vouchers, and reallocate those resources to teacher salaries.

Vouchers were Initially justified as a way to allow children to escape “failing” public schools, but 60% of Indiana’s vouchers are used by students who have never attended a public school.

What Killion was too “politically correct” to mention in his op-ed was that researchers have found no improvement in academic achievement by voucher students. (A couple of studies have found a decline, at least in math.) It has become quite clear that Indiana’s voucher program–the largest in the U.S.–is simply a way to take money from public education and give it to the religious schools that constitute over 90% of the schools accepting vouchers.

Voucher programs were a strategy devised to evade the Constitution’s Establishment Clause, which prohibits tax support of religious institutions. The courts accepted the argument that the money was “really” going to the parents, and not to a parochial school. That it was always a specious argument has become glaringly obvious.

Indiana’s public school teachers ought not continue to be underpaid so that religious schools can suck at the public you-know-what.

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Blame The Courts

What’s that old saying? The enemy of my enemy is my friend?

 Over at Dispatches from the Culture Wars a few days ago, Ed Brayton actually endorsed a theory offered by Jonah Goldberg.

Both Goldberg’s column and Brayton’s comment on it were offered in the run-up to Trump’s demand that he be given broadcast time to address the nation about the “crisis” at the border. Both predicted that Trump would declare a “national emergency” entitling him to ignore Congress and build his ridiculous wall.

As we now know, during that broadcast Trump simply reiterated his previous, fabricated “reasons” for building the wall. But he has continued to threaten the tactic.

Goldberg noted that such a move would be contrary both to common sense and the rule of law.

Do we really want to establish the precedent that the president can simply declare “It’s an emergency” like some magical incantation and then completely bypass property rights and the will of Congress just so he can fulfill a campaign promise that, if Sam Nunberg is to be believed, began as a consultant’s gimmick to get the candidate Trump to talk about immigration and what a great builder he is?

Moreover, if Trump actually attempted to use the military to seize private land, spending money Congress did not authorize, think of what the news cycle would look like, not from Trump’s perspective but from the perspective of other elected Republicans. Assuming that the Supreme Court or Congress didn’t stop him — a big assumption — would you like to run for office defending hourly images of armed U.S. troops kicking in doors or rolling out concertina wire? Is it beyond imagining that at least one Texas or Arizona rancher would get shot defending his property?

According to Goldberg, the theory then circulating in Washington was that the White House was fully aware that an order of that sort would generate multiple lawsuits and would likely be blocked almost immediately by the courts. That–in their view–would be the best of all possible worlds; it would extricate Trump from a box of his own making. He’d be able to tell his base he’d done everything he could, but his plan for America’s safety had been blocked by those terrible judges.

The reason this scenario seems so plausible is because such a patently illegal declaration would mimic a dishonest and destructive strategy that is pursued with some regularity by legislators at all levels of government. They can pass a bill they know to be unconstitutional, placating the constituents who want it, secure in the knowledge that the courts will bail them out.

I still remember a long-ago conversation with a student in one of my graduate classes, who happened to be a State Representative. He had just voted for a bill requiring schools throughout the state to post the Ten Commandments. I knew he was fully aware that such a law would violate the Establishment Clause, and I asked him why he had voted for something he knew to be unconstitutional. He replied that the “folks back in Mayberry” would be angry if he’d voted no, so he’d decided to “let the courts take the heat.”

There are a number of problems with that strategy. It rewards moral cowardice, and it feeds hostility to the judiciary among people who don’t understand the constitution, the function of the courts, or checks and balances.

And eventually, if Trump and the GOP get their way, pretty soon we won’t have competent, principled judges on the federal bench who are willing to “take the heat” in order to protect the constitution from cynical legislators pandering to constitutionally-illiterate voters.

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Speaking Of Symbolism…

Most sane observers understand that Trump’s wall is entirely symbolic. If built, it clearly wouldn’t prevent the entry of undocumented folks (the majority of whom fly in and overstay their visas) or the successful smuggling of drugs (which tend to come by ship or air).

Even Fox News rebutted the Administration’s claim that 4,000 terrorists had been stopped at the Southern border (the actual number appears to be 6 people on the watch list). I’m told that most of the Saudis responsible for 9/11 entered through Canada.

The obscenely expensive wall Trump wants to build between the U.S. and Mexico is solely intended to send a message: ignore the poem on Lady Liberty. If you are brown, you aren’t welcome.

The government shutdown triggered by his tantrum over the wall provided Trump watchers with another symbol–one more example of how truly corrupt our know-nothing President can be. Not that most of us needed the reminder.

As federal employees tried to figure out how they would pay their mortgages and put food on the table during the shutdown, as landlords threatened to evict tenants dependent upon Section 8 vouchers that stopped coming, as millions of Americans who rely on SNAP (food stamps) faced the likelihood that those benefits wouldn’t be forthcoming…Talking Points Memo reported that the President managed to keep a historic site incorporated in his hotel fully staffed.

WASHINGTON (AP) — Smithsonian museums are closed. There are no federal staffers to answer tourists’ questions at the Lincoln Memorial. And across the United States, national parks are cluttered with trash. Yet despite the federal government shutdown, a historic clock tower at the Trump International Hotel remained open Friday for its handful of visitors, staffed by green-clad National Park Service rangers.

“We’re open!” one National Park Service ranger declared around lunchtime, pushing an elevator button for a lone visitor entering the site through a side entrance to ride to the top of the 315-foot-high, nearly 120-year-old clock tower.

The Trump administration appears to have gone out of its way to keep the attraction in the federally owned building that houses the Trump hotel open and staffed with National Park Service rangers, even as other federal agencies shut all but the most essential services.

A watchdog group has filed a Freedom of Information request over the Trump Hotel’s exemption from a shutdown that furloughed hundreds of thousands of workers and crippled many agencies.

Completed in 1899, the Romanesque-style former post office is on the National Register of Historic Places. The GSA pays for the National Park Service to run the building’s clock tower for visits by the general public. The tower initially closed to the public after the shutdown started. The GSA noticed then that the deal under which the park service staffs the site had expired, and renewed it, and the park service reopened the tower this week, the agency said.

There could hardly be a clearer symbol of Trump’s priorities.

Are more than 800,000 hard-working federal workers desperately trying to make ends meet? Is air travel becoming dangerous as TSA personnel call in sick rather than continue working without pay? Are the national parks overflowing with trash? Well, first things first–we certainly don’t want to inconvenience Trump’s business.

The wall is a symbol of his bigotry; the park rangers tending to the clock tower are a symbol of his self-engrossed avarice.

His presidency is a shameful symbol of national decline.

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