My Father’s Daughter

I wrote this for my Dad on Father’s Day six years ago:

Earlier today, a friend suggested I be sure to let my Dad know how much of an influence he’s had on me. My immediate reaction was one of, “Well, duh!” But then I realized this is not something I do nearly often enough.  My Dad’s not the sort of guy who’s particularly comfortable with the expression of emotions — especially not the mushy sort.  I, in turn, have gotten in the habit of not expressing them to him.  And it’s kind of a shame.  Because my Dad truly is one of the best men I know. 

He didn’t necessarily have what I’d refer to as an easy childhood, (though if I were to bring that up to him, he’d likely dismiss it.) Still, he did well in school, and followed up college with law school. This, in turn, was followed by a two year stint in the Army.  If memory serves correctly, he graduated from law school, married my Mom, and headed off to basic training, all within a two week period in July of 1956. He has steadfastly supported my Mom and our family ever since. 

The memories I have of my Dad from my childhood are of a man who made up silly rhymes and songs and sang them to me. Who made a point to lift me up off my feet whenever we stepped over a curb. Who happily put my stuffed skunk (“Skunkie” — go figure) on the steering wheel of his car and let him “drive”.  Who took me with him to put up campaign signs for various political candidates, and instilled in me early on a keen interest in all things political.

Later, as I became a snotty teenager, our relationship became a bit strained. I know I was no peach to live with, and Dad, I think, always felt at a bit of a loss as to how to interact with me once I was no longer a little girl who giggled at his silliness. Still, he endured my adolescence without throttling me, and even had me come work for him in his law office the summer I was 15.  (All my friends were already 16 and gainfully employed.)  You might think that stint is what inspired my later decision to become a lawyer myself, but mostly, I answered the phones and read romance novels that summer, so I can’t rightly say that it was.

There’s no denying, however, that his career choice influenced my own. I don’t know that I consciously thought of it that way when I chose to follow in his footsteps.  But I do know that within me has always been the desire to make him proud.  I know that I am certainly proud of him. He’s worked hard all his life. He’s been a good husband to my Mom. He’s been a die hard Tiger fan and alum. He’s always been active in politics and, though our philosophies no longer align, I greatly respect his dedication to his beliefs.  He’s not only attended the same church for almost 50 years, he’s given countless hours of his time to it, serving in multiple capacities.  He’s turning 78 in a month and still goes out for a 3 mile jog (or, as he calls it, “chog”) on a regular basis.

One thing that’s meant so much to me over the years is how very many times when I’ve encountered someone who knows my Dad, the first thing they’ve said is, “He is the nicest man.”  It’s true. My Dad is nice.  He is kind.  He is a gentle man and a gentleman. And though he may not verbalize it well or often, I have no doubt that he loves me.  He has always been there for me, whether it was helping me find a job, or picking up my daughter on short notice, or helping me wrestle a lawnmower.  I’m sure that there are times he doesn’t quite know what to make of me, but he never wavers in his support of me.  And I am so very lucky to have him as a father. 

Love you, Dad.  Happy Father’s Day.

All of it still holds true, except that Dad is now closing in on 84. There have been some challenges health-wise in the intervening years – a couple spills, a pacemaker, the early stages of Alzheimer’s – and he doesn’t go out for his “chogs” anymore, but Dad’s still shuffling along and I’m happy to get to celebrate Father’s Day with him today.

There’s a song that always reminds me of him, even though the particulars of the story differ from ours:

I thank you for the music and your stories of the road
I thank you for the freedom when it came my time to go
I thank you for the kindness and the times when you got tough
And papa, I don’t think I said I love you near enough
For my Dad and me, it wasn’t music – though his mother was an accomplished pianist and his grandfather, a cellist, Dad’s musical showcasing generally consisted of singing while in the shower. Loudly. It wasn’t even the law, though we obviously have that in common.
Oddly enough, it was politics. My earlier piece alluded to it, but some of my earliest memories of my Dad involve campaigning and political events. Shoot, politics even figure into my birth: He had just returned home from the Democratic Convention in Chicago in 1968 when he had to take my Mom to the hospital to have me. I recall being maybe 3 years old and attending a lunch with Senator Stuart Symington, only in my little-kid mind, I conflated “Symington” with “Washington,” and so, for a long time, was convinced I’d dined with the father of our country.  Dad’s law school roommate was Congressman Ike Skelton, who was kind enough when we visited DC in the summer of 1982 to take me down onto the Floor of the House with him and cast a vote for him.  I don’t recall a single election growing up when we didn’t have someone’s campaign signs in our yard. Point being, my Dad’s interest and participation the political world instilled in me a love and appreciation of it, as well. It’s the primary reason I majored in political science, and why I continue to follow politics so closely today, even when it’s beyond frustrating.
So why bring it up in this Father’s Day tribute? Well, first, as noted above, for my Dad and me, politics has been our “thing.” Second, and more importantly, my Dad is one of the primary reasons I’m able to write a piece like Otherization Nation and know, despite significant pushback from those who are jaded and/or pugnacious, that hating people for their politics isn’t the answer.
My Dad is a diehard Democrat; his best friend of 60 years (and my godfather)? A diehard Republican. And yet they (and their wives) go out to dinner most every Saturday night, were bridge partners (or opponents) for years, celebrated numerous holidays and family events together. They may not have always appreciated one another’s political views, but they didn’t let that overshadow their friendship. My maternal Grandmother was a Republican, too. That never interfered with my Dad being a supportive and loving son-in-law to her, nor did it diminish her fondness for him.
My political views are obviously quite different from my Dad’s (and most of my family’s.) And yet, my core values are his: Love of country, appreciation for the principles upon which it was founded, devotion to family, Protestant work ethic, compassion for those less fortunate, treating others with kindness and respect (I do try, but know I fall short at times), standing up for what you believe in. He and I are hardly unique. These are values held by millions, regardless of their political persuasion. Are they shared by everyone? Of course not. But we’ve seemingly forgotten how to look for those values we do share in those who play for the opposite “team.” My Dad is a constant reminder to me of the importance of doing so. Hopefully, he realizes he’s taught his daughter well.
The leader of the band is tired and his eyes are growing old
But his blood runs through my instrument and his song is in my soul
My life has been a poor attempt to imitate the man
I’m just a living legacy to the leader of the band
I am a living legacy to the leader of the band

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Otherization Nation

We have to stop beating the snot out of one another. That thought kept running through my mind this morning as I drove into work listening to news of the shooting in Alexandria, Virginia.  Well, that thought and this song:

It’s fifty years old, but it’s eerily all-too-fitting today.

There’s something happening here
What it is ain’t exactly clear
There’s a man with a gun over there
Telling me I got to beware

I think it’s time we stop, children, what’s that sound
Everybody look what’s going down

Gunfire was probably the last thing on the minds of Congressional members and aides as they took the field this morning at a park in Alexandria to practice for tomorrow night’s Congressional Baseball game.  Just as it was for the witness who shot this raw video this morning (WARNING: Graphic, language):

The shooter, James T. Hodgkinson, 66, of Belleville, Illinois, was killed by Capitol Police, so he can’t elaborate as to his motives, though they certainly appear to be political.  Hodgkinson left enough breadcrumbs behind, via social media posts and letters to the editor of his hometown newspaper, to shed a fair amount of light on his views, even if not as to what specifically set him off this morning.

There’s battle lines being drawn
Nobody’s right if everybody’s wrong
Young people speaking their minds
Getting so much resistance from behind
It’s time we stop, hey, what’s that sound
Everybody look what’s going down

Political discord is nothing new for our nation, of course. We have a long, and sometimes bloody, history of it. But there has been a perceptible shift in the way “everyday people” interact with one another in recent years. Everything — and everyone — seems exceptionally polarized. Virtually every aspect of life is viewed through the right-left lens.

As many others have noted, I believe the way in which we communicate and interact with our fellow citizens plays a huge role in that. We talk to (or, rather, at) one another through screens and keyboards more than face-to-face or ear-to-ear anymore. We lazily let selfies and memes and 140 characters speak for us. We size people up by what “team” they’re on — and allow them only two choices: “with” or “against.”

What a field-day for the heat
A thousand people in the street
Singing songs and carrying signs
Mostly say, hooray for our side
It’s s time we stop, hey, what’s that sound
Everybody look what’s going down

Instinctive reactions to anything we find offensive (and there’s so much we find offensive) include boycotts and protests. And protests are so prevalent, they’re only notable when they devolve into violence and destruction.  We’ve seemingly forgotten how to converse with one another, talk through our differences, agree to disagree.

This morning, as news of the shooting came in, I saw and heard comments attributing it to vitriolic rhetoric and labels — “deplorables,” “xenophobes,” “bigots,” “racists,” “Repuglicans.” Ironically, I’ve seen and heard some of the very people identifying the role of that rhetoric in the violence turn right around and label their perceived “opponents” as “sub-human,” “libtards,” “cucks,” “Demoncrats.” We’ve perfected the art of otherizing each other, which in turn dehumanizes and thus legitimizes the very violence we purportedly decry.

Paranoia strikes deep
Into your life it will creep
It starts when you’re always afraid
You step out of line, the man come and take you away

We better stop, hey, what’s that sound
Everybody look what’s going down

And man, have we become skilled at pointing fingers.  It’s their fault. They started it.

So…how do we finish it? Those of us who aren’t okay with this daily, hourly, constant war with our fellow citizens? Maybe by acknowledging that we’re all, on some level, to blame. Or, if we’re unwilling to accept blame, at least take responsibility and do our part to stop this madness.

As many have observed, this morning’s practice was in preparation for tomorrow night’s Congressional Baseball game. Which, believe it or not, is a bipartisan effort over a century old.

-The idea is “Senate and House members of each party team up to settle scores and solidify friendships off the floor and on the field,” the Congressional Baseball Game’s website notes.

Some might question how politicians who seemingly can’t agree on a single thing are able to “solidify friendships.” For one thing, they play for a good cause — this is a charity event, this year designed to raise money for the Boys and Girls Club of Greater Washington, the Washington Literacy Center, and the Nationals Dream Foundation.

More importantly, these are people who, despite their public presence and pervasive use of social media, actually do, by the very nature of their role, interact with one another face-to-face on a regular basis. That truly does mitigate the tendency to otherize — and that despite the fact that they are, by definition, political creatures.

Stop, hey, what’s that sound
Everybody look what’s going down

Stop, now, what’s that sound
Everybody look what’s going down

Stop, children, what’s that sound
Everybody look what’s going down

Yet they aren’t letting this tragedy win the day.

The game is on. There’s a call — from both/all sides — to unify. There’s an air of resolve. We need to build on that. We need to be better to one another.  We need to stop beating the snot out of one another. We need to quit otherizing one another. We need to remember the wise words of one of our greatest leaders:

“We are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory will swell when again touched, as surely they will be, by the better angels of our nature.” — Abraham Lincoln

 

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There’s Something About Jeff….

I have an observation about Attorney General Jeff Sessions following his testimony before the Senate Intelligence Committee this afternoon:

He’s just not a very good witness. To be clear, I don’t think he’s a bad guy, but he’s not nearly as quick on his feet as I’d expect an experienced litigator to be. There were times throughout his testimony when he was attempting to walk a very fine line — and it showed. He wobbled like a novice tightrope walker.

In his defense, years as a litigator doesn’t guarantee skill and finesse when one is on the receiving end of interrogation and intense scrutiny. At a minimum, though, I would expect him to recognize what sorts of responses look bad on the part of a witness and largely avoid them.

For instance, there clearly were some areas where he intended not to testify, most notably in relation to questions concerning conversations he had with President Trump and other DOJ officials. Others will surely argue back and forth for the next 24-48 hours regarding whether a privilege — or, at least, a reasonable expectation of confidentiality –protects such conversations from discovery in a Congressional hearing such as this, but regardless of one’s position on the issue, Sessions knew ahead of time he’d be declining to answer certain questions.  He should have had a comfortably-rehearsed, consistent response to any such questions and simply repeated it, rather than hemming and hawing around it each time.

Moreover, he had to know he’d face some withering questions from the Democrats on the committee, yet in the face of Kamala Harris’ filibustering cross-examination, Sessions at one point became visibly flustered, responding, “I’m not able to…uh…be rushed this fast — it makes me nervous.”

I recognize he’s human, but he’s the Attorney General of the United States with years of litigation experience. Cowed and uncertain just isn’t a good look.

I’ll give him this —  he did show some teeth during Ron Wyden’s questioning.

Overall, though, he came off as dissembling. Which, while I don’t think it causes further damage to the administration, really doesn’t help it at all.

 

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Trump & Comey: Can They Have Their Cake and Eat It, Too?

I noticed a curious thing following James Comey’s testimony before the Senate Intelligence Committee yesterday:

Donald Trump seemingly wants to have his cake and eat it, too.

Or, put another way:  “Comey is a liar.” But also, “Comey’s testimony vindicates me.”

Okay…so, Comey’s lying when it makes Trump look bad and telling the truth when it makes Trump look good? Yeeahhhhh…that’s the ticket!

In fairness to Trump, though, Comey seems to want to play the same game.  He testified that he thought Trump was a liar (and maintained that was why he made a point to keep detailed records of their encounters.) But in response to Senator Diane Feinstein’s query as to why he believes he was fired, Comey replied:

“Guess I don’t know for sure. I believe the — I take the president at his word, that I was fired because of the Russia investigation. Something about the way I was conducting it, the president felt, created pressure on him that he wanted to relieve.”

So…Comey thinks Trump’s a liar and took extra precautions to document everything for that very reason, but on this…he takes him at his word?

Seems a bit like both are trying to have their cake and eat it, too. Not that they’re alone in that.

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Three Bombshells from Comey’s Testimony

There will be plenty of hot takes on former FBI Director James Comey’s testimony before the Senate Intelligence Committee today. Here’s a quick list of three “bombshells” from today’s testimony:

1. The Infamous Tarmac Meeting Prompted Comey to Issue His July 5th Statement

Comey testified that the tarmac meeting between then-AG Loretta Lynch and Bill Clinton influenced his decision to publicly declare the findings of the investigation into Hillary Clinton’s private e-mail server. His rationale was that this meeting created the appearance of a conflict of interest on the part of Lynch, and his issuing a statement on the matter was an effort to blunt that.

Not only that, he revealed that, as he was preparing to testify in Congress regarding that investigation, Lynch admonished him to refer to it as a “matter,” rather than an “investigation.” Even though it was a criminal investigation.  This “confused and concerned” him.

2. The Most Important Aspect (to Trump) Is the One Piece of Information Which Wasn’t Leaked.

As he did in his written remarks released yesterday, Comey confirmed that he assured Trump on three occasions that he was not personally under investigation. After Trump requested that he make a public announcement to that effect, discussions were held with the FBI leadership team about whether this should be done and ultimately, it was concluded that it should not be, in part, because it might trigger a duty to make a further public declaration if that ever changed.  (And we know how well that went for Comey with the Clinton e-mail investigation.)

Senator Marco Rubio made a pointed observation about this during his inquiry:

3. Comey Leaked His Memos Via a Friend.

Comey also acknowledged that he leaked his memos to the press via a friend in the hopes that it would lead to the appointment of Special Counsel:

There were other interesting tidbits from today’s testimony. For instance, Comey had no compunction about calling Trump a liar and, in fact, indicated he made a point to memorialize their interactions for that very reason.  Comey stressed that many of the news reports involving leaks of classified information have been incorrect. Also, Senator John McCain seems to have been a bit…confused during his questioning of Comey today.  Lastly, Comey thinks very highly of Special Counsel Robert Mueller, and appears confident that he will get to the bottom of this — whatever this ultimately ends up being.

All in all, it was an interesting session, even if it doesn’t answer all the questions swirling around the Trump administration, Comey’s dismissal, and the ongoing investigation into Russian meddling in the election.

 

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President Trump Has It Wrong

Now, now…before Trump fans and apologists become overly rankled, hear me out on this. Early this morning, President Trump was back at it again:

But I’m inclined to agree with Jay Nordlinger’s take on this:

The “FAKE MSM” to which Trump is referring would like nothing more than for him to tweet early and often. First, it’s usually a source of great content. (And by “great” I mean traffic generating, i.e., quantity, not quality.) Second, and more importantly for much of the “FAKE MSM,” Trump’s tweets are a boundless source of ammo. How much trouble has he bought himself with his infamous “wiretap” tweets from early March? What about the ham-handed tweet directed at Comey regarding theoretical “tapes” of their conversations?  How much grief has he caused his own people by contradicting them?

No, I don’t think the “FAKE MSM” wants Trump to quit tweeting at all. I’ll tell you who does, though: People who don’t want his presidency to be a colossal failure. I’ve alluded to this before – I’m a TrumpSkeptic™. I opposed his candidacy, I didn’t vote for him, but I wasn’t heartbroken that Hillary Clinton lost. And now that he’s our President (yes, he’s mine as well as yours), I would far rather see him have a successful tenure than a disastrous one.

I understand the value of social media – and Twitter, in particular. I understand the appeal of going around the anti-Trump media. And I think Trump, of all people, is uniquely situated to take advantage of social media to further his cause. But he’s careless and impetuous with it. He’s sloppy and it far too often hurts him, the people around him, and, by extension, the country. How much more would he – and the country – benefit from a slightly more measured approach?

Messaging and optics do matter. You can be unconventional and still be savvy. I’d like to think a guy whose spent much of his life developing his brand and marketing himself might be able to figure that out. Until he does, yes, I’d prefer he stay off the Twitterz.

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You Say Covfefe, I Say Covfafa…

Well, no. No, I don’t. I can honestly say I’ve never said “covfefe” — nor “covfafa” — before. That could change here, though, because POTUS has gifted us with a new term:

covfefe

In an age where tweets set off firestorms on an hourly basis, this one was no exception.  There was speculation as to the proper pronunciation of the term:

Some voiced concern:

(It’s okay, Frank – the tweet is now down. Though, it will, of course, live in our hearts forever.)

While others had great fun with it:

The term has even found its way into the Urban Dictionary already:

urban-dictionary

But I think Jon Gabriel summed it up best:

Can hardly wait to see what POTUS tweets next! Well, kind of….

UPDATE: The tweet is deleted, and we have a new tweet.

Editor’s note: Twitter is claiming he’s trying to pretend he was in on it all along. But if you ask me, it just looks like he’s trying to joke it off. Like whoops, typo, ha ha covfefe. Shrug. – Caleb.

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SCOTUS Overturns 9th Circuit 8-0

Believe it or not, the Supreme Court doesn’t always split along ideological lines.  Take, for instance, today’s Opinion in the case of County of Los Angeles v. Mendez.  The Court vacated and remanded the case after holding that the Fourth Amendment provides no basis for the Ninth Circuit’s “provocation rule.”

Justice Alito authored the opinion, in which all other Justices, except Gorsuch, joined. (It’s not unfair to assume Gorsuch would have joined, as well, had he participated in the argument and consideration of the case.  He did get billing in this decision, also published today.) The case involved three Fourth Amendment claims by Angel Mendez and Jennifer Garcia: a warrantless entry claim; a knock-and-announce claim; and an excessive force claim. Mendez and Garcia were sleeping inside a shack in the back yard of a property being searched by the Los Angeles County Sheriff’s Department. Two deputies searching the rear of the property opened the door of the shack sans warrant or announcing their presence. Mendez greeted them with a BB gun and the officers responded with multiple shots which wounded Mendez and Garcia.

The District Court found in favor of Mendez and Garcia on the warrantless entry and knock-and-announce claims and then, on the excessive force claim, found the deputies’ use of force reasonable under the Supreme Court case of Graham v. Connor, but employed the “provocation rule” crafted by the Ninth Circuit to find the officers liable for excessive force, as well. Without getting too far into the weeds, the “provocation rule” provides that an otherwise reasonable use of force by an officer becomes unreasonable if 1) the officer “intentionally or recklessly provokes a violent confrontation” and 2) “the provocation is an independent Fourth Amendment violation.”

The Supreme Court begged to differ, noting that the provocation rule “is an unwarranted and illogical expansion of Graham.”  The Ninth Circuit is somewhat notorious for being reversed by SCOTUS, but this ruling addressing the appellate court’s inappropriate expansion of Supreme Court precedent caught my attention in light of speculation as to what the Court will do with the Trump Administration’s travel ban.

That is, assuming the Court actually agrees to hear the matter.  In the travel ban litigation, most expect the Ninth Circuit will, like the Fourth Circuit, find the ban unconstitutional.  If that happens, there will not be a circuit split and, as Ilya Shapiro mused last night, that might mean SCOTUS declines to take it up:

While that would certainly come as a disappointment to many, it wouldn’t necessarily be out of character for the Court.  Just today, it declined to act on several “hot button” cases, including a major gun-rights case out of California, a Fourth Amendment challenge to the government obtaining historical cell-phone location records without a warrant, and a First Amendment challenge by the Colorado baker who objected to create a cake for a same-sex wedding ceremony. Stay tuned!

 

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SCOTUS WATCH: Is Gorsuch the Key to a Final Decision on Trump’s Travel Ban?

On Thursday, the 4th Circuit Court of Appeals upheld a Maryland District Court decision which placed a nationwide injunction on Donald Trump’s infamous executive order/“travel ban” (“EO-2”), barring its implementation.  The ruling came as a surprise to some, as EO-2 was thought to be a substantial improvement on EO-1  (previously struck down by the 9th Circuit Court of Appeals), and the 4th Circuit is considered a more conservative court than the 9th. (Interestingly, the 9th Circuit will also rule on the issue shortly.  Oral argument was heard there on May 15th, following the ruling issued by a Hawaiian District Court, but given their previous ruling on EO-1, the odds don’t look to be in Trump’s favor there either.)

In a sharply worded opinion, joined in full by seven judges with three more concurring with the result, Chief Judge Roger Gregory right off the bat signals where the Court is going, by pointedly observing that EO-2, “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”  As a preliminary matter, the Court held that the Plaintiffs had standing to bring the challenge to EO-2.  The Court then considered the proper test to apply to determine whether the Order violates the Constitution.  The District Court applied the Lemon test, a standard which courts traditionally use to assess laws challenged under the Establishment Clause. Under Lemon, government action will be deemed to violate the Establishment Clause unless it: 1) Has a significant secular purpose; 2) Does not advance or inhibit religion as its primary effect; and 3) Does not foster excessive entanglement between government and religion.

The government argued that the proper standard was set forth in the 1972 case of Kleindienst v. Mandel, which sets forth a more limited review on immigration matters, granting significant deference to the executive branch in that area. Under Mandel, an order such as EO-2 merely needs to be “facially legitimate and bona fide” to survive a challenge.

The Court of Appeals ultimately applied an amalgam of the two tests, first examining EO-2 under the requirements of Mandel.  While the Court agreed that the stated interest of national security meets the “facially legitimate” requirement of Mandel, it zeroed in on numerous statements by Trump advisors and Trump himself to conclude that “national security” was merely a pretext for what amounts to a Muslim ban, and that the government was acting in bad faith by issuing EO-2.  This then opened it up to an examination under the more rigorous requirements of Lemon.  The Court found that EO-2’s primary purpose was religious – i.e., “to exclude persons from the United States on the basis of their religious beliefs.” Thus, it fails the first prong of the Lemon test, making it likely the Plaintiffs will succeed on the merits of their Establishment Clause claim, and thereby justifying the injunction.

Though the opinion is lengthy (205 pages!), it didn’t take long for legal scholars and pundits to weigh in with their respective takes on it.  At the Washington Post, Ilya Somin viewed the decision as “an important victory for opponents of the travel ban.”  Somin opines that, “Ultimately, the revised order has most of the same flaws as the original version.”

Over at National Review, David French tears into the 4th Circuit’s ruling, noting that:

“A strange madness is gripping the federal judiciary. It is in the process of crafting a new standard of judicial review, one that does violence to existing precedent, good sense, and even national security for the sake of defeating Donald Trump. We’ll call this new jurisprudence “Trumplaw,” and its latest victim is once again the so-called Trump travel ban. The perpetrator is the Fourth Circuit Court of Appeals.”

French chalks the ruling up to a finding that “hurt feelings” trump (no pun intended) “the government’s asserted national-security interest in pausing to reexamine foreign entry from hostile and war-torn countries.”  French is highly critical of the Court’s decision to look behind the Order which, on its face, clearly is lawful, to determine “good faith.”   He concludes:

“The sad reality is that this takes place in the aftermath of an event — the Manchester bombing — that demonstrates that one of the countries on the list, Libya, is in fact a hotbed of terrorist activity. The bomber traveled to Libya and allegedly had help there. He was a British citizen and not subject to the travel pause, but his journey illustrates the very real dangers of lawless regions gripped by jihad. Is it unconstitutional to pause entry from that nation to make sure that we can properly vet and screen for ISIS sympathizers? The Supreme Court has always said no. Today, the Fourth Circuit says yes. Today, the Fourth Circuit has chosen to distort the law and risk our national security to stop Donald Trump.”

Following the Court’s ruling, Attorney General Jeff Sessions issued a statement indicating his intent to appeal the matter: “This Department of Justice will continue to vigorously defend the power and duty of the Executive Branch to protect the people of this country from danger, and will seek review of this case in the United States Supreme Court.”  The government has 90 days to file its appeal but is expected to do so sooner.

Now all eyes are on the Supreme Court – what will a Court which now includes Neil Gorsuch do with this particular hot potato?  I imagine most would consider Kagan, Sotomayor, Ginsburg, and Breyer safe bets to uphold the 4th Circuit’s ruling.  Similarly, odds are that Alito, Thomas, and Roberts will rule against it.  That leaves Kennedy and Gorsuch.

While Kennedy does sometimes side with the liberal wing of the Court, in my assessment, he will not do so in this arena.  His prior rulings point to his inclination to limit the courts’ interference with the executive branch when it comes to immigration matters. For instance, in the 2001 case of Zadvydas v. Davis the majority held that the Attorney General did not have the power to indefinitely detain aliens who were admitted to the United States, but subsequently ordered removed.  Though the Court acknowledged the plenary power of the political branches’ over immigration, it maintained that power still “subject to important constitutional limitations.” Kennedy filed a dissent, noting:

“Far from avoiding a constitutional question, the Court’s ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court’s own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowledged, may be a significant one in some later case; but it ought not to drive us to an incorrect interpretation of the statute. The Court having reached the wrong result for the wrong reason, this respectful dissent is required.”

More recently, in the case of Kerry v. Din, Kennedy concurred with Scalia, Roberts, Thomas, and Alito, who, as the majority, reversed the 9th Circuit holding that the Plaintiff had a protected liberty interest in her marriage that entitled her to a review of the denial of her husband’s visa.  Kennedy concluded there was no need to decide whether the Plaintiff had a protected liberty interest, because, even assuming she did, the notice she was given regarding the denial of the visa satisfied the requirements of Due Process.  In his concurrence, he cited to the Mandel case cited previously,

“The reasoning and the holding in Mandel control here. That decision was based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field. Mandel held that an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made “on the basis of a facially legitimate and bona fide reason.” Id., at 770. Once this standard is met, “courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against” the constitutional interests of citizens the visa denial might implicate. Ibid. This reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.” (Emphasis added.)

Assuming Kennedy stays true to form, that means Gorsuch will be the key. Will he side with the conservatives on this one?  The easy assumption is yes. However, Ilya Shapiro raised an interesting point back in February regarding EO-1, and the irony that Gorsuch would be more likely to oppose it than Merrick Garland would have.  Shapiro pointed out that Gorsuch “has led a campaign against judicial over-deference to the executive.” Gorsuch voiced concern about broad deference doctrines in the case of Gutierrez-Brizuela v. Lynch, wherein he stated, “There’s an elephant in the room with us today….But the fact is [broad deference doctrines] permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

However, with regard to EO-2, Shapiro sees it differently:

I’m inclined to agree.  My hunch is that Gorsuch’s anti-judicial-overreach instincts will hold sway, and the government’s plenary power argument will win the day – because of the specific arena in which this battle is being fought – i.e., immigration.

In the present case the 4th Circuit, seemingly spurred by distaste for Trump, has stretched beyond the Supreme Court’s precedents on immigration matters, using a combination of tests SCOTUS has not previously employed.  Anytime a Court is grafting a new test onto an established one, there is a strong indication they’re engaging in judicial activism, and my read of Gorsuch is that he won’t be keen on that approach.

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MIZZOU: From Bad to Worse

What do you do when enrollment is down and your budget has been cut?  Raise tuition and fees, of course! That’s what the Board of Curators for the University of Missouri has opted to do anyway.

MIZZOU has faced a sharp drop off in enrollment in the past two years, due in part to the uproar over on-campus protests in November 2015.  Freshman enrollment in 2015 was 6,000. In 2016, it was 4,700, and it is anticipated to drop down to 4,000 in 2017. That will be its smallest incoming class since the late 90’s.  As a result, the school is shutting down seven dorms.

Faced with the enrollment decline and budgetary reductions by the State, the University has opted to increase tuition 2.1% (the maximum under law) and increase student fees, as well.  I’ll confess I don’t recall all that much from Walter Johnson’s Econ 101 class*, but this strikes me as counterintuitive.  Apparently, I’m not alone in that:

 

 

*Yes, I’m a MIZZOU grad.

 

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