Chris Spangle, Greg Lenz, Tad Western, and Chris Mayo separate facts from hysterical hyperbole (about 30 minutes in) on Trump’s first actions as President. We also introduce our new “Dear Leader” segment where we help the audience solve problems.
Supreme Court Justice Neil Gorsuch
- Widely acclaimed jurist, a favorite of conservatives and libertarians but also very respected by liberal colleagues. He’s exactly the kind of elite, educated figure who’s traditionally made it onto the Court.
- His mother, Anne Gorsuch Burford, was Ronald Reagan’s director of the Environmental Protection Agency from 1981 to 1983. A graduate of Columbia (where he was a Truman scholar), Oxford (where he got a doctorate under the acclaimed Catholic legal philosopher John Finnis as a Marshall scholar), and Harvard Law (which five other members of the Court attended)
- Gorsuch clerked on the DC Circuit and then for both Justices Byron White and Anthony Kennedy
- President George W. Bush appointed to him to the 10th Circuit
- Speech he gave to Case Western University’s School of Law on Scalia:
“But tonight I want to touch on a more thematic point and suggest that perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future.
But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be— not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
- Published a Policy Analysis for the Cato Institute: Will the Gentlemen Please Yield?—A Defense of the Constitutionality of State-Imposed Term Limitations
“The text of the Constitution leaves room for term limits. Article I, section 4, explicitly grants the states wide latitude to determine the times, places, and manner of congressional elections. This provision, in our judgment, fully empowers states to enforce term limits on members of their congressional delegations. Moreover, a term limit is harmonious with our constitutional guarantees of free speech or equal protection.”
Gorsuch, who wrote a full book on assisted suicide and euthanasia that, while fairly recapping both sides, came down decisively against legalizing the practice.
- In the book, Gorsuch offers a detailed critique of Peter Singer’s influential utilitarian argument for allowing euthanasia and of a similar one from fellow Circuit Court Judge Richard Posner, as well as critiques of autonomy-based arguments from philosophers like Ronald Dworkin.
Excerpt: “Human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.”
- Backed religious challenges to the Affordable Care Act: “No one before us disputes that the mandate compels Hobby Lobby and Mardel to underwrite payments for drugs or devices that can have the effect of destroying a fertilized human egg,” he wrote in a concurrence. “No one disputes that the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong.”
- Under the Religious Freedom Restoration Act, Gorsuch argued, the government must give broad deference to religious groups’ explanations of what their beliefs entail, even if those explanations seem inconsistent or unscientific.
- Like Scalia, he has shown a willingness to occasionally side with defendants on criminal law matters. He sided with a Albuquerque middle schooler who was strip-searched by his school, dissenting while his colleagues ruled that the school police officer and other employees are immune from lawsuits.
- 2012 dissent, he argued against applying the federal law banning felons from owning firearms to a defendant who had no idea he was a felon. And he’s expressed concern with overcriminalization, saying that states and the federal government have enacted too many statutes forbidding too much activity.
- Shown support for federalism by arguing against the idea of a “dormant commerce clause,” or the idea that the Constitution’s Commerce Clause not only allows Congress to regulate interstate commerce but bans states from doing so.
- Biggest difference between Gorsuch and Scalia is on matters of administrative law. Gorsuch has suggested that he thinks Chevron v. NRDC, a foundational decision that gives regulatory agencies broad deference in determining rules, was wrongly decided.
Neal K. Katyal, an acting solicitor general in the Obama administration, is a law professor at Georgetown and a partner at Hogan Lovells
“I was an acting solicitor general for President Barack Obama; Judge Gorsuch has strong conservative bona fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.”fides and was appointed to the 10th Circuit by President George W. Bush. But I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve); he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.”
“I have no doubt that if confirmed, Judge Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence — a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him. “
“In a pair of immigration cases, De Niz Robles v. Lynch and Gutierrez-Brizuela v. Lynch, Judge Gorsuch ruled against attempts by the government to retroactively interpret the law to disfavor immigrants.”
“In a separate opinion in Gutierrez-Brizuela, he criticized the legal doctrine that federal courts must often defer to the executive branch’s interpretations of federal law, warning that such deference threatens the separation of powers designed by the framers. When judges defer to the executive about the law’s meaning, he wrote, they “are not fulfilling their duty to interpret the law.”
Trump’s Controversial Executive Orders
First, the order temporarily halts refugee admissions for 120 days to improve the vetting process, then caps refugee admissions at 50,000 per year. Outrageous, right? Not so fast. Before 2016, when Obama dramatically ramped up refugee admissions, Trump’s 50,000 stands roughly in between a typical year of refugee admissions in George W. Bush’s two terms and a typical year in Obama’s two terms.
Second, the order imposes a temporary, 90-day ban on people entering the U.S. from Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen.
The ban is in place while the Department of Homeland Security determines the “information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” It could, however, be extended or expanded depending on whether countries are capable of providing the requested information.from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” It could, however, be extended or expanded depending on whether countries are capable of providing the requested information.
The ban, however, contains an important exception: “Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.”
The order itself provides for the necessary case-by-case exemptions to the temporary blanket bans.
There are reports that the ban is being applied even to green-card holders. This is madness. The plain language of the order doesn’t apply to legal permanent residents of the U.S., and green-card holders have been through round after round of vetting and security checks. The administration should intervene, immediately, to stop misapplication
Third, Trump’s order also puts an indefinite hold on admission of Syrian refugees to the United States “until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.” This is a return to the Obama administration’s practices from 2011 to 2014.admission of Syrian refugees is consistent with the national interest.” This is a return to the Obama administration’s practices from 2011 to 2014.
Fourth, there is a puzzling amount of outrage over Trump’s directive to “prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” In other words, once refugee admissions resume, members of minority religions may well go to the front of the line. In some countries, this means Christians and Yazidis. In others, it can well mean Muslims..religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” In other words, once refugee admissions resume, members of minority religions may well go to the front of the line. In some countries, this means Christians and Yazidis. In others, it can well mean Muslims.
The ban is deeply problematic as applied to legal residents of the U.S. and to interpreters and other allies seeking refuge in the United States after demonstrated (and courageous) service to the United States.
- Vox: Trump’s “refugee ban” — annotated by a former top Department of Homeland Security lawyer
- A poll of 1,200 Americans over the past two days finds that a plurality of Americans—49 percent—approve “strongly” or “somewhat” of Donald Trump’s ban on all refugees and travelers from seven majority-Muslim countries. Just 41 percent oppose the action.
- Sally Yates, acting Attorney General, instructs Justice Department not to defend the immigration Executive Order:
Alan Dershowitz on Yates: “She instructed the entire Justice Department not to defend President Trump’s wrong-headed executive order on immigration. The reasons she gave in her letter referred to matters beyond the scope of the attorney general. She criticized the order on policy grounds and said that it was not “right.”
She also referred to its possibly being unconstitutional and unlawful. Had she stuck to the latter two criteria she would have been on more solid ground, although perhaps wrong on the merits. But by interjecting issues of policy and directing the Justice Department not to defend any aspect of the order, she overstepped her bounds.
An attorney general, like any citizen, has the right to disagree with a presidential order, but unless it is clear that the order is unlawful, she has no authority to order the Justice Department to refuse to enforce it.
In my view she was wrong. She should neither be lionized nor accused of betrayal. Nor should President Trump’s critics, and I include myself among them, accuse him of doing anything even remotely close to President Nixon’s infamous “Saturday Night Massacre.”
Nixon fired the very officials who were seeking to prosecute him. That constituted a personal and unethical conflict of interest. President Trump fired Yates over policy differences. It may have been unwise for him to do so, but it was clearly within his authority.unethical conflict of interest. President Trump fired Yates over policy differences. It may have been unwise for him to do so, but it was clearly within his authority.unethical conflict of interest. President Trump fired Yates over policy differences. It may have been unwise for him to do so, but it was clearly within his authority..unethical conflict of interest. President Trump fired Yates over policy differences. It may have been unwise for him to do so, but it was clearly within his authority.unethical conflict of interest. President Trump fired Yates over policy differences. It may have been unwise for him to do so, but it was clearly within his authority.
U.S. District Court Judge Ann Donnelly issued her injunction over the government’s objection during an emergency hearing Saturday night as several hundred people opposed to Trump’s order chanted and milled about outside the Brooklyn, N.Y., federal courthouse.
During the brief court session, the judge said it was difficult to see the harm in allowing the newly arrived immigrants to stay since they were being routinely admitted just a couple of days ago.
“If they had come in two days ago, we wouldn’t be here, am I right? … These are all people who have been through a vetting process,” the judge said. “Explain to me how these petitioners won’t suffer irreparable damage if I don’t grant this stay?” Donnelly asked.
Donnelly’s order does not appear to interfere with most of Trump’s directive, since the judge only moved to protect a limited number of individuals who were already on or were about to board flights to the U.S. when Trump signed his measure. Now, such travelers will likely be blocked from boarding flights in the first place.
Additional orders issued by federal judges in New York, Boston, Alexandria, Virginia, and Seattle helped bolster the resolve of anti-Trump protesters who flooded airports over the weekend and turned up by the thousands at the White House Sunday.
One Muslim-rights group, the Council on American Islamic Relations, said it planned a new federal lawsuit Monday charging that Trump’s order is unconstitutional because it amounts to thinly veiled discrimination against Muslims.Monday charging that Trump’s order is unconstitutional because it amounts to thinly veiled discrimination against Muslims.
That suit could face an uphill battle because courts have rarely accorded constitutional rights to foreigners outside the U.S. However, foreign citizens who are permanent U.S. residents generally have a stronger claim to recourse in the courts. In addition, legal experts say U.S. citizen relatives of foreigners could have legal standing to pursue a case charging religious discrimination.have rarely accorded constitutional rights to foreigners outside the U.S. However, foreign citizens who are permanent U.S. citizen relatives of foreigners could have legal standing to pursue a case charging religious discrimination.have rarely accorded constitutional rights to foreigners outside the U.S. However, foreign citizens who are permanent U.S. residents generally have a stronger claim to recourse in the courts. In addition, legal experts say U.S. citizen relatives of foreigners could have legal standing to pursue a case charging religious discrimination.
Still, presidents have broad discretion over the nation’s immigration and refugee policy. A 1952 immigration law gives the chief executive the power to bar “any class” of immigrants from the country if allowing them is deemed “detrimental to the interests of the United States.”allowing them is deemed “detrimental to the interests of the United States.”allowing them is deemed “detrimental to the interests of the United States.”allowing them is deemed “detrimental to the interests of the United States.”
Protesters rallied against the order in dozens of cities and at airports, where lawyers and members of Congress worked to free detained travelers who had boarded flights with valid U.S. visas.visas.visas.visas.
President Donald Trump on Monday accused Sen. Chuck Schumer of crying “fake tears” at a news conference criticizing his controversial executive order on refugees and travelers from seven Muslim-majority nations.
“I noticed Chuck Schumer yesterday with fake tears,” Trump told reporters at a listening session with business leaders in the White House on Monday. “I’m going to ask him who is his acting coach.”
Executive Order on Reducing Regulation and Controlling Regulatory CostsExecutive Order on Reducing Regulation and Controlling Regulatory CostsExecutive Order on Reducing Regulation and Controlling Regulatory Costs
Requires agencies to repeal two regulations for each new one they propose.
Imposes a regulatory budget come Fiscal 2018, which would limit the amount of new regulatory costs agencies can impose on individuals and businesses each year.
What constitutes a regulation? The executive order imposes a strict numerical limit on regulations: one in, two out. Sounds simple, but in fact there’s no accepted definition on what constitutes a regulation, so there’s no real way to count them.
The executive order takes a stab at this, defining a regulation as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.”
What agencies are covered by this new policy? According to its text, Trump’s order applies to any “executive department or agency,” so it would not touch the legislative branch — which runs the Government Accountability Office, Library of Congress, and more — or the judiciary. The order also explicitly exempts regulations dealing with “military, national security, or foreign affairs” and regulations affecting agencies’ “organization, management, or personnel.”
What work is the 2-for-1 regulation requirement doing? It is unclear why the order employs both the 2-for-1 requirement and the regulatory budgeting requirement. If the point is to reduce costs, why should the number of rules matter?
Cramming two different policies (regulatory budgeting and 2-for-1) into the executive order does not make it twice as powerful. As writer Robert VerBruggen has observed, “An agency making $5 billion worth of new regulation doesn’t have to repeal $10 billion worth — it just has to offset the $5 billion while cutting twice the number of regulations. It could enact five $1 billion rules and repeal 10 $500 million rules.”rules.”rules.”rules.”
How will “costs” be defined under the order? As with counting regulations, it’s not at all clear how you tally their costs. The order requires agencies to offset new “incremental costs” from regulations by repealing old regulations, as well as allowing OMB to set a regulatory budget that sets the total amount of “incremental costs” each agency can impose. Again, this creates more questions than answers.
For one, will benefits be considered in addition to costs, or are “incremental costs” supposed to mean “net costs” (i.e., costs remaining after benefits have been accounted for)? Will costs encompass indirect costs from regulations, or just the direct costs?
Does the president even have the legal power to mandate the number of regulations? The president’s authority to issue executive orders to mandate the process for issuing regulations is indisputable. But does he have the power to determine how many regulations may be issued consequent to law?
The order cites the president’s authority to submit a yearly budget, as well as his power to delegate presidential power to agency heads. Neither of these provisions explicitly grant the president power to mandate the number of regulations, which calls into question the legal grounds for the order’s 2-for-1 requirement.
3. Presidential Memorandum Organization of the National Security Council and the Homeland Security Council
President Donald Trump on Saturday signed three new executive actions to reorganize the National Security CouncilTrump on Saturday signed three new executive actions to reorganize the National Security Council
The president named Bannon to the council in a reorganization of the NSC. This gives Bannon a seat on the “principals committee” He also said his chief-of-staff Reince Priebus would have a seat in the meetings.
Chairman of the joint chiefs of staff and the director of national intelligence, two of the most senior defense chiefs, will attend meetings only when discussions are related to their “responsibilities and expertise”
The reorganization of the National Security Council principals committee, and the participation of the Joint Chiefs of Staff chairman, is a duplicate of what George W. Bush did in February 2001 when he issued his NSC directive.
In February 2001, his first full month in officer, Mr. Bush issued his own reorganization. Regarding the principals committee, the wording is identical:
“The Director of Central Intelligence and Chairman of the Joint Chiefs of Staff shall attend where issues pertaining to their responsibilities and expertise are to be discussed.” The director of National Intelligence did not exist at the time.
The Trump principals committee will include as regular members the secretaries of State, Treasury, Defense, and Homeland security as well as the Attorney General, the chief of staff, the chief strategies, the national security adviser and the homeland security adviser.
- Impose a five-year ban on lobbying for administration appointees and a lifetime ban on lobbying the government for other countries
- Order the Department of Defense to come up with a plan within 30 days to defeat ISIS.