executive orders

About the “So-Called” Judge’s TRO

/ Jack Marshall / 30 Comments

robart

Ethics Alarms had a revealing comment on the post about the grandstanding and unethical ex-acting-Attorney General’s  breach of her duty to represent her client regarding the President’s Middle East immigration Executive Order. Following Judge Robart’s temporary restraining order (or TRO), the reader said, in essence, ‘See? She was right! The order was illegal, just like she said it was!’ The comment was idiotic on its face on many levels, yet it was also a fair summation of how partisan citizens have viewed the controversy. The various TROs validate the criticism of the Executive Order in their minds. They don’t, however. Judge Robart’s order particularly doesn’t. In fact, it is infuriatingly vague.

Now, a TRO doesn’t necessarily have to explain in detail what is wrong with a law, regulation or order. The purpose of this judicial act is to stall a measure that has the potential of causing a lot of disruption, unhappiness or expense from going into effect until there can be a decisive determination that it is legal, constitutional and within the power of the government entity that issued it. A judge issuing a TRO must conclude that the objection to the act is substantive, that the party applying for the TRO has a substantial chance of prevailing on the merits, and that the party has standing to object. The judge does not have to conclude that the party asking for the order is right, just that the party may be right.

However, reading Judge Judge Robart’s order, one can glean no clue as to why the TRO was justifiable, and why it is so sweeping. Although the judge writes in his conclusion that…

The work of the court is not to create policy or judge the Wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. …

[T]he court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government.

…the order never states what is illegal or unconstitutional in his view.  This omission has led many analysts to conclude that there isn’t anything. He just doesn’t like the order. Much has been made of the fact that Robart was a Bush appointee, so the order isn’t “partisan.” Of course, the same people making this argument, in other settings, would maintain that a Bush appointment is just a bad judge. Many, many, many Republicans  and conservatives detest the President, and especially, one should remember, the Bush family. It is far from unlikely that bias against the President caused Judge Robart to employ poor judgment. Democrats cite the fact that Rorart is a conservative as part of a wonderfully convenient construct: if a conservative judge opposes them, the fact that he’s a conservative means he’s wrong, and if a conservative judge agrees with them, the fact that he’s a conservative means he’s right.
Some of the exchanges in the hearing that led to his order directly contradict his written statement that he is not questioning the wisdom of the order rather than challenging its legality.

Continue reading →

Unethical Quote Of The Week: Boston Mayor Martin J. Walsh

/ Jack Marshall / 73 Comments

sanctuary-cities

“To anyone who feels threatened today, or vulnerable, you are safe in Boston. We will do everything lawful in our powerful to protect you. If necessary, we will use City Hall itself to shelter and protect anyone who’s targeted unjustly.”

—–Boston’s mayor, Martin J. Walsh, announcing defiance to the President Trump’s Executive Order cutting off federal funding to municipalities that did not cooperate with federal immigration officials.

Is Mayor Walsh under the impression that America’s laws protecting its borders and extending its sovereignty over the crucial area of immigration control are the equivalent of the Fugitive Slave Act? It would seem so.

The grandstanding statement by Walsh is the most extreme yet from the 100% wrong and unethical mayors of so-called sanctuary cities, which include major metropolises like Boston, Los Angeles, New York, Los Angeles, Chicago, and smaller cities, many of them college towns, like New Haven; Syracuse; and Austin. There are over 300 in all.

The legal issue is interesting and not at all settled. A 2012 Supreme Court decision held that Congress is not permitted to set conditions on spending to coerce states or localities to participate in federal programs against their will, but other decisions are no so clear. Moreover, when a city actively interferes with the enforcement of the law—not merely not participating in the program, but actively interfering with it the in way the Walsh describes—the federal government should have some effective way of responding. I see another SCOTUS case coming, don’t you? What if Boston decided that it would provide sanctuary for drug dealers, kidnappers, spies and terrorists? Could it do that, too?

Some of the other mayors have been only slightly more moderate. San Francisco’s mayor, Ed Lee, issued a joint statement with the mayor of Oakland, Libby Schaaf, and Mayor Sam Liccardo of San Jose:

“We will not give in to threats, or political grandstanding. Together, the Bay Area will stay true to our values of inclusiveness, compassion and equality, and united against any and all efforts to divide our residents, our cities, and our country.”

Look! Political grandstanding about political grandstanding! Imagine: the President of the United States wants to enforce immigration laws! How dare he? In Chicago, Mayor Rahm Emanuel proclaimed, while ducking bullets presumably,

 “I want to be clear: We’re going to stay a sanctuary city. There is no stranger among us. Whether you’re from Poland or Pakistan, whether you’re from Ireland or India or Israel and whether you’re from Mexico or Moldova, where my grandfather came from, you are welcome in Chicago as you pursue the American dream.”

Having illegal aliens who have committed crimes flee to Chicago might work out, since the murder rate there should thin their ranks considerably. Continue reading →

Virginia’s Governor Restores The Vote To Felons

/ Jack Marshall / 29 Comments
"First thing on my mind, now that I'm finally out of Shawshank, is to register to vote. Then I figure I'll look up Andy..."

“First thing on my mind, now that I’m finally out of Shawshank, is to register to vote. Then I figure I’ll look up Andy…”

Virginia’s Gov. Terry McAuliffe signed an executive order yesterday  that restored the voting rights of 206,000 ex-felons. The order applies to all violent and nonviolent felons who served their sentence. Virginia is one of a minority of states, only ten, that do not automatically restore rights upon completion of a felony sentence and one of only four  that require an application by each individual felon and action by the governor. Because this is an executive order, McAuliffe will have to reissue it every month.

McAuliffe, who is the political equivilent of Prof. Harold Hill in “The Music Man,” issued the predictable triumphal blather, saying from the Virginia Capitol steps after being introduced by a gospel choir,

“We benefit from a more just and accountable government when we put trust in all of our citizens to choose their leaders.It has taken Virginia many centuries, unfortunately, to learn this lesson. But today, we celebrate its truth.”

We get a more just and accountable government when we put trust in those who have proven themselves untrustworthy, eh?

That’s one of McAuliffe’s talents: he can make a measure that isn’t necessarily unethical at all seem like it.

Is it unethical to tell felons that they are banned from voting and running for office for life? It’s a policy choice, that’s all. A state can make lifetime disenfranchisement part of the official price for serious lawbreaking on the theory that felons have shown themselves to be  insufficiently respectful of the laws and society in general, and lowered themselves into the ranks of permanent second class citizens by their own choices and conduct. I won’t say that’s not fair: it depends what one thinks fair is. It’s tough. It signals a high regard for the rights to participate in self-government. Continue reading →

Comment of the Day: “Observations On Obama’s Executive Orders On Guns And The Golden Dancer Presidency”

/ Jack Marshall / 9 Comments
Are smart guns...smart?

Are smart guns…smart?

 J. E. Houghton illuminates one of President Obama’s wish list items for gun safety—fascinating. Here is his Comment of the Day on the post, “Observations On Obama’s Executive Orders On Guns And The Golden Dancer Presidency” :

I would like to offer an observation concerning one of President Obama’s executive order policies: To direct federal agencies to promote “smart gun” technology through the procurement power of the Federal government. The President compares guns to smart phones and asks why we can’t use the same modern technology to limit access and use of guns like we do with smart phones. (Vice President Biden’s post-Sandy Hook commission came up with a similar recommendation.)

This may sound like a good idea to some, mostly people who have no knowledge of guns and do not depend on guns for their own personal safety, national defense or homeland security.

Continue reading →

Observations On Obama’s Executive Orders On Guns And The Golden Dancer Presidency

/ Jack Marshall / 51 Comments

Rocking Horse

Before I begin, here are the orders, which almost none of the news media are explaining or in most cases, even mentioning. The list is from Forbes:

Gun Violence Reduction Executive Actions:

1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.

2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.

3. Improve incentives for states to share information with the background check system.

4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.

5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.

6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.

7. Launch a national safe and responsible gun ownership campaign.

8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).

9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.

10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.

11. Nominate an ATF director.

12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.

13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.

14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.

15. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to developinnovative technologies.

16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.

17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.

18. Provide incentives for schools to hire school resource officers.

19. Develop model emergency response plans for schools, houses of worship and institutions of higher education.

20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.

21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.

22. Commit to finalizing mental health parity regulations.

23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.

Observations:

1. I want to get this out of the way first, because it annoys me even more than other things connected with the announcement and its coverage. Jeb Bush was ready for the Obama orders with a signed op-ed titled, “Barack Obama’s executive orders trample on the Second Amendment.” Trample? They barely nick it. Maybe the orders infringe on the Amendment’s personal space. Bush wrote (or, more likely, had someone write for him) the essay before Obama’s measures were known. It’s obvious: Bush never mentions any of them. This is exactly the sort of idiocy from gun rights supporters that Obama, Democrats and anti-gun zealots are counting on, so they can say—with justification!—“See? Republicans don’t want to do anything to make us safer! They oppose measures before they even know what they are! How can anyone expect the President to work with these people?”

Jeb is an embarrassment, especially to himself. He should do everyone a favor and get out of the race.

2. Nicely timed to the orders is an excellent article in Reason called  “You Know Less Than You Think About Guns: The misleading uses, flagrant abuses, and shoddy statistics of social science about gun violence.” It would be nice, even responsible, if those clapping their hands like trained seals to Obama’s cynical grandstanding here actually read it.  A brief highlight: Continue reading →

RETRACTED: Unethical (And Head Exploding! ) Quote Of The Month: Atty. General Loretta Lynch

/ Jack Marshall / 27 Comments

head large

RETRACTED WITH APOLOGIES

I’m pulling this post. It was based on bad information; I didn’t check it correctly; I cited the original source without making sure the secondary source had quoted it accurately, and my commentary ended up completely misleading and unfair in every way. Stupid. Incompetent. Careless. Inexcusable.

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I’m the Ethics Dunce here.

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The Loretta Lynch statement that I was under the impression that she made was not what she said. Thanks, so much, to commenter Zanshin for flagging my error.

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I’m pulling this down rather than leaving it up with a correction because as of now the post constitutes web pollution of the sort I rail about regularly. It is the equivalent of a hoax. Those who come to read it should be told immediately that the miscreant in this case was me, and the source that misled me, but mostly me. I’m not even going to mention that source either, though it has been reliable in the past. This is my fault, and nobody else’s.

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I offer my apologies to Ethics Alarms readers, and anyone they may have misled as a result of my carelessness. I also apologize to Attorney General Lynch, who did not say, for the most part, what I criticized her for saying.

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Frankly, I’m relieved about that.

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This is the phenomenon of being so focused on a trend–in this case, anti-gun forces enthusiastically using gun-related tragedies to advance their agenda—that I was primed to accept a pretty outrageous example that was so outrageous it should have sparked skepticism. I allowed confirmation bias to dull my judgment, and let that be a lesson to me, and everyone else.

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Also: never write a post right after your head explodes.

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I’m sorry, angry at myself, and embarrassed.

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You deserve better, and I will intensify my efforts to ensure that you get better going forward. You have to trust me, and this time I let Ethics Alarms down.

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 UPDATE (12/5): As of 2 PM today,both Instapundit and the National Review are sticking with the   misrepresentation of Lynch’s remarks, either because, like me, they relied on an inaccurate source, or because they want to.

 

Unethical Quote Of The Month: The White House, a.k.a. President Obama

/ Jack Marshall / 31 Comments

“Today, two judges of the Fifth Circuit chose to misrepresent the facts and the law. The president’s actions were designed to bring greater accountability to our broken immigration system, grow the economy and keep our communities safe. They are squarely within the bounds of his authority, and they are the right thing to do for the country.”

—-White House spokeswoman, Brandi Hoffine, relaying the White House’s response to the Fifth Circuit’s refusal to lift the injunction blocking President Obama’s dubious plan to defer deportations for millions of undocumented immigrants, using executive order rather than legislation.

The bottomless pit of miserable White House tactics...

The bottomless pit of miserable White House tactics…

There appear to be no depths of unethical rhetoric to which the Obama White House is not willing to stoop for political gain.

The wording of the White House statement is unethical: despicable, irresponsible, and offensive to the judicial system, as well as beneath the dignity of the Presidency.

Well, of most Presidencies, anyway.

The President is free, of course, to disagree with a court decision, and may say so. To imply, however, that the two judges who formed the majority in this ruling did not make their decision fairly and legitimately, but rather “chose” to misrepresent facts and law—essentially accusing them of dishonesty, is unethical to the bone. There is even an ABA Rule of Professional Conduct prohibiting such a comment as undermining “public confidence in the administration of justice.” The President is not only a lawyer, but a former law professor. He should be ashamed of himself, and we should be ashamed of him. Lawyers have been suspended for making similar statements, and he is President of the United States, whose statements are infinitely more harmful. Continue reading →

Thirteen Ethics Observations On The GOP’s Letter To Iran

/ Jack Marshall / 61 Comments

Letter to IranFrom the Washington Post:

“An already heated battle between the White House and Republicans over negotiations to curtail Iran’s nuclear program grew more tense Monday when 47 Republican senators sent a letter to Iran designed to kill any potential deal.

The White House responded by accusing the Republicans of conspiring with Iranian hard-liners, who oppose the delicate negotiations, and suggesting that their goal was to push the United States into a military conflict.”

Observations:

1. The letter cannot be defended as anything other than an effort to sabotage sensitive international negotiations. As such, it is direct interference with the President’s ability to do his job. The fact that Republicans, like Israel, have abundant evidence that President Obama is likely to do that job, in this case, badly and even dangerously is no justification for this unethical, unconstitutional, arrogant and offensive act. The American people elected Obama president, and with that came the authority to conduct foreign affairs and oversee negotiations with foreign governments. The letter is wrong in every way.

2. It does not matter, and should not matter, to any American whether or not they believe that a breakdown in negotiations with Iran would be preferable and safer than the kind of deal this President is likely to produce. It does not matter. The letter is per se a breach of the separation of powers, and as precedent, endangers the nation’s entire governance structure.

3. Anyone who defends this atrocious, reckless and unprofessional conduct is fully embracing “the ends justifies the means” as a principle of democratic government.

4. If he was not aware of it and did not approve it, Republican Senate leader Mitch McConnell is obligated to condemn this action, and punish all signatories,  stripping them of committee assignments related to foreign affairs.

5. He won’t. Continue reading →