The UK Supreme Court’s Brexit Decision: Probably Right and Yet So Unnecessary

by Iain Murray

The UK’s Supreme Court has ruled that Parliament must agree to make Britain’s exit from the European Union, which the British people voted for last June, a reality. Her Majesty’s Government (HMG) had argued that following the vote, all that was needed was for Ministers to exercise the Royal Prerogative of treaty-making powers to withdraw from the EU treaties. The Supreme Court disagreed, saying that Parliament had constrained that power, perhaps unintentionally, in 1972 when the European Communities Act was passed. The judgment can be read two ways – as an insult to democracy, or as a rightful reiteration of Parliamentary sovereignty. In reality, it is both.

To begin with, we must recognize that British statute law recognizes no legislative power other than Parliament, or, to be more precise, Queen-in-Parliament. There is no “We the People” preamble to Britain’s unwritten constitution. Despite the fact that the people quite happily chopped off one King’s head and drove another into exile in the 17th Century, it was Parliament that was the vehicle of change, and it is Parliament that is the rock on which democracy is founded there.

This means that the question that the Court decided today was not one of popular will, precisely because it couldn’t be, as a matter of law. Had the referendum act of 2015 said that the Government would take certain actions following the referendum, as previous referenda acts had done, that would have been dispositive of the case, and the Supreme Court would probably not have needed to get involved. It didn’t, however.

Instead, the case revolved around the principle of “dualism.” This principle, which the Court admitted was fundamental to the British constitution, says that the executive power (technically HM the Queen, in reality the Prime Minister and her government) has power over international law and treaties, while Parliament has power over domestic law. It is similar to the separation of powers explicit in the US Constitution. This is the principle HMG relied on when it suggested it had the power to withdraw from the EU as an exercise of the treaty-making power.

By contrast, the original plaintiffs in the case argued that Parliament had granted them rights through the 1972 Act that had become part of domestic law, and therefore Parliament, not Ministers, had to act to remove those rights. Lord Hughes’s dissent clearly explains the problem.

The Court decided that the 1972 Act restrained the treaty-making power as it made the EU institutions a source of domestic law, giving jurisdiction to Parliament. What the Court comes very close to saying, yet does not, is that the 1972 Act was therefore a constitutional abomination, not just ceding legislative power to alien bodies but constraining the executive in a way that had not been done before.

Paragraph 68 of the judgment underlines how utterly alien the 1972 act was to fundamental constitutional principles, and yet it was passed in accordance with those principles. It says, “Rules which would…normally be incompatible with UK constitutional principles became part of our constitutional arrangements as a result of the 1972 Act and the 1972 Accession Treaty for as long as the 1972 Act remains in place.”

So be it. While Lord Reed’s dissent taking the side of HMG and the Royal Prerogative is persuasive, it seems clear to me that the only way the UK can get out of the mess it placed itself in back in 1972 is to kill the 1972 Act as “a matter of constitutional hygiene,” as Michael Greve said of Obamacare.

The saving grace is that the Court handed HMG two victories in this defeat. First, they found that the devolved assemblies of Scotland, Wales, and Northern Ireland have no say in the UK’s Parliament’s decision (they too are creations of Parliament), which removes a potential stumbling block. Secondly, the Court admitted that the repeal of the 1972 Act could be very brief, yet nevertheless have the constitutional import needed. Given that even Labour Party leader Jeremy Corbyn recognizes that to oppose such a bill would be an act of spectacular political suicide*, the Court has in reality given Mrs. May a very small hurdle to jump over.

So Parliamentary primacy over the Executive has been asserted in this one very specific case of the 1972 Act (and its successors). The decision can be viewed as conservative – Diceyan in its view of the constitution, even.

However, I said earlier that the decision was an insult to democracy. It is. Lord Carnwath’s dissent is the only place I can see that gets to the heart of the matter – that Ministers using the Royal Prerogative would not be an “untrammeled” exercise of executive power. It would be in response to the expressed will of a majority of the British people who expressed an opinion.

In other words, it would be the very opposite of an arbitrary use of power. And it is to stop arbitrary abuses of power for which we have the Parliamentary system in the first place. As the great economist Douglass North and Barry Weingast of the Hoover Institution noted in 1989, the Queen-in-Parliament system was put in place to prevent arbitrary actions of the executive, specifically those affecting property rights, against the common people. It succeeded splendidly at that.

To use the argument that Parliament must authorize executive power to stop a decision on the basis it could be arbitrary when that decision is quite clearly the settled decision of the people may be an exercise in formalism that weakens rather than protects the rule of law (see the response of the popular press to the lower court’s decision). Particularly when, as Lord Reed argues, there is a perfectly good constitutional principle that would exempt Ministers from Parliamentary approval. As I said here just before the Brexit vote, “a vote to Remain would represent an end to Britain’s 800 year experiment in restraining the executive through consent, natural right, and popular will.” Ministers exercising the Royal Prerogative following the vote would be consistent with that experiment, not contradictory to it, as the Court implicitly seems to believe.

To put it mildly, the British constitution is currently confused as to its purpose, and a lot of the blame for that can be laid at the foot of the 1972 Act and the pernicious influence of a set of alien institutions and principles. The sooner it is gone, dismembered, with a stake through its heart, the better.

*The House of Lords will face the same calculation.

The Racial Poison of ‘White Privilege’

by David French

Let me share with you two items. The first of more consequence than the second, but both are revealing. First, this video has been shared across the web – it shows a candidate for DNC Chair expounding on her view of the role of a white person as head of the party:

Here’s the key quote:

I’m a white woman. I don’t get it. I’m pleased and honored to be here today to have the conversation. I’m so excited that we’re here. I am listening, because that’s my job. My job is to listen to the issues. My job is to listen and be a voice. And my job is to shut other white people down when they want to interrupt. My job is to shut other white people down when they want to say, “Oh no, I’m not prejudiced. I’m a Democrat. I’m accepting. My job is to make sure that they get that they have privilege.”

This is white “allyship” at its finest. You “listen” to the experience of the oppressed, and then use your power and privilege allegedly in service of their needs and demands. It’s still a white person seeking power, but they’ve been baptized in the cleansing waters of critical race theory and now wield the sword in the great social justice crusade.

Then there’s the second item — demonstrating how racial zealotry leads to sheer cruelty and malice. This comes courtesy of my friend Ken White, perhaps better known on Twitter as Popehat:

Mary Katharine Ham wrote a heartbreaking piece about giving birth to a child mere weeks after her husband’s tragic and unexpected death. And that was one woman’s response — a completely unsupported and unsupportable assumption that no one would have cared about Mary Katharine’s story “if it were a minority woman writing essay.” In other words, people only cared because of her “white privilege.”

I wouldn’t highlight one person’s response on Twitter if it wasn’t so representative of much of the discourse around white privilege. Every topic is racialialized, and every time it’s racialized, injustice is presumed. Honestly, you have to experience academic conversations on race to understand how truly unhinged they can be. 

Discussion of “white privilege” has gone from interesting and thoughtful to stupid and malicious at the speed of social justice. There is a fascinating debate to be had about the nature of “privilege” in America — including who has real privilege and how it shapes our nation — but we’re definitely not having it. Instead, we get presumptions, paranoia, shout-downs, and power plays. There’s no intent to persuade, only bully and shame. It may be the path to power for some, but it is most certainly not the path to peace, true justice, or real racial reconciliation. 

Inaugurations, Music . . .

by Jay Nordlinger

I’d like to give you a couple of links to pieces about music, very different from each other. The first is an essay called “Faking It and Making It.” It’s about lip-synching and other such shenanigans. I wrote it exactly four years ago, after Beyoncé faked her way through the national anthem at President Obama’s (second) inauguration. We are running it today as a sample, so to speak: It appears in the “Music” section of this new collection.

At The New Criterion, I have a review of a concert at Carnegie Hall on Friday night. Daniel Barenboim conducted the Staatskapelle Berlin, and also served as piano soloist. And speaker. He gave a post-concert speech that will be of interest to those who are interested in the intersection of the arts and politics. For many decades, Barenboim has been a political actor, as well as a musical one. I, of course, prefer him as a musician.

Incidental intelligence (as my colleague Martin Bernheimer would say): Daniel Barenboim made his Carnegie Hall debut, age 14, on January 20, 1957. That was the day of Eisenhower’s (second) inauguration. This concert that I have written about took place exactly 60 years later, on the night of Donald Trump’s inauguration.

First inauguration?

Obama’s Recovery and the Impact of Government Intervention

by Veronique de Rugy

Listening to the media and most of social media, you may believe that Barack Obama’s presidency was a spectacular success. Never mind that he was replaced by President Donald Trump (which should signal to many that things weren’t as great as they pretend), almost 60 percent of Americans think that the country is on the wrong track, and that the Obama administration betrayed many of the values the Left claims to hold dear. They also continue to ignore the economic reality of eight years of an Obama recovery. The Wall Street Journal has a summary:

The recovery since the 2007-09 recession has been unusually slow but is also the fourth longest on record, and recent data point to rising incomes for U.S. households. Median household incomes rose 5.2% in 2015 after adjusting for inflation, leaving them 2.4% below the record reached in 1999, according to the Census Bureau. The unemployment rate has fallen to 4.7%, a nine-year low.

Still, there are broader concerns over declining opportunity for large swaths of the country, particularly Americans without college degrees and in more rural areas. The U.S. homeownership rate is near a 50-year low, and the average debt load for college students is rising.

There is more data about the slow recovery, here. Growth has been timid, in spite of low unemployment rates, labor markets are pretty unhealthy with lots of under-employment and a low participation rate, and our debt has grown considerably (and is still growing). And don’t buy the argument that this slow recovery is a product of the size of the recession.

Instead of counterproductive stimulus spending, new regulations of the labor and financial markets, and a large Federal Reserve expansion, Harvard University’s Robert Barro explained a few months ago that the Obama administration would have had different economic outcomes if only it had pursue policies to enhance economic freedom:

Variables that encourage economic growth include strong rule of law and property rights, free trade, rolling back inefficient regulations and other constraints on market activity, public infrastructure such as highways and airports, strong institutions for education and health, fiscal discipline (including a moderate ratio of public debt to GDP), efficient taxation, and sound monetary policy as reflected in low and stable inflation.

Also, in a recent post economist Casey Mulligan published an interesting chart showing the impact of government interventions on the labor market:

Mulligan writes:

[This] is an index of hours worked per person, which reflects both the amount of employment and the number of hours that employees work up through Dec 2016. It shot up when the Emergency Unemployment Assistance program was finally canceled. Its growth was especially slow when the new health care law began to penalize employers. Over the most recent twelve months, the trend is (infinitesimally) negative.

Hopefully, this administration will free the market from the grip of government regulations and taxes to reverse this trend. We will see.

Misrepresenting Mexico City

by Ramesh Ponnuru

Laurie McGinley and Amy Goldstein report in the Washington Post:

President Trump, in reinstating a rule first instituted by President Reagan, gave foreign nonprofits a stark choice: Stop providing abortions, or any information about abortions, or lose valuable dollars from the United States, the biggest global funder of family-planning services.

Advocacy groups that oppose the rule are also claiming that the rule forbids grant recipients from sharing any information about abortion. 

This is incorrect. A USAID handbook from 2007, when the rule was in place, characterized its effect as follows:

No funds made available under this award will be used to finance, support, or be attributed to the following activities: (i) procurement or distribution of equipment intended to be used for the purpose of inducing abortions as a method of family planning; (ii) special fees or incentives to any person to coerce or motivate them to have abortions; (iii) payments to persons to perform abortions or to solicit persons to undergo abortions; (iv) information, education, training, or communication programs that seek to promote abortion as a method of family planning; and (v) lobbying for or against abortion. The term “motivate”, as it relates to family planning assistance, shall not be construed to prohibit the provision, consistent with local law, of information or counseling about all pregnancy options (emphasis added).

Whether recipients of federal dollars should be able to provide abortion referrals in foreign countries where abortions are legal is a debatable question. But the Mexico City policy does not forbid them from doing so.

WATCH: Planned Parenthood Offices Nationwide Tell Callers They ‘Don’t Offer Prenatal Care’

by Ericka Andersen

Planned Parenthood CEO Cecile Richards likes to boast that her organization offers necessary prenatal care for women. Supporters of Planned Parenthood and Democrat politicians do the same — but surprise! — it’s just a myth. A video from Live Action shows Planned Parenthood clinics across the country telling callers they “don’t offer prenatal care.” One operator even says, “We specialize in abortions.” Callers are told over and over again that Planned Parenthood has no prenatal care or doctors, but they are reassured that if you need an abortion, you’ve come to the right place. Unbelievable: 

Fear of a White Lab Equipment Cover

by Jim Geraghty

Thankfully, there is not a Ku Klux Klan member lurking the campus of Bowling Green State University in full Klan regalia. Someone saw a white cover on a piece of laboratory equipment that sort-of, kind-of looks like a person wearing a Klan hood. The university looked into it and determined what was really in the window. 

We all make mistakes, and we all have false alarms. But how likely is it that in 2017, a Klan member could walk into or work in a university building, in full Klan hood and sheets, and not be noticed? How likely is it that no one would react, or object, or cause a scene?

We live in a flawed country and a flawed world, and racism exists. But a little common sense is in order. The average white person sitting next to you on the bus is extremely unlikely to be a Klan member, or a white supremacist, or a Klan sympathizer. 

‘Donald Trump’s Culture War’

by Rich Lowry

I have a column up today on how Trump has changed and re-invigorated the culture war:

There is no way Trump could be a credible combatant in the culture war as it existed for the past 40 years. But he has reoriented the main lines of battle away from issues related to religion and sexual morality onto the grounds of populism and nationalism. Trump’s culture war is fundamentally the people versus the elite, national sovereignty versus cosmopolitanism, and patriotism versus multiculturalism.

It’s the difference, in a nutshell, between fighting over gay rights or immigration, over the breakdown in marriage or Black Lives Matter. The new war is just as emotionally charged as the old one. It, too, involves fundamental questions about who we are as a people, which are always more fraught than the debate over the appropriate tax rate or whether or not we should have a defense sequester.

It Turns Out It’s Not Illegal for an Incoming National Security Advisor to Talk to a Foreign Ambassador

by Rich Lowry

This Wall Street Journal story on a FBI investigation of Gen. Flynn’s contacts with Russia’s ambassador to the U.S. during the transition got a lot of buzz yesterday.

I was wondering how conversations between Flynn and the ambassador could possibly constitute a crime — were they plotting a bank heist together? As it happens, there was nothing to it. Per a NBC report last night:

Confirming a report in the Washington Post tonight, a U.S. intelligence official tells NBC News there never was an “investigation” of calls to the Russian Ambassador by National Security Adviser Mike Flynn. The calls were briefly examined only because they were picked up incidentally as part of routine eavesdropping on the ambassador, said the official, who added that nothing improper was found.  Separately, a former U.S. counter intelligence official told NBC News it is not uncommon for diplomats or other U.S. officials to draw the scrutiny of FBI counterintelligence agents if they are recorded talking to foreign counterparts, but rarely does anything come of it, because US officials have wide latitude in how they communicate as part of their jobs.

Gorsuch: The Kennedy Connection

by Ramesh Ponnuru

David Savage writes about one of President Trump’s potential nominees to the Supreme Court, Judge Neil Gorsuch.

In Gorsuch, supporters see a jurist who has strong academic credentials, a gift for clear writing and a devotion to deciding cases based on the original meaning of the Constitution and the text of statutes, as did the late Justice Antonin Scalia.

Just as importantly, Gorsuch is seen as someone who might be more easily confirmed in the Senate. Unlike other appointees of President George W. Bush, Gorsuch won an easy Senate confirmation on a voice vote in 2006.

All of that is correct, and I’m hearing the same things as other journalists about his being at the top of Trump’s list. Savage also points out that Gorsuch clerked for Justice Anthony Kennedy. Perhaps he would have a better shot at convincing Kennedy to join conservative majorities than other potential nominees. In a lot of cases, and an even higher proportion of the most important ones, that would make the difference between winning and losing 5-4.

Inside the Trump White House

by Jonah Goldberg

The Washington Post has an entertaining article on the state of things in the Trump White House. A few thoughts related to or inspired by it:

1. This passage is getting the most attention:

Trump has been resentful, even furious, at what he views as the media’s failure to reflect the magnitude of his achievements, and he feels demoralized that the public’s perception of his presidency so far does not necessarily align with his own sense of accomplishment.

This does not bode well, given that this is supposed to be the president’s honeymoon. Trump’s unalloyed craving for respect is precisely why it is often most elusive. If he stuck to most of the stuff he did yesterday — meeting with business leaders, signing executive orders — he’d get more respect and support. But, as we saw at the CIA over the weekend (not to mention reports he told people on the Hill that he would have won the popular vote if not for millions of illegal voters), Trump has to try to lead the witnesses, to plead his own case that he deserves more respect than he thinks he’s getting and as result, it slips through his fingers.

2. Then there’s this:

The broader power struggles within the Trump operation have touched everything from the new administration’s communications shop to the expansive role of the president’s son-in-law to the formation of Trump’s political organization. At the center, as always, is Trump himself, whose ascent to the White House seems to have only heightened his acute sensitivity to criticism.

From everything I’ve heard this strikes me as right. But the more interesting takeaway is what the whole article implies: Everybody in the Trump administration is talking to the press. This has been going on for a long time. Because Trump — sometimes to his benefit, sometimes not — breaks the old playbook, a lot of people who have independent reputations, identities, and relationships from Trump are eager to tell folks “this wasn’t my idea.”

Also, because Trump often listens to whichever advisor suits his mood or talked to him last, the fight for proximity to Trump will likely result in lots of aides trying to kill each other through leaks. Hardcore Trump partisans will respond to every negative story with “fake news!” etc. But they should probably know that most of these stories from top news outlets will have at least a couple of sources inside the White House or administration talking on background. That doesn’t mean the stories will be entirely accurate. But it will mean that there is someone behind the scenes giving it legs.

3. Finally, any hope — or fears — that there will be a “new” presidential or pivoted Donald Trump should be laid to rest. For good or ill, or rather for good and ill, the man we’ve seen all this time is the man we got.

Restoring Campus Free Speech

by Stanley Kurtz

For decades, freedom of speech on college campuses has been under siege from restrictive speech codes. In just the last few years, the slow erosion of support for campus free speech has reached a crisis-point, with the rise of trigger warnings, safe spaces, and a raft of speaker disinvitations. Student support for freedom of speech has never been weaker than it is right now.

How can we restore and protect freedom of speech on our college campuses when many students have ceased to value or understand it, many faculty members have turned against it, and many administrators worry more about keeping their institutions off the front pages than about standing up for liberty?

I believe the answer to this question lies in comprehensive state-level legislation designed to secure freedom of speech on the campuses of public state university systems. Not only are these systems tremendously important in and of themselves, but a national debate over such legislation is bound to have influence on the policies of private colleges and universities as well.

In the fall of 2015, in response to the often illiberal demonstrations then sweeping across America’s colleges and universities, I offered “A Plan to Restore Free Speech on Campus.” Since then I’ve joined with Arizona’s Goldwater Institute to turn this plan into model state-level legislation. The resulting proposal also incorporates some innovative ideas for protecting campus speech that the Goldwater Institute has helped to put forward in Arizona. Considered as a whole, the model legislation that the Goldwater Institute and I have developed adds up to what is arguably the most comprehensive attempt ever made to protect campus freedom of speech.

For the most part, this plan draws on principles and provisions long offered by the most respected existing statements on campus free speech: Yale University’s Woodward Report of 1975, the University of Chicago’s Kalven Report of 1967, and the University of Chicago’s Stone Report of 2015.

On Tuesday, January 31 at noon, Jim Manley and Jonathan Butcher of the Goldwater Institute and I will present and explain this new, model legislation at a panel at the Heritage Foundation in Washington, DC. Casey Mattox of Alliance Defending Freedom will also be a panelist. At the same time, the Goldwater Institute will publish a white paper outlining and explaining our legislative proposal.

I’ll have much more to say about all this once the proposal goes public. You can sign up to attend the Heritage panel, or to watch the event online, here.

Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at [email protected]

No to Faux

by NRO Staff

This book has six chapters, and we have been publishing a piece from each of them. The final chapter is “Music.” Today, we publish a piece called “Faking It and Making It: A few notes on lip-synching, etc.” Mr. Nordlinger wrote it after Beyoncé lip-synched the national anthem at President Obama’s second inauguration. To see the piece, go here. To get the book, go here.

Trump’s Monday, Stirring the Hearts of Sanders, Trumka, and Unions

by Jim Geraghty

From the Tuesday Morning Jolt:

You Down On TPP? Yeah, You Know Me.

A reminder of what TPP would have actually done:

The Trans-Pacific Partnership is a sweeping trade pact negotiated by the Obama administration with 11 U.S. trading partners on both sides of the Pacific. It includes six countries that have already signed free-trade agreements with the United States — Canada, Mexico, Peru, Chile, Australia, and Singapore — and five that would be new FTA partners — New Zealand, Brunei Darussalam, Malaysia, Vietnam, and Japan.

TPP would eliminate 18,000 tariffs now imposed on U.S. exports to other TPP countries. Nearly 90 percent of those duties would go to zero upon enactment, and nearly all would be eliminated within 16 years. U.S. duties would also be phased out almost completely, with the steepest reduction on imported apparel and footwear, delivering benefits directly to low-income U.S. households.

If your business requires importing raw materials from any of those countries, TPP looked like a good deal. If your company was interested in having more competitive prices while selling in New Zealand, Brunei Darussalam, Malaysia, Vietnam, or Japan, it looked like a good deal. If you wanted to buy stuff made in those countries – check the labels on the clothes you’re wearing – for a lower price, TPP looks like a good deal.

It’s worth remembering that a U.S. withdrawal from TPP probably would have happened even if Hillary Clinton had won the election. Last August on the campaign trail, Clinton pledged, “I will stop any trade deal that kills jobs or holds down wages — including the Trans-Pacific Partnership. I oppose it now, I’ll oppose it after the election, and I’ll oppose it as president.” She could have flipped on that promise, but then the Bernie Sanders wing of the Democratic party would be revolting – er, would be in a state of revolt.

If low tariffs are such a good idea, why does the public fear them so? Which came first, the politicians fueling to protectionist attitudes, or the protectionist attitudes striking fear into the hearts of the politicians? Why was Obama so unable to persuade his own party on his own trade deal?

Speaking of Sanders

Sanders praised Trump’s decision, saying TPP is “dead and gone”.

“Now is the time to develop a new trade policy that helps working families, not just multinational corporations,” Sanders said in a statement. “If President Trump is serious about a new policy to help American workers then I would be delighted to work with him.”

“For the past 30 years, we have had a series of trade deals … which have cost us millions of decent-paying jobs and caused a ‘race to the bottom’ which has lowered wages for American workers,” he said.

A lot of political figures who don’t usually applaud a Republican president were cheering Monday. AFL-CIO President Richard Trumka declared, “today’s announcement that the US is withdrawing from TPP and seeking a reopening of NAFTA is an important first step toward a trade policy that works for working people.”

Teamsters General President James P. Hoffa:

“Today, President Trump made good on his campaign promise to withdraw the United States from the Trans-Pacific Partnership. With this decision, the president has taken the first step toward fixing 30 years of bad trade policies that have cost working Americans millions of good-paying jobs.

“The Teamsters Union has been on the frontline of the fight to stop destructive trade deals like the TPP, China PNTR, CAFTA and NAFTA for decades. Millions of working men and women saw their jobs leave the country as free trade policies undermined our manufacturing industry. We hope that President Trump’s meeting with Canadian Prime Minister Justin Trudeau and Mexican President Enrique Peña Nieto on Jan. 31 opens a real dialogue about fixing the flawed NAFTA.

Usually, a Republican would be really wary about any decision that brought cheers from Bernie Sanders, Trumka, and the big unions. 

WATCH: Press Embarrass Themselves in Last Presser Covering Obama

by NR Staff

In case you missed it, here’s a video showcasing an adoring White House press corps during former President Obama’s last press conference: 

Tuesday links

by debbywitt

The Best Kitchen Gadget of the 1600s Was This Small, Short-Legged Dog.

That Old-Time Hucksterism: The Oddest Doohickeys of Industrial-Age Entrepreneurs.

Laser Weapons Will Turn Earth’s Atmosphere into Lenses, Deflector Shields.

Scots, wha hae – Happy Burns Day! Here’s a bio, Burns Supper instructions, and lots of haggis.

Amazing images of Tokyo before it was a city.

London Necropolis Railway: The Train For The Dead.

ICYMI, Friday’s links are here, and include Buffy the Vampire Slayer’s birthday catastrophes, how a dead millionaire convinced dozens of women to have as many babies as possible, Picasso’s self-portraits from age 15 to age 90, and the story of Stonewall Jackson’s left arm’s separate grave.

Krauthammer’s Take: Spicer ‘Got a Second Chance to Make a First Impression’

by NR Staff

Charles Krauthammer thought that Sean Spicer did an excellent job in his second press conference, and offers hope that it may have made up for the awful first one:

It was a terrific day. It should have been Day One. We should erase the memories of Saturday. Look, Spicer got something unusual in life: He got a second chance to make a first impression. And he did very well. I think, to some extent, people will forget Saturday, unless he does it again.

The point about Saturday isn’t an obsession about numbers, it is about the fact that this is an issue utterly trivial. Everybody understood that it isn’t Spicer who decided to go storming into the briefing room — go into this rant where he got half the facts wrong — over numbers, and people kept scratching their heads, “Who cares?” The answer is: Trump cares. A week and a half ago, he tweeted out something about Schwarzenegger’s ratings on The Apprentice and how he really did so much better. It’s an obsession of his that is not seemly, it’s not attractive, it really hurt his cause Saturday. That was one day. That was sort of Day Minus-One, and now, he is off to a good start.

Is Trump Going to Cancel DACA or Not?

by Mark Krikorian

Politicians will always disappoint you. Rich tells the story of how, during the few hours he was considering a run for New York City mayor, he found himself already starting to waffle on principle to a potential voter in the elevator. If I were ever so unwise as to run for office, I too would no doubt disappoint those who unwisely voted for me.

So I was fully prepared for the Trump administration to do some things I wouldn’t be happy with. But I expected the problems to arise in the area of foreign-worker visas; the president, while running for the nomination, made frequent statements in support of importing foreign workers on visas. (See here and here and here.)

What I did not expect was for Trump to break an explicit promise regarding his headline issue on the administration’s first business day in office. But that may be what’s happened.

Point Number Five in Trump’s August Phoenix immigration speech was not ambiguous: “We will immediately terminate President Obama’s two illegal executive amnesties, in which he defied federal law and the constitution to give amnesty to approximately 5 million illegal immigrants.” Those two illegal amnesties are DACA (Deferred Action for Childhood Arrivals – for illegals who came as kids, often called “Dreamers”) and DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents). Only DACA actually went into effect; DAPA is held up in the courts. So the number of illegals whom Obama was actually able to lawlessly amnesty – providing them with work permits, Social Security numbers, access to the EITC welfare program and state driver’s licenses – was “only” about 750,000.

“Immediately terminating” the program wouldn’t necessarily have required an executive order, at least not on Day One. Nor would it require rounding up and deporting the DACAs; ICE has enough to do trying to restart deportation of the drunk drivers and wife-beaters Obama let go to worry about DACAs who aren’t involved in violent crimes.

But U.S. Citizenship and Immigration Services (USCIS), which handles the two-year, renewable amnesty program, could easily have been instructed to suspend processing of DACA applications – both for renewals and first-time applicants – until further notice.

That hasn’t happened, at least not yet. In response to an inquiry from me earlier today, USCIS spokesman Steve Blando e-mailed me the following: “We are still accepting/processing DACA requests under existing policy.” He told Politico the same thing, verbatim. Politico also reported that “according to the most recent public statistics — from the third quarter of last year — an average of about 140 initial applications and 690 renewals were approved each calendar day.”

If that average holds up, it means that more than 800 illegal aliens received new or renewed work permits during the first business day of the Trump administration.

Despite the fact that suspending the DACA program would simply require a memo to USCIS, it’s at least possible that this is a snafu; there wasn’t much of a campaign infrastructure or a government-in-waiting, so the transition team had a heck of a time preparing for January 20. Maybe the memo to halt DACA is stuck in someone’s in-box. The anti-enforcement Obama administration faced a comparable case of seemingly betrayal when in early 2009 ICE conducted a workplace raid without approval from Washington and arrested a bunch of illegals. The anti-borders crowd raised holy hell and DHS Secretary Janet Napolitano pledged to get to the bottom of the scandal, with the result that the illegals were released and given work permits, and worksite raids pretty much ended for the next eight years.

On the other hand, it could be that the Priebus faction won out over the Bannon faction and there was a conscious decision to betray the immigration hawks who put Trump in the White House. Reince Priebus yesterday, and Sean Spicer today, hinted pretty strongly that the administration has decided to abandon its explicit commitment to halt DACA. Spicer said the administration’s focus would be on “people who can do harm, or who have done harm, and have a criminal record.” But this is a non sequitur. Ending DACA isn’t about deporting the illegals covered by Obama’s lawless decree; it’s not even about canceling all their work permits. Rather, the program should be stopped, so no new or renewed work permits are issued, and the ones outstanding should simply be permitted to expire at their scheduled times. David Bier over at Cato did the math and here’s his estimate of the timeline for expirations:

DACA expirations

If the Trump administration just continues to issue work permits to illegal aliens as though the election never happened, not only is it an in-your-face betrayal, it also weakens congressional Republicans’ bargaining position. I’m actually in favor of giving green cards to illegals who came as young children; here’s my 2010 NR piece outlining a DREAM Act 2.0, which would trade amnesty for this modest but sympathetic share of the illegal population in exchange for nationwide E-Verify and an end to family chain migration and the visa lottery. The president himself suggested his openness to something like that last month, when he said “we’re going to work something out” for the DREAMers. But Chuck Schumer isn’t going to deal unless there’s pressure, and the prospect of hundreds of DACAs losing their work permits each day that Schumer holds out is an important element of that pressure (unless McConnell just scraps the current 60-vote cloture rule, which he should). Without suspending the DACA program, what bargaining power does the administration have?

Will Trump give work permits to another 800 illegal aliens tomorrow? Stay tuned.

Ten Things that Caught My Eye Today (January 23, 2017)

How Transformative Was Obama?

by Ramesh Ponnuru

In 2008, Barack Obama said that “Ronald Reagan changed the trajectory of America in a way that, you know, Richard Nixon did not and in a way that Bill Clinton did not.” Obama clearly wanted to be a Reagan, not a Nixon or a Clinton. In a recent NR, I argue that at this moment “it appears that the Obama project has failed.” It appears that way because nobody is doing for Obama what George H. W. Bush and Bill Clinton did for Reagan—in the first case, succeeding him by running on his political formula; in the second, showing that the opposition had to move in his direction to be successful.

Ross Douthat, in response, points out that the new Republican president says that he favors “near-universal health care, in some form at least,” and that the Iraq war was a mistake. The GOP has thus taken on board “two key planks of Obama’s agenda circa 2008-2009.”

But Trump’s view on health care is less novel than Douthat suggests. John McCain’s platform in 2008, whether or not he knew it, included the view that we should change the tax treatment of health insurance to enable nearly everyone to buy health insurance. It was, for that matter, the view George W. Bush took late in his administration. Sticking with that view is not a concession to Obama.

Let me forestall a possible objection here: It may well be that a rise in the percentage of the population with insurance will turn out to be one of Obama’s lasting legacies. That could happen either because Republicans fail to replace Obamacare or because they replace it with something that covers a comparable number of people. But you can have lasting policy achievements—as both Nixon and Clinton did; nobody has gotten rid of the Environmental Protection Agency or the Children’s Health Program—without being politically transformative.

What I think Obama had in mind in that quote about Reagan, I think, included but went beyond discrete policy issues. Part of Reagan’s political achievement was to bring the top tax rate down and to make it politically impossible for anyone to propose bringing it back to where it had been. Another part was that in the years after Reagan, Democratic politicians were much more concerned about being labeled big-government liberals than they had been in, say, the mid-1960s. They were much, much more cautious about proposing big new government programs than Lyndon Johnson. That change wasn’t all Reagan’s doing, of course, but he had a lot to do with it.

I don’t think Obama has pulled American politics leftward in the same way. Take Douthat’s Iraq War point. Did the Republican party, by nominating Trump, embrace important aspects of Obama’s foreign policy and thus make it a bipartisan common place of American politics? Trump’s distinctiveness as a politician undermines the claim: He didn’t just move in Obama’s direction about the decision to invade Iraq in 2003, but arguably overshot it.

Nor can we say, I think, that political defeat at the hands of Obama made the Republicans move in his direction by adopting a more generally restrained foreign policy. On Libya, Trump attacked Obama for not having been restrained enough. Instead of trying to minimize the distance between hawkish Republicans and dovish Democrats, he got on the other side of the split. And we’ll look on the questions of how restrained Trump is, what lessons he learned from Iraq, and whether they are the same ones that Democrats and others did, very differently if he makes good on his sporadic promises to take Middle Eastern oil.

Then again, we’ll also look at the question of Obama’s legacy differently if in the middle of Trump’s presidency he encounters political setbacks, does a 180, and appoints Obama retreads to top positions the way Arnold Schwarzenegger did in California. Which is to say that while the Obama project looks much less successful now than it did a year ago, its fortunes could still improve.