Author: admin

Even before the recent unpleasantness, I have long read The New York Times, at least in part, as an exercise in making upper-middle-class liberals feel guilty about their consumer choices. Those convenient Amazon deliveries? Packaged by exploited laborers. Those cheap manicures? Given by nearly indentured immigrants. (Except not.)

So it does not surprise me that the Times is reacting to the latest creative workaround to dysfunctional governmental coronavirus response—parent-organized teaching pools, or “pods,” whereby a small group of kids can receive instruction and supervision for the many days this fall that schools are not in session—with a triple helping of guilt.

“Given that pods can be pricey, complicated to organize and self-selecting,” cautions the paper’s Melinda Wenner Moyer in an explainer this week, “they are likely to be most popular among families of privilege, experts say, and may worsen educational inequality.”

Yesterday, the Gray Lady rolled out a new education podcast with the sardonic title of “Nice White Parents,” whose thesis is that, “If you want to understand what’s wrong with our public education system, you have to look at what is arguably the most powerful force in our schools: White parents.”

And on the Opinion page, educator Clara Totenberg Green makes it even more explicit: “At a time when the Black Lives Matter movement has prompted a national reckoning with white supremacy, white parents are again ignoring racial and class inequality when it comes to educating their children,” she writes. “As a result, they are actively replicating the systems that many of them say they want to dismantle.”

To those not fluent in contemporary education politics, such race-based insults may seem like an odd way to persuade stressed-out parents about the best personal and policy choices come this coronavirus-compromised fall. But progressive school activists and bureaucrats have grown so reliant on the R-word when pushing through controversial reforms that they keep reaching for the club even when they are as bewildered as pod parents are about what the hell to do with kids this September.

“Many will read this article and ask what they’re supposed to do instead. I don’t have the answer,” Green confesses late in her piece. Still, the important thing is to feel bad: “They must understand that every choice they make in their child’s education, even the seemingly benign, has the potential to perpetuate racial inequities rooted in white supremacy.”

Moyer at least offers some tentative ideas about offsets. Parents could invite and subsidize underprivileged kids, though that, too, may “create friction.” They could also hire a teacher/tutor “who is Black, Indigenous or a person of color (B.I.P.O.C.), and [ask] them to implement a social justice-themed curriculum.” Whatever the offering (and cost thereof), it’s important to not withhold any monies from your sub-functional local school.

“Parents starting pods should ask their school administrators how their departure will affect both short-term and long-term school funding, [sociologist Jessica] Calarco said, and ideally donate any lost funds to the school through the P.T.A. or a school foundation,” Moyer wrote.

Well, that’s one way of looking at it. Another one is maybe OPEN UP THE DAMN ELEMENTARY SCHOOLS ALREADY. At least in places, such as the northeast, where the virus is largely in check.

Only 16 children between the ages of 5 and 14 have died from the coronavirus in the United States, according to the Centers for Disease Control; they were three times as likely since February to die from the flu, five times as likely to die of pneumonia.

Study after study has shown that kids 10 and under rarely contract, get sick from, or transmit COVID-19. One leading British epidemiologist told The Times of London this week that there is no known case in the world of a student transmitting the disease to a teacher. Given the hard lessons learned this spring—Zoom learning and cabin fever is no way to manage the time of elementary-age children—school districts in non-hot zones should be bending all their will toward preparing a full fall reopening for willing families.

But they aren’t. New York Mayor Bill de Blasio said this week that public schools will open around half-time this fall, and that he won’t make a final decision until September. Despite some pretty vigorous pushback in—yes!—The New York Times, the failed presidential candidate has demonstrated more interest recently in quoting Karl Marx than solving the number one anxiety of hundreds of thousands of his constituents.

So maybe, given de Blasio’s own predilections for using “racism” as a weapon in education-policy disputes, I should just give in to the guilt-trip, and suggest in my OUTSIDE VOICE that my family’s tentative plan to organize a pod among our kindergartner’s classmates is an atavistic yawp of maintaining white privilege or whatnot. Whatever works, right?

Well, no. At some point, we need to have adult conversations about education policy in New York and elsewhere that don’t immediately default to the single most incendiary topic in American life. Parents are podding up not because they want to separate their children from people who don’t look like them, but because the damn schools aren’t open, and they would rather eat razor blades than experience another season like this spring.

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Juvenile cases have historically been litigated confidentially. Ordinary criminal cases have historically been litigated openly, and the First Amendment has been read as protecting that openness. What should happen when serious juvenile cases are transferred to ordinary criminal court? Here’s one judge’s answer, from today’s ruling by Judge Michael P. Shea in Hartford Courant Co. v. Carroll (D. Conn.):

[T]he Courant challenges the confidentiality provisions of Connecticut’s recently enacted Juvenile Transfer Act, … which require that cases transferred from juvenile court to adult criminal court be conducted in private and that judicial records in such cases remain under seal unless and until a verdict is rendered or the defendant pleads guilty. Arguing that these provisions violate the right of access to court proceedings and records guaranteed by the First Amendment …, the Courant seeks a declaration that the provisions are unlawful and an injunction against their enforcement….

[I grant] the Courant’s motion for a preliminary injunction, which seeks … an order prohibiting Defendants from sealing any newly filed judicial records and requiring Defendants to unseal all judicial records that have previously been sealed under the challenged legislation….

Consistent with their rehabilitative goals, juvenile delinquency proceedings in Connecticut are confidential…. On July 9, 2019, the Connecticut General Assembly enacted the Juvenile Transfer Act …. The Act amended existing law governing the “transfer of matters involving certain criminal charges against persons who were between the ages of fifteen and eighteen at the time of the alleged offense from the juvenile docket to the regular criminal docket.” Specifically, as discussed below, the Act restricted access to proceedings and records of matters transferred to the regular criminal docket, making them confidential….

The Courant provides examples of Transferred Matters that the newspaper cannot cover as a result of the Act:

• The highly publicized prosecution of now 59-year-old Michael Skakel for the 1975 murder of Martha Moxley, which occurred when Skakel was 15 years old, has been retroactively sealed. Skakel was tried as an adult and convicted of the 1975 murder in 2002. But in 2018, the Connecticut Supreme Court reversed his conviction based on ineffective assistance of counsel. The Courant alleges that Connecticut is “contemplating re-trying Skakel,” but “Skakel’s case has now been sealed pursuant to the Act.” As a result, if Skakel is retried, neither the public nor the press would be able to attend any criminal proceedings or access judicial records.
• “[T]he Courant will be unable to provide information to the public about the prosecution of a 16-year-old defendant charged with first-degree manslaughter in connection with the hit-and-run death of a 71-year-old woman during an alleged shoot-out in Hartford in October 2019.” …
• The Courant cannot cover the prosecution of “16-year-old Alexander Bolanos, who was charged with conspiracy to commit murder in connection with the December 2018 drive- by shooting death of a 12-year-old in Bridgeport, Connecticut.” ….

[T]he Courant has shown a clear and substantial likelihood of success on the merits of its First Amendment claim….

It is well-established that “the First Amendment grants both the public and the press a qualified right of access to criminal trials” and related criminal proceedings such as voir dire and preliminary hearings…. The proceedings at issue here in Transferred Matters are criminal prosecutions, including criminal trials and related pretrial proceedings, all of which take place on the regular criminal docket of the Superior Court. The statute specifically provides that “[u]pon the effectuation of the transfer, such child shall stand trial and be sentenced, if convicted, as if such child were eighteen years of age.” It is clear, then, that the “place and process” involved here is one that has “historically been open to the press and general public”; the Supreme Court has held that the right of access to criminal prosecutions has a long historical pedigree. Even the history of Transferred Matters in the Connecticut Superior Court is consistent with this tradition: the Defendants admit that, “[p]rior to October 1, 2019, a case transferred from the juvenile docket to the regular criminal docket was public unless it was subsequently transferred to the Youthful Offender Docket” under Conn. Gen. Stat. § 54-76h. The Defendants cite no case suggesting that the right of access to proceedings and court records in a criminal prosecution has ever hinged on the age or other personal characteristics of the defendant.

While it is true, as noted, that the Supreme Court has not determined whether a First Amendment right of access extends to juvenile delinquency proceedings, the Transferred Matters are criminal prosecutions, not juvenile delinquency proceedings. Juvenile delinquency proceedings “are fundamentally different from criminal proceedings,” because they do not involve adjudications of guilt and … focus on rehabilitation rather than punishment. An adjudication of delinquency requires the court not to mete out punishment on behalf of the community but to apply “services, sanctions and secure placements … in order to provide individualized supervision, care, accountability, and treatment” to the child. The goals of the juvenile justice system are not only to “[h]old juveniles accountable for their unlawful behavior” but also to provide therapeutic programs and services “designed to prevent reoffending and to effectively minimize the depth and duration of the juvenile’s involvement in the juvenile justice system.” … Juvenile delinquency proceedings therefore differ in both form and function from the criminal prosecutions at issue in this case and constitute a distinct “place and process,” for purposes of assessing the First Amendment right of access.

The second prong of the Press Enterprise II test also supports a finding that the First Amendment right of access attaches to Transferred Matters because public access plays a significant positive role in the functioning of the judicial process in such matters. As with any criminal proceeding, public scrutiny of the Transferred Matters enhances quality, protects integrity, fosters an appearance of fairness, heightens respect, and permits the public to participate in and serve as a check upon the judicial process.

Transferred Matters involve charges of serious crimes in which the public has a clear interest and for which the juvenile defendants face severe potential punishments. The safeguards to the integrity of the factfinding process and the enhanced appearance of fairness that public access brings to judicial proceedings are not diminished by the age or other personal characteristics of the litigants. Both experience and logic, therefore, suggest that a qualified right of public access under the First Amendment attaches to Transferred Matters.

Defendants argue that transferring a case from the juvenile docket to the regular criminal docket does not change the age of the defendant or the state’s associated interest in keeping the records about his or her case confidential. True, but the question for the moment is whether there is a First Amendment right of access at all; whether that right should prevail over countervailing interests is a separate question, which I address below. And, as shown, the age of the defendant does not alter the fundamental nature of the proceeding in a Transferred Matter, which becomes a criminal prosecution once the transfer occurs. In Globe Newspaper Co., the Court held that the First Amendment guaranteed a qualified right of access to criminal trials even during the testimony of minor victims of a sex offense. If the age of the victim does not affect whether there is a First Amendment right of access to criminal proceedings and records, there is no reason the age of the defendant should.

I thus agree with the Courant that the same qualified First Amendment right of access that has long attended criminal proceedings attaches to the Transferred Matters and applies to both the proceedings and the court records in these cases….

There’s a good deal more, including about when the presumption of public access can be rebutted, but to see that you’ll have to read the opinion.

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In March, the NO BAN Act was introduced in the House as H.R. 2214. (I only learned of it today). This bill would modify the statutory regime that President Trump relied on to implement his various travel bans. Moreover, this bill would obviate Chief Justice Roberts’s statutory analysis from Trump v. Hawaii. Finally, this bill recognizes many of the textual difficulties with Hawaii’s case that I identified early on in the litigation.

8 U.S.C. 1182(f)

Section 3 of the bill would modify 8 U.S.C. 1182(f). This statute currently provides the President with broad discretion to “suspend” the “entry” of “classes of aliens” for “such period as he shall deem necessary.”

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

During the travel ban litigation, the plaintiffs argued that this statute violated the non-delegation doctrine. I contended that it did not violate the non-delegation doctrine. My co-blogger Ilya Somin takes the opposite position.

In any event, the new bill would remove any doubts about the non-delegation doctrine. This revision would put very, very specific limits on how and when the President could suspend entry.

First, the statute only allows the President to “temporarily” suspend the entry of aliens “if the Secretary of State, in consultation with the Secretary of Homeland Security, determines, based on specific and credible facts, that the entry of any aliens or any class of aliens into the United States would undermine the security or public safety of the United States or the preservation of human rights, democratic processes or institutions, or international stability.” Second, the President must “narrowly tailor the suspension or restriction, using the least restrictive means, to achieve such compelling government interest.” In effect, the decision to suspend entry would be subject to strict scrutiny. Third, the President must “consult Congress” before issuing the suspension, and “provide Congress with specific evidence supporting the need for the suspension or restriction and its proposed duration.” Fourth, if the President fails to brief Congress within 48 hours after the suspension, “the suspension or restriction shall immediately terminate absent intervening congressional action.” There is no wind-down period, like with the War Powers Resolution. The suspension terminates right away. Fifth, the statute authorizes judicial review–both declaratory and injunctive relief–as well as class action certification. Sixth, the statute says “Nothing in this section may be construed as authorizing the President, the Secretary of State, or the Secretary of Homeland Security to act in a manner inconsistent with the policy decisions expressed in the immigration laws.” Ha! As if there is a single set of “policy decisions” that can be derived from immigration laws. The entire body of jurisprudence is so fragmented and balkanized.

This bill, if enacted, would make it virtually impossible for any President to use this authority. And if a President does use this authority, a court would have a very, very easy time enjoining the suspension. Or Congress could simply deem the consultation inadequate, in which case the suspension terminates on its own. The suspension power becomes a dead letter.

If enacted, Section 1182(f) will impose significant restrictions on the President’s authority. Trump v. Hawaii did not directly address the extent to which the President’s power to suspend entry derives from Article II. The Court did not reach this issue because Section 1182(f) provided the requisite authority. But now that such statutory authority is lacking, the statute–as applied–may intrude on the President’s inherent authority. I discussed the President’s Article II powers to exclude on pp. 148-151 on this article.

I have doubts whether a President Biden would even sign this bill, as it would curtail his ability to engage in foreign policy prerogatives. I think OLC would deem this provision unconstitutional.

8 U.S.C. 1152(a)

Section 2 of the bill would modify 8 U.S.C. 1152(a)(1)(A). I’ve added the revisions in red.

Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa or a nonimmigrant visa, admission or other entry into the United States, or the approval or revocation of any immigration benefit because of the person’s race, sex, religion, nationality, place of birth, or place of residence, except if expressly required by statute, or if a statutorily authorized benefit takes into consideration such factors.

The statute expands the scope of this nondiscrimination provision. It previously only applied to “the issuance of an immigrant visa.” This statute did not extend to the operative phrase in Section 1182(f)–that is, “entry.” In February 2017, I was one of the first people to argue that Section 1152 was simply irrelevant to the travel ban–President Trump was denying entry, not denying immigrant visas. All of the lower courts, as well as the entire legal academy said I was wrong. In Trump v. Hawaii, Chief Justice Roberts adopted my analysis wholesale. The Court explained that there is a distinction between entry (Section 1182) and immigrant visas (Section 1152). He wrote:

In any event, we reject plaintiffs’ interpretation because it ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the pool of individuals who are admissible to the United States. . . . Sections 1182(f) and 1152(a)(1)(A) thus operate in different spheres: Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once § 1182 sets the boundaries of admissibility into the United States, § 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The distinction between admissibility—to which § 1152(a)(1)(A) does not apply—and visa issuance—to which it does—is apparent from the text of the provision, which specifies only that its protections apply to the “issuance” of “immigrant visa[s],” without mentioning admissibility or entry.

Now, the proposed bill would mention entry, thus obviating Roberts’s reading of the statute.  Section 1152 would now expressly applies to “or a nonimmigrant visa, admission or other entry into the United States, or the approval or revocation of any immigration benefit.”

A brief note on terminology: Congress is not “overturning” Trump v. Hawaii. (It is all to common to say that the Lilly Ledbetter Fair Pay Act of 2009 “overturned” Ledbetter v. Goodyear Tire (2007)). Congress cannot “reverse” a Supreme Court decision for the same reason the Supreme Court cannot “strike down” or “nullify” an act of Congress; Congress writes the laws, and the Court’s interpret them. If the law changes, then the Courts interpret the new statute.

Second, the proposed bill would expressly add “religion” as a protected class. Most people would say, Huh, how is religion not already a protected class? It isn’t. During the travel ban litigation, I also contended that the Court’s Establishment Clause cases are purely domestic. (See this article). Congress routinely considers religion with respect to the issuance of visas. Now, with this revision, it would be illegal to discriminate on the basis of race, as well as religion, with respect to entry. There is no need to rely on the Court’s Establishment Clause jurisprudence.

I think the revisions of Section 1152 are constitutional with respect to the issuance of visas. That matter is squarely within Congress’s authority. The President has no independent constitutional power to issue visas on his own. However, I have some doubts about whether Congress can place restrictions on the President’s power over “entry.” If the power to suspend entry is an inherent power, then Section 1152 may run afoul of Article II. The restrictions in Section 1152 are far less severe than those in the new Section 1182. And I don’t think the discriminating on the basis of race or religion, with respect to entry, would violate the First and Fourteenth Amendment’s. Such classifications would, consistent with Trump v. Hawaii, be subject to rational basis review.

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