Category: reason

The New York Times has reviewed “a memo circulated on Saturday by Ron Klain, his incoming White House chief of staff” about President-Elect Biden’s flurry of executive actions for January 20:

They include rescinding the travel ban on several predominantly Muslim countries, rejoining the Paris climate change accord, extending pandemic-related limits on evictions and student loan payments, issuing a mask mandate for federal property and interstate travel and ordering agencies to figure out how to reunite children separated from families after crossing the border. . . .

The rescission of the travel ban should not be difficult. President Trump was able to issue the proclamation unilaterally. I am not up to speed on the specifics of rejoining the Paris accords.

I wrote that Trump’s eviction moratorium was likely unlawful. There are several cases pending that challenged that policy, including by the New Civil Liberties Alliance, the Texas Public Policy Foundation, and the Pacific Legal Foundation. Presumably, those cases will be amended to include the new Biden policy. We may yet see the first nationwide injunction agains the Biden administration in one of those cases.

I have also written about the validity of mask mandate for federal property and interstate travel (here, here, here, and here). The former type of mandate would be easier to enact. The latter is much more context specific. Planes and trains are perhaps permissible, but automobiles may go too far. The article suggests a more moderate policy may be in the cards:

As with many of Mr. Trump’s own executive actions, some of them may sound more meaningful than they really are. By imposing a mask mandate on interstate planes, trains and buses, for instance, Mr. Biden is essentially codifying existing practice while encouraging rather than trying to require broader use of masks.

Biden will then issue a raft of orders on days 2 through 10:

On Mr. Biden’s second day in office, he will sign executive actions related to the coronavirus pandemic aimed at helping schools and businesses to reopen safely, expand testing, protect workers and clarify public health standards.

On his third day, he will direct his cabinet agencies to “take immediate action to deliver economic relief to working families,” Mr. Klain wrote in the memo.

The subsequent seven days will include more executive actions and directives to his cabinet to expand “Buy America” provisions, “support communities of color and other underserved communities,” address climate change and start an effort to reunite families separated at the border.

I look forward to the posts on the Take Care Blog about the validity of these actions:

On the other side, Mr. Biden risks being criticized for doing what Democrats accused Mr. Trump of doing in terms of abusing the power of his office through an expansive interpretation of his executive power. Sensitive to that argument, Mr. Klain argued in his memo that Mr. Biden will remain within the bounds of law.

“While the policy objectives in these executive actions are bold, I want to be clear: The legal theory behind them is well-founded and represents a restoration of an appropriate, constitutional role for the president,” Mr. Klain wrote to his staff.

Biden also proposes legislation that would “providing a pathway to citizenship for 11 million people in the country illegally.”

Mr. Biden’s determination to ask Congress for a broad overhaul of the nation’s immigration laws underscores the difficulties. In his proposed legislation, which he plans to unveil on Wednesday, he will call for a path to citizenship for about 11 million undocumented immigrants already living in the United States, including those with temporary status and the so-called Dreamers, who have lived in the country since they were young children.

If enacted, that legislation would moot out the longstanding DACA litigation. This bill would also likely shorten massive backlogs in the immigration courts.

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William R. Allen, my multiple-times UCLA econ professor when I was in college between 1989 and 1993, author of The Midnight Economist, and co-author of Alchian & Allen’s University Economics, died recently. I had him at UCLA for Econ 2 (Macroeconomics), Econ 107 (History of Economic Thought), and an independent study project. (I believe Eugene also took a class from him when he was in college.)

Here’s Donald Boudreaux discussing the Alchian & Allen textbook:

Among the ten greatest books ever written in economics is University Economics. First published in 1972, this textbook that is co-authored by Armen A. Alchian and William R. Allen is a marvel. If you read it and grasp even no more than one-third of its lessons you will gain keener insights into economic forces at work than are had by some Nobel laureates in economics. If you grasp most of the lessons of this book, you will possess economic insight that is rivaled by very few people indeed.

And here’s Peter Boettke:

Allen was a force in the great UCLA tradition of economic education that challenged the Keynesian hegemony in the 1960s-1970s.  His retrospective on UCLA is one of my favorite and most informative retrospectives on the trials and tribulations of maintaining greatness over time in an academic setting.

Somehow, I managed to get through an economics degree at UCLA without having taken classes from the old great ones—Alchian, Demsetz, Hirshleifer, etc. I didn’t even know who they were until way after I graduated; I chose professors strictly by who fit into my schedule; and I thought “Theory of the Firm”, “Industrial Organization”, and “Public Finance” (all topics that I ended up specializing in when I was in grad school) were dull topics for business-school types! Someone should have counseled me otherwise at some point.

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Dustin John Higgs, 48, was put to death at about 1:23 a.m. this morning by lethal injection at the federal prison in Terre Haute, Indiana.

His execution is the 13th that has occurred since the Department of Justice under President Donald Trump and now-retired Attorney General William Barr announced the return of the death chamber and relaunched lethal injection protocols. The first of these executions was of Daniel Lee in July 2020, and all the rest followed over the next six months—a density of executions unheralded in modern American history. Under Trump, the federal government has executed more prisoners than under any president of the past 100 years.

The death of Higgs was one of three executions to take place in the final days of the Trump administration. Earlier in the week, Lisa Montgomery and Corey Johnson were also executed via lethal injection at the federal prison in Terre Haute.

All three inmates had been fighting this ultimate fate and had appeals pending in courts. At points during the week, federal courts had ordered stays to determine mental competency (as in Montgomery’s case) or to delay executions because both Johnson and Higgs had gotten infected with COVID-19. In each case, rather than planning for follow-up hearings, the Department of Justice turned to the Supreme Court to have the stays vacated to carry out the executions. In each case, the Supreme Court allowed the executions to proceed, though Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer frequently announced they would have voted to allow the stays.

To be clear, these inmates hadn’t exhausted their appeals. Rather, the majority of the Supreme Court justices gave the Department of Justice permission to just ignore the appeals and carry out the executions anyway.

With Higgs, the last of these executions, Sotomayor and Breyer both released written dissents criticizing the federal government’s push to march these people to their deaths to the point that several appeal claims will remain unresolved because the prisoners are now dead. In her dissent, Sotomayor notes:

Throughout this expedited spree of executions, this Court has consistently rejected inmates’ credible claims for relief. The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing. The Court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours. Very few of these decisions offered any public explanation for their rationale.

She bluntly follows this with, “This is not justice.” Later in the dissent, she observes, “After failing to act since Higgs’ sentence was imposed in 2001, the Government gives no compelling reason why it suddenly cannot wait a few weeks while courts give his claim the consideration it deserves. Certainly, there is no ‘imperative public importance’ behind the Government’s request.”

The reason for the rush is completely obvious and entirely political. The decision to reinstate executions was a pet project of Trump’s Justice Department and Barr. President-elect Joe Biden is now opposed to the use of the death penalty (though he supported it during his “tough on crime” days). If the Justice Department did not execute these prisoners this week, it is very likely they would not have been executed at all.

Ultimately, Sotomayor’s dissent concludes:

[T]he Court has allowed the United States to execute thirteen people in six months under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised. Those whom the Government executed during this endeavor deserved more from this Court.

Meanwhile, as the federal government rushed to execute these prisoners, Mississippi actually dismissed the murder charges of a man this week. Eddie Lee Howard, who had spent more than 25 years on death row and was convicted partly on bite-mark analysis science whose validity is now questionable, is now exonerated. More than two dozen people’s murder convictions have been overturned due to the disreputability of this forensics technique.

Nobody has argued that the 13 people the federal government has executed since July were completely innocent, though it’s worth noting that Higgs didn’t actually kill anybody. He was convicted for allegedly ordering the execution of three women and accused of being the ringleader of the operation. The man who actually shot the women was sentenced to life in prison. Higgs claimed he was set up as the fall guy for the crime. In his last words, he insisted on his innocence and said that he did not order the women’s executions.

So many people having been found innocent and released from death row should be seen as an inherent indictment of the practice as a form of justice and an example of the dangers of granting the government power over life and death. If the Mississippi courts had shut down the efforts of Howard’s lawyers the way the Supreme Court snubbed lawyers for Higgs, Montgomery, and Johnson, the man would have been executed, not exonerated.

What’s so enraging about these executions is not that good people were put to death. Their actions collectively resulted in many deaths, some of them very brutal. What’s enraging, as Sotomayor notes, is that once Justice Department officials decided they wanted to execute these people, absolutely no argument or claim, even when upheld by federal courts, stopped them from proceeding.

They didn’t stop even as COVID-19 infected prison staff, prisoners, and the prisoners’ attorneys and spiritual advisers. They didn’t stop even as experts made clear that Montgomery was so mentally detached that she likely didn’t know what was happening to her (when asked if she had any final words, she simply said “no”). They didn’t stop when relatives of the victims of Daniel Davis Lee insisted they didn’t want the government to execute him. They didn’t stop when former jurors and prosecutors came forward and said they regretted sentencing Brandon Bernard to death and pleaded with the Trump administration for mercy.

And it will be a footnote, if anything at all, in the history books given everything else that has come of Trump’s administration.

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During the first impeachment I wrote a series of posts trying to answer the question of when exactly an officer is impeached. (Just to address a common terminological confusion, recall that an “impeachment” is what the House does, and an “impeachment trial” is what the Senate does.) The question seemed relevant because House Speaker Nancy Pelosi decided to sit on the articles of impeachment adopted by the House and delay delivering them to the Senate. But as I emphasized then, the question of the official timing of the impeachment was entirely academic since there is no constitutional or legal consequence to an impeachment except that the Senate may then hold an impeachment trial (unlike in some state systems where the officer is immediately suspended from his office at the moment of impeachment). The delay did have political and rhetorical consequences, however, undermining the House’s claim that the president was a clear and present danger to the republic who needed to be removed immediately.

Pelosi is doing it again. The House has voted to impeach and has approved an article of impeachment, and Pelosi has even named a team of managers to prosecute the impeachment case. But Pelosi has once again decided to sit on the articles and to not formally notify the Senate that the president has been impeached. This time it might have more substantial consequences.

On the upside, the delay does provide an opportunity for the House to improve its case. The House could adopt additional articles of impeachment or rewrite the one it has already improved. The Speaker could appoint additional managers or remove some who have already been named. The House can spend the time preparing for its prosecution, time that might be particularly valuable since the impeachment itself proceeded on an expedited schedule without hearings.

On the downside, the House’s slow process has weakened its own rhetorical framing of the need for impeachment. I thought the House should have impeached Trump immediately after the riot, before the electoral count even resumed. If the president posed an immediate danger to the republic and the Congress, then there was no time to waste. Instead, the House chose to waste time—an entire week—to impeach a president who only had two weeks left in his natural term of office. If you believed that Trump was fomenting an insurrection from the White House, this is not how you would react. There are still good reasons to impeachment and convict the president, but the House needs to take care in how it explains the case in order to deemphasize the immediate threat and emphasize the long-term principle.

More significantly, the House risks handing the Trump defense team unnecessary legal arguments. It will already be difficult to persuade two-thirds of the senators that a former president can be put on trial and convicted of high crimes and misdemeanors. I believe that the House can impeach a former president and that the Senate can try a former president, but the textual case is stronger for the latter than the former.

The House has the “sole power to impeach.” That power very clearly includes the authority to impeach a sitting president. The Senate has the “sole power to try all impeachments.” If a sitting president is impeached, the Senate has clear textual authority to conduct a trial on those impeachment charges. The Senate has proceeded to trial before when an officer has resigned after his impeachment (in the case of Secretary of War William Belknap in 1876). Even if you have doubts about whether the House can impeach a former officer, you should have far fewer doubts about whether the Senate can try an impeachment involving an officer who has left office after his impeachment.

But if you are of the view that the Senate can try all constitutionally valid impeachments, even when the officer has left the office, but an impeachment is only constitutionally valid when the impeached individual is a current officer, then the timing of the impeachment matters. Some of what Judge Luttig has written suggests that he is of this view. This might be the one circumstance in which, under the federal constitution, the question of when an officer is impeached has actual constitutional consequences.

If you take that possibility seriously—and some senators might—then it matters a great deal when exactly the House used its impeachment power to formally impeach Trump such that it can validly authorize the Senate to hold an impeachment trial. As I observed in the earlier posts, the traditional understanding of the impeachment power in the United States up until the early twentieth century was that the “impeachment” occurs when an authorized member of the lower chamber appears on the floor of the upper chamber and “impeaches” an officer by formally leveling an accusation and demanding a trial. Starting in 1912, the House has taken the view that the “impeachment” occurs when the House votes to adopt a resolution of impeachment. Under the modern view, Trump has already been impeached, and so there should be no question about whether the Senate can start a trial whenever the House gets around to exhibiting articles of impeachment. Under the traditional view, Trump has not yet been impeached and will not be impeached until the House formally notifies the Senate.

If Pelosi waits until after the inauguration of Joe Biden as president to formally notify the Senate of the impeachment and exhibit the articles of impeachment, she will have handed Trump’s defense team a jurisdictional argument that they did not need to have. At least some senators might be willing to adopt the argument that the original meaning of the power to impeach required the House to have acted sooner and that the House has no constitutional authority to redefine this power to impeach and the process necessary to realize an impeachment. This issue would not normally matter, but it might matter in this peculiar circumstance.

Pelosi can still avoid this unforced error by taking the simple expedient of formally notifying the Senate that the president has been impeached before the president leaves office at noon on January 20, 2021. This could be done even without exhibiting the actual articles of impeachment, and it is the exhibiting of the articles of impeachment that triggers the beginning of the Senate trial process under current Senate rules. Why hand argumentative ammunition to Trump’s defense team if you do not have to do so?

 

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• Coyote. Available now on CBS All Access.
• Walker. The CW. Thursday, January 21, 8 p.m.

In 1982, director Tony Richardson made a film called The Border, starring Jack Nicholson as a U.S. border patrolman who reluctantly changes sides after flukey circumstances lead him to observe, up close, the plight of refugees fleeing violence and poverty in Mexico and Central America.

The movie, flying in the face of Hollywood’s prevailing political winds of the day (the Democratic Party back then still regarded illegal immigration as a greedy corporate plot to subvert organized labor rather than a humanitarian issue), was under-promoted, didn’t find an audience, and sank with all aboard.

Nothing illustrates the profound flip-flop in the politics of immigration like Coyote, the new series on the streaming CBS All Access channel. Even though it stars Michael Chiklis, the mad-dog renegade cop of The Shield, this time you know the surly border patrolman is going to have a white-guy heart of gold in the end.  The only surprise in Coyote is the quality: It’s very good.

Sometimes a noir, sometimes a Western, sometimes a tense action thriller and sometimes piquantly funny, Coyote has something for nearly everybody—even those faithful few fans obsessed with superhero bowel movements: Chiklis detects one immigrant-smuggling ring while sitting on the toilet.

Chiklis plays Ben Clemens, who on the day the story begins, is retiring after 32 years on the job in the San Diego area. He’s no xenophobic monster, just a guy doing a job (rather well) but with no particular sympathy for the immigrants—or “TONKS,” short for “territory of origin now known,” as the border agents call them—he picks up for deportation. Nor does he recognize the job’s cost to his own family; he’s divorced, a stranger to his kids, and doesn’t wonder at all why his wife left him for a touch-feely therapeutic counselor (played annoyingly well by a sympathy-oozing  Mark Feuerstein).

Clemens also has some embarrassing and perhaps tragic secrets in his career background. One of them, involving the death of his long-time partner Javy, is what takes him across the border after his retirement; Javy was building his family a house there, and Clemens is determined to finish the work. But an inadvertent and—by itself—not terribly threatening encounter with the hothead nephew of a Mexican narcotrafficker leads to an escalating confrontations. In the end, Clemens finds himself unwillingly escorting the narco’s teenage (and pregnant) mistress through a gap in the U.S. border barriers to help her evade a beating or worse. And that’s far from the end of the matter.

That armed trek across the desert—it consumes almost the entire second episode, and at one point I seriously wondered if it might take up the entire remainder of the six-hour series—is what turns Coyote from an interesting but rather ordinary cop show into high drama that at times borders on epic. Clemens’ pidgin conversations with Maria Elena (Salvadoran actress Emy Mena), the refugee girl he’s helping—neither of them speak more than a few words of the other’s language—are often comic. Practicing an English sentence that, Clemens has assured her, will make her a candidate for asylum if she’s captured by the Border Patrol, Maria Elena blunders through the alien words: “I have a well-founded fear of the constitution.” Reverting to Spanish to curse out loud at her luck at being trapped with a pigheaded fat man, a gordo, she reels in confusion at Clemens’ wounded bellow: “I understood that!”

But the conversations are also revelatory and barrier-breaking. Clemens learns that Maria Elena is neither a criminal or a moral slacker but a girl who fled a Salvadoran gang that murdered her teacher father and was rounded up like a runaway slave by the Mexican narcotrafficker who impregnated her. And Maria Elena learns that Clemens may be fat, old and sometimes clumsy (Chiklis has put on some years and pounds since The Shield), but he still has considerable skills in negotiating the U.S. border gauntlet, and he’s dedicating them all to her rescue.

That border and the desert surrounding it are almost like characters in Coyote. Director Michelle McLaren, who clearly learned a thing or two while working on the New Mexico-based Breaking Bad and Better Call Saul, makes skillful use of dunes and cactus to evoke the pitiless nature of the sere landscape that illegal immigrants must survive to reach America. (She’s also very good at depicting the hustling hurly-burly of the urbanized portion of the border in Tijuana.) The cops and narcotraffickers aren’t the only predators haunting Coyote.

Yet Coyote is no mere immigration sob story. By the conflating the activities of narcotraffickers and immigrant-smugglers—a fusion that often takes place on the southwestern U.S. border, where it usually occurs to the men engaged in one of those trades  that they could boost their profits by adding the other—the show introduces a challenging moral complexity to its tale. The libertarian argument that the drug trade (or, for that matter, the immigration trade) would not be practiced with such savagery if it was legal is persuasive in the long run but of marginal relevance at a moment when you’re caught in a tunnel full of people waving knives and firing pistols. Maybe somebody we can take a sword to the Godrian knot of smuggling, but the guy wielding it won’t be a Ben Clemens wobbling around on bad knees, a fat gut, and a supervisor’s cattle prod. Until then, Coyote is a fascinating, and very affecting, look at the situation on the ground.

If the three-dimensional quality of Coyote is a surprise, then it’s hard to know what word to use of The CW’s Walker, a remake of the old 1990s CBS slugfest Walker, Texas Ranger, starring Chuck Norris as the ass-kickingest lawman in television. (Typical Chuck Norris joke, of which there are many: Q. Why does Chuck Norris sleep with a night light? A. Because the dark is afraid of Chuck Norris.) TV Guide once remarked that Walker, Texas Ranger producers and directors didn’t bother with story meetings and that stuff. They just “tell Chuck Norris to start kicking people’s faces in for a solid hour, which he seems more than willing to do.” Though, the magazine added, the show’s screenplays deserved some credit: “they’re scripted so Norris doesn’t need to speak much.”

Given that, you can probably imagine that I wasn’t expecting much from The CW remake beyond a possible stroke. Startlingly, it’s not bad; or, as Darren McGarvin said of the bottle of wine he found under the tree in A Christmas Story, “This wine isn’t bad. It’s not good, but it’s not bad.” The new Walker has absolutely no connection to the older one except the name of the lead character.

Gone is Norris and his single emotional on-screen note, primal bloodlust. This time around the role is filled by the hunky and charismatic Jared Padalecki, who played a ghost-busting Stanford dropout for 15 years on The CW’s Supernatural. And his presence alone keeps Walker interesting while it sorts out what it wants to be:  a cop show or a teen-angst melodrama as Walker’s whiny kids complain endlessly about their dad having to have, you know, a job. I kind doubt that Padlecki, who battled werewolves and such in Supernatural, will settle for the latter.

Oh, and if you were wondering, no, Chuck Norris does not sing the theme song of the new Walker. Or rap it, or soullessly howl it, or whatever he thought he was doing back in the day. So maybe the universe isn’t as cold and dead as 2020 made us think.

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