Viewpoint Diversity Gets a Boost as Families Flee Public Schools

birfphotos206227

Earlier this year, The New York Times looked at different editions of the same public-school textbooks published in California and Texas and found them spun in opposite directions to suit the ideological tastes of the dominant political factions in those states. It was a handy summary of the long-raging curriculum wars that have seen politicians and activists battling to present their preferred interpretations of the world to the captive audiences in America’s classrooms.

Those are wars which many families will escape this fall as the pandemic and school closures push parents to assume responsibility for teaching their own children and, not incidentally, to pass along their own views and not those prepackaged by government officials. For all the damage COVID-19 and the fumbling human responses to the virus are doing, viewpoint diversity may actually get a boost.

America’s public-school textbooks, the Times story explained, reflect the country’s polarization.

“The books have the same publisher. They credit the same authors. But they are customized for students in different states, and their contents sometimes diverge in ways that reflect the nation’s deepest partisan divides,” Dana Goldstein wrote for the Times in January of this year. “Classroom materials are not only shaded by politics, but are also helping to shape a generation of future voters,” she added.

Shaping a generation of future voters is exactly what many government officials have in mind. Children taught to believe the “correct” things will grow up to vote the “correct” way—or so authorities hope.

Goldstein’s own newspaper joined the fray with its tendentious 1619 Project, which portrays the United States as irreparably stained by racism and slavery, and free-market economics as rooted in human bondage. The project has been turned into classroom materials over the objections of historians who charge it with “a displacement of historical understanding by ideology” and despite the insistence of Nikole Hannah-Jones, the reporter who led the project, that “the 1619 Project is using history and reporting to make an argument. It never pretended to be a history.”

No wonder, as the Cato Institute points out in the intro to its Public Schooling Battle Map, that “rather than build bridges, public schooling often forces people into wrenching conflict.”

But government-run schools are going to have a smaller captive audience this year. While they’ve been slowly losing ground for a long time to charter schools, private schools, and homeschooling, many of them alienated large numbers of families this spring with clumsy responses to the spread of COVID-19. Fumbled implementation of distance learning, cavalier attitudes toward work done remotely, and confusion over when and how (and even if) schools will reopen have parents looking to alternatives.

Interest is way up now across the country in charter schools, private schools, and, especially, various DIY approaches including homeschooling and learning pods or microschools. To millions of families, these independent options hold out a better chance of delivering education safely and effectively than government institutions that keep dropping the ball and are too bureaucratic to handle a world in flux.

Independent education also means a wide range of approaches as to what children are taught, far beyond the red vs. blue, Texas vs. California choice in government-selected textbooks. Parents choosing their children’s education select options that suit them and, to the extent that they care, convey their values or, at least, don’t offend their sensibilities.

Some people, of course, don’t want children to be taught parents’ ideas rather than those of the local ruling party.

“Parents who are ideologically committed to raising children in isolation from the larger society, with views and values counter to much of the education provided in public schools, are not going to be willing or able to provide an education comparable to what schools provide,” argues Harvard Law School’s Elizabeth Bartholet in a much-discussed Arizona Law Review article.

Bartholet favors a “presumptive ban” on homeschooling and believes “policymakers should impose greater restrictions on private schools for many of the same reasons that they should restrict homeschooling.”

Interestingly, Bartholet’s attack on parents who teach their kids “views and values counter to much of the education provided in public schools” was published around the same time The New York Times revealed the spin different textbook review committees put on the materials with which students are taught in government schools. Clearly, she and her allies are OK with ideological content in education—so long as it’s chosen by political officials, not children and parents.

Specifically, opponents of independent education often decry religious and reactionary views among homeschoolers and private schoolers. Those are the viewpoints most typically fingered as being at odds with what is taught in government schools.

But families opting for different educational paths are increasingly likely to be secular. The percentage of homeschoolers identifying themselves as religious in North Carolina, which keeps especially detailed statistics, dropped from 78.3 percent in 1988-1989 to 56.5 percent in 2019-2020 even as the total number of registered home schools (many serving multiple students) rose from 1,385 to 94,863.

And rather than serve as conduits for reactionary views, very often “black parents homeschool to remove their children from what they see as a racially hostile environment” in government schools, reports Mahala Dyer Stewart, a professor of Sociology at Hamilton College. “The middle-class black mothers I interviewed say that despite their college education, salaries and advocacy on behalf of their children, they were unable to protect their children from the racial hostilities at school.”

Importantly, “greater exposure to private schooling instead of traditional public schooling is not associated with any more or less political tolerance, and greater exposure to homeschooling is associated with more political tolerance,” according to research published in 2014 by the Journal of School Choice.

In fact, families that choose independent education are much more diverse in many ways than their critics pretend. So are Americans in general, who possess a range of views more varied and interesting than you’d guess if you went by the two legacy political parties that battle over school curricula and dominate the boards that review textbooks.

This year, as growing numbers of those diverse American families take responsibility for their children’s education away from failing government institutions, they’ll also take responsibility for the contents of that education. The result is going to be an increased range of opinions, values, and interpretations to be shared and debated by students who otherwise would have been doomed to a force-feeding of officially approved ideas. The pandemic may be threatening our health and breaking our economy, but it may, ultimately, expand our minds.

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Viewpoint Diversity Gets a Boost as Families Flee Public Schools

birfphotos206227

Earlier this year, The New York Times looked at different editions of the same public-school textbooks published in California and Texas and found them spun in opposite directions to suit the ideological tastes of the dominant political factions in those states. It was a handy summary of the long-raging curriculum wars that have seen politicians and activists battling to present their preferred interpretations of the world to the captive audiences in America’s classrooms.

Those are wars which many families will escape this fall as the pandemic and school closures push parents to assume responsibility for teaching their own children and, not incidentally, to pass along their own views and not those prepackaged by government officials. For all the damage COVID-19 and the fumbling human responses to the virus are doing, viewpoint diversity may actually get a boost.

America’s public-school textbooks, the Times story explained, reflect the country’s polarization.

“The books have the same publisher. They credit the same authors. But they are customized for students in different states, and their contents sometimes diverge in ways that reflect the nation’s deepest partisan divides,” Dana Goldstein wrote for the Times in January of this year. “Classroom materials are not only shaded by politics, but are also helping to shape a generation of future voters,” she added.

Shaping a generation of future voters is exactly what many government officials have in mind. Children taught to believe the “correct” things will grow up to vote the “correct” way—or so authorities hope.

Goldstein’s own newspaper joined the fray with its tendentious 1619 Project, which portrays the United States as irreparably stained by racism and slavery, and free-market economics as rooted in human bondage. The project has been turned into classroom materials over the objections of historians who charge it with “a displacement of historical understanding by ideology” and despite the insistence of Nikole Hannah-Jones, the reporter who led the project, that “the 1619 Project is using history and reporting to make an argument. It never pretended to be a history.”

No wonder, as the Cato Institute points out in the intro to its Public Schooling Battle Map, that “rather than build bridges, public schooling often forces people into wrenching conflict.”

But government-run schools are going to have a smaller captive audience this year. While they’ve been slowly losing ground for a long time to charter schools, private schools, and homeschooling, many of them alienated large numbers of families this spring with clumsy responses to the spread of COVID-19. Fumbled implementation of distance learning, cavalier attitudes toward work done remotely, and confusion over when and how (and even if) schools will reopen have parents looking to alternatives.

Interest is way up now across the country in charter schools, private schools, and, especially, various DIY approaches including homeschooling and learning pods or microschools. To millions of families, these independent options hold out a better chance of delivering education safely and effectively than government institutions that keep dropping the ball and are too bureaucratic to handle a world in flux.

Independent education also means a wide range of approaches as to what children are taught, far beyond the red vs. blue, Texas vs. California choice in government-selected textbooks. Parents choosing their children’s education select options that suit them and, to the extent that they care, convey their values or, at least, don’t offend their sensibilities.

Some people, of course, don’t want children to be taught parents’ ideas rather than those of the local ruling party.

“Parents who are ideologically committed to raising children in isolation from the larger society, with views and values counter to much of the education provided in public schools, are not going to be willing or able to provide an education comparable to what schools provide,” argues Harvard Law School’s Elizabeth Bartholet in a much-discussed Arizona Law Review article.

Bartholet favors a “presumptive ban” on homeschooling and believes “policymakers should impose greater restrictions on private schools for many of the same reasons that they should restrict homeschooling.”

Interestingly, Bartholet’s attack on parents who teach their kids “views and values counter to much of the education provided in public schools” was published around the same time The New York Times revealed the spin different textbook review committees put on the materials with which students are taught in government schools. Clearly, she and her allies are OK with ideological content in education—so long as it’s chosen by political officials, not children and parents.

Specifically, opponents of independent education often decry religious and reactionary views among homeschoolers and private schoolers. Those are the viewpoints most typically fingered as being at odds with what is taught in government schools.

But families opting for different educational paths are increasingly likely to be secular. The percentage of homeschoolers identifying themselves as religious in North Carolina, which keeps especially detailed statistics, dropped from 78.3 percent in 1988-1989 to 56.5 percent in 2019-2020 even as the total number of registered home schools (many serving multiple students) rose from 1,385 to 94,863.

And rather than serve as conduits for reactionary views, very often “black parents homeschool to remove their children from what they see as a racially hostile environment” in government schools, reports Mahala Dyer Stewart, a professor of Sociology at Hamilton College. “The middle-class black mothers I interviewed say that despite their college education, salaries and advocacy on behalf of their children, they were unable to protect their children from the racial hostilities at school.”

Importantly, “greater exposure to private schooling instead of traditional public schooling is not associated with any more or less political tolerance, and greater exposure to homeschooling is associated with more political tolerance,” according to research published in 2014 by the Journal of School Choice.

In fact, families that choose independent education are much more diverse in many ways than their critics pretend. So are Americans in general, who possess a range of views more varied and interesting than you’d guess if you went by the two legacy political parties that battle over school curricula and dominate the boards that review textbooks.

This year, as growing numbers of those diverse American families take responsibility for their children’s education away from failing government institutions, they’ll also take responsibility for the contents of that education. The result is going to be an increased range of opinions, values, and interpretations to be shared and debated by students who otherwise would have been doomed to a force-feeding of officially approved ideas. The pandemic may be threatening our health and breaking our economy, but it may, ultimately, expand our minds.

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Brickbat: Teacher of the Year

gfloydmural_1161x653

A DeKalb County, Georgia, special education teacher has resigned after the school district opened an investigation into comments he made on a social media post that showed a man appearing to kneel on the neck of a toddler. The photo shows a white child pinned to the ground by two people who appear to be black. One of them appears to be kneeling on the child’s neck. The caption reads “blm now.” “Your [sic] doing it wrong!” teacher Brian Papin wrote. “One knee on center of the back one on the neck and lean into it until death! You saw the video!” That’s an apparent reference to a video showing a Minneapolis police officer kneeling on the neck of George Floyd, who died after being detained by cops.

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Brickbat: Teacher of the Year

gfloydmural_1161x653

A DeKalb County, Georgia, special education teacher has resigned after the school district opened an investigation into comments he made on a social media post that showed a man appearing to kneel on the neck of a toddler. The photo shows a white child pinned to the ground by two people who appear to be black. One of them appears to be kneeling on the child’s neck. The caption reads “blm now.” “Your [sic] doing it wrong!” teacher Brian Papin wrote. “One knee on center of the back one on the neck and lean into it until death! You saw the video!” That’s an apparent reference to a video showing a Minneapolis police officer kneeling on the neck of George Floyd, who died after being detained by cops.

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No Dismissal of Charges Against Massachusetts Judge Who Allegedly Helped an Arrestee Evade Immigration Officials

From Judge Leo Sorokin’s decision Monday in U.S. v. Joseph:

The government has charged Massachusetts District Court Judge Shelley M. Richmond Joseph and Massachusetts Trial Court Officer Wesley MacGregor in an Indictment alleging conspiracy and obstruction of justice in violation of 18 U.S.C. § 1512 and obstruction of a federal proceeding in violation of 18 U.S.C. § 1505. MacGregor also is charged with perjury in violation of 18 U.S.C. § 1623.

The defendants have moved to dismiss the conspiracy and obstruction charges pursuant to Federal Rule of Criminal Procedure 12(b)(3), the doctrine of judicial immunity, and the Fifth and Tenth Amendments to the Constitution. In their view, the Indictment fails as a matter of law to allege the elements necessary to establish a crime under the relevant obstruction statutes, and the government’s attempt to extend those statutes to the conduct described in the Indictment raises constitutional and other serious legal concerns. After careful consideration, the motions to dismiss are DENIED because the Indictment alleges the elements of the offenses and sufficient supporting factual detail….

The Indictment describes events that allegedly occurred at the Newton District Court (“NDC”) on April 2, 2018, while Joseph was presiding and MacGregor was working as a court officer at the NDC. Per the Indictment, an Immigration and Customs Enforcement (“ICE”) officer working for the United States Department of Homeland Security (“DHS”) arrived at the Courthouse that morning seeking to take into custody an individual who had been arrested days earlier in Newton.

The Indictment alleges that the individual was the subject of an immigration detainer and a warrant based on “a final order” of removal, reflecting DHS’s intent to detain him and effect his removal from the United States in the event he was released from state custody. Again, according to the Indictment, Joseph and MacGregor, along with a privately retained criminal defense attorney, allegedly facilitated the individual’s departure from the NDC using the rear sally port door of the lockup on the lower level of the NDC, rather than through the main door leading from the courtroom to the lobby where the ICE officer was waiting.

Based on these factual allegations, … a grand jury charged the defendants in Count I of the Indictment with conspiring to obstruct justice in violation of 18 U.S.C. §§ 1512(c)(2) and (k) as follows:

“On or about April 2, 2018, in Newton, in the District of Massachusetts, the defendants [Joseph and MacGregor] conspired with the Defense Attorney to corruptly obstruct, influence, and impede an official proceeding, namely, a federal immigration removal proceeding before the United States Department of Homeland Security.”

Count II charges the underlying offense of obstruction of justice in violation of 18 U.S.C. § 1512(c)(2) in nearly identical terms. In Count III, the defendants are charged with obstructing a federal proceeding in violation of 18 U.S.C. § 1505 as follows:

“On or about April 2, 2018, in Newton, in the District of Massachusetts, the defendants [Joseph and MacGregor] did corruptly influence, obstruct, and impede, and endeavor to influence, obstruct and impede, the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely, a federal immigration removal proceeding before the United States Department of Homeland Security.”

{MacGregor is charged in Count IV with perjury, which is not the subject of the pending motions to dismiss.} …

The question presented by a motion seeking dismissal of a lawfully returned criminal indictment “is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense.” The Court presumes the allegations of an indictment are true for purposes of assessing its sufficiency. Because dismissal of an indictment “directly encroaches upon the fundamental role of the grand jury,” the circumstances under which a trial court properly may invoke its authority in this regard are “extremely limited.” …

First, Joseph argues that the charges against her violate “core principles of judicial immunity.” … [E]ven if judicial immunity extends to the criminal context, it would apply only where “judicial acts performed within a judge’s jurisdiction” are concerned. Of course, any such immunity, if it exists, would never shield “corruption or bribery.” Where the Indictment charges that Joseph acted “corruptly,” it is not within this Court’s province on a motion to dismiss to determine whether judicial immunity, even if its reach encompasses criminal liability, provides a viable shelter for Joseph in the circumstances alleged here.

Next, Joseph and MacGregor seek dismissal of the Indictment because, they argue, it fails to state an offense under either of the two obstruction statutes it invokes. In particular, they urge that the Indictment “does not allege any corrupt intent on the part of” either defendant; it alleges interference with “the execution of a civil immigration warrant [which] does not qualify as a ‘proceeding'” under either obstruction statute; and it does not allege the sort of crime they assert is required to sustain conspiracy and obstruction charges under § 1512.

In advancing these arguments, Joseph and MacGregor lose sight of the governing legal standard. Each of the first three Counts in the Indictment alleges the elements of the charged offense by invoking the relevant statutory language, and provides sufficient factual detail to “notify the defendant[s] of the nature of the accusation against [them] and to apprise the court of the facts alleged,” Nothing more is required at this stage of the prosecution.

Finally, Joseph and MacGregor suggest that application of the charged obstruction statutes to the conduct at issue violates the Tenth Amendment and principles of Due Process. In advancing these challenges, the defendants characterize the Indictment as criminalizing their “lawful decision not to assist” the ICE officer in administering federal immigration laws, Joseph’s “decisions about how to manage [her] courtroom[],” and MacGregor’s “exercise of his daily duties.” … Joseph [suggests she] engaged in only “lawful and discretionary acts” and “did not ‘affirmatively impede’ anything” ….

At bottom, the defendants’ constitutional arguments require the assessment of disputed facts, characterizations of the events underlying the Indictment, or other evidentiary analysis. Such fact-laden determinations are outside the scope of a motion to dismiss. Because the Indictment complies with the governing legal standard, neither constitutional challenge provides an avenue to dismissal.

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No Dismissal of Charges Against Massachusetts Judge Who Allegedly Helped an Arrestee Evade Immigration Officials

From Judge Leo Sorokin’s decision Monday in U.S. v. Joseph:

The government has charged Massachusetts District Court Judge Shelley M. Richmond Joseph and Massachusetts Trial Court Officer Wesley MacGregor in an Indictment alleging conspiracy and obstruction of justice in violation of 18 U.S.C. § 1512 and obstruction of a federal proceeding in violation of 18 U.S.C. § 1505. MacGregor also is charged with perjury in violation of 18 U.S.C. § 1623.

The defendants have moved to dismiss the conspiracy and obstruction charges pursuant to Federal Rule of Criminal Procedure 12(b)(3), the doctrine of judicial immunity, and the Fifth and Tenth Amendments to the Constitution. In their view, the Indictment fails as a matter of law to allege the elements necessary to establish a crime under the relevant obstruction statutes, and the government’s attempt to extend those statutes to the conduct described in the Indictment raises constitutional and other serious legal concerns. After careful consideration, the motions to dismiss are DENIED because the Indictment alleges the elements of the offenses and sufficient supporting factual detail….

The Indictment describes events that allegedly occurred at the Newton District Court (“NDC”) on April 2, 2018, while Joseph was presiding and MacGregor was working as a court officer at the NDC. Per the Indictment, an Immigration and Customs Enforcement (“ICE”) officer working for the United States Department of Homeland Security (“DHS”) arrived at the Courthouse that morning seeking to take into custody an individual who had been arrested days earlier in Newton.

The Indictment alleges that the individual was the subject of an immigration detainer and a warrant based on “a final order” of removal, reflecting DHS’s intent to detain him and effect his removal from the United States in the event he was released from state custody. Again, according to the Indictment, Joseph and MacGregor, along with a privately retained criminal defense attorney, allegedly facilitated the individual’s departure from the NDC using the rear sally port door of the lockup on the lower level of the NDC, rather than through the main door leading from the courtroom to the lobby where the ICE officer was waiting.

Based on these factual allegations, … a grand jury charged the defendants in Count I of the Indictment with conspiring to obstruct justice in violation of 18 U.S.C. §§ 1512(c)(2) and (k) as follows:

“On or about April 2, 2018, in Newton, in the District of Massachusetts, the defendants [Joseph and MacGregor] conspired with the Defense Attorney to corruptly obstruct, influence, and impede an official proceeding, namely, a federal immigration removal proceeding before the United States Department of Homeland Security.”

Count II charges the underlying offense of obstruction of justice in violation of 18 U.S.C. § 1512(c)(2) in nearly identical terms. In Count III, the defendants are charged with obstructing a federal proceeding in violation of 18 U.S.C. § 1505 as follows:

“On or about April 2, 2018, in Newton, in the District of Massachusetts, the defendants [Joseph and MacGregor] did corruptly influence, obstruct, and impede, and endeavor to influence, obstruct and impede, the due and proper administration of the law under which a pending proceeding was being had before a department and agency of the United States, namely, a federal immigration removal proceeding before the United States Department of Homeland Security.”

{MacGregor is charged in Count IV with perjury, which is not the subject of the pending motions to dismiss.} …

The question presented by a motion seeking dismissal of a lawfully returned criminal indictment “is not whether the government has presented enough evidence to support the charge, but solely whether the allegations in the indictment are sufficient to apprise the defendant of the charged offense.” The Court presumes the allegations of an indictment are true for purposes of assessing its sufficiency. Because dismissal of an indictment “directly encroaches upon the fundamental role of the grand jury,” the circumstances under which a trial court properly may invoke its authority in this regard are “extremely limited.” …

First, Joseph argues that the charges against her violate “core principles of judicial immunity.” … [E]ven if judicial immunity extends to the criminal context, it would apply only where “judicial acts performed within a judge’s jurisdiction” are concerned. Of course, any such immunity, if it exists, would never shield “corruption or bribery.” Where the Indictment charges that Joseph acted “corruptly,” it is not within this Court’s province on a motion to dismiss to determine whether judicial immunity, even if its reach encompasses criminal liability, provides a viable shelter for Joseph in the circumstances alleged here.

Next, Joseph and MacGregor seek dismissal of the Indictment because, they argue, it fails to state an offense under either of the two obstruction statutes it invokes. In particular, they urge that the Indictment “does not allege any corrupt intent on the part of” either defendant; it alleges interference with “the execution of a civil immigration warrant [which] does not qualify as a ‘proceeding'” under either obstruction statute; and it does not allege the sort of crime they assert is required to sustain conspiracy and obstruction charges under § 1512.

In advancing these arguments, Joseph and MacGregor lose sight of the governing legal standard. Each of the first three Counts in the Indictment alleges the elements of the charged offense by invoking the relevant statutory language, and provides sufficient factual detail to “notify the defendant[s] of the nature of the accusation against [them] and to apprise the court of the facts alleged,” Nothing more is required at this stage of the prosecution.

Finally, Joseph and MacGregor suggest that application of the charged obstruction statutes to the conduct at issue violates the Tenth Amendment and principles of Due Process. In advancing these challenges, the defendants characterize the Indictment as criminalizing their “lawful decision not to assist” the ICE officer in administering federal immigration laws, Joseph’s “decisions about how to manage [her] courtroom[],” and MacGregor’s “exercise of his daily duties.” … Joseph [suggests she] engaged in only “lawful and discretionary acts” and “did not ‘affirmatively impede’ anything” ….

At bottom, the defendants’ constitutional arguments require the assessment of disputed facts, characterizations of the events underlying the Indictment, or other evidentiary analysis. Such fact-laden determinations are outside the scope of a motion to dismiss. Because the Indictment complies with the governing legal standard, neither constitutional challenge provides an avenue to dismissal.

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The Trump Administration Begins DACA Rescission 3.0, And Moots All Pending Challenge to the 2017 Dukes Memorandum and the 2018 Nielsen Memorandum

Yesterday, the Trump Administration commenced its third effort to wind down DACA. DACA Rescission 1.0 began in 2017. Attorney General Sessions wrote a letter to Acting DHS Secretary Duke. Sessions concluded that DACA was unlawful. And Duke, bound by that determination, issued a memorandum to rescind DACA on the sole ground that it was unlawful. She did not rely on any policy rationales. The district courts quickly enjoined the 2017 Duke Memorandum. Judge Bates (DDC) gave the administration another shot to rescind DACA. In 2018, DHS Secretary Nielsen issued a new memorandum. Call this document DACA Rescission 2.0. On appeal, the Supreme Court found that the 2017 Duke Memorandum was arbitrary and capricious. The majority declined to consider the 2018 Nielsen memorandum. (Justice Kavanaugh would have considered it). The Supreme Court’s decision affirmed the lower-court rulings, thus lifting the stays. As a result, the 2017 Duke Memorandum was now fully enjoined by several courts. The original 2012 DHS Secretary Napolitano Memorandum remained in full force.

On July 28, 2020, Acting DHS Secretary Wolf official withdrew the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. By doing so, he has now mooted all the challenges to the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. The district courts that entered the injunctions against those two documents no longer have a live case or controversy. Instead, we are left with the original 2012 Napolitano Memorandum. That document created DACA. And there are no court orders requiring DHS to implement the 2012 Memorandum in any fashion. Recall, all the challenges concerned the 2017 Duke Memorandum and the 2018 Nielsen Memorandum. Therefore, there is no injunction requiring DHS to grant new DACA authorizations.

For the foreseeable future (probably till November), Secretary Wolf has announced that DHS will “reject all pending and initial requests for DACA.” Doing so does not violate any court order. Again, there is no court order requiring DHS to grant DACA requests pursuant to the 2012 Napolitano Memorandum. The court orders only enjoined the 2017 Duke and 2018 Nielsen Memorandum. Here, the scope of the judgment becomes very important. A future court could order DHS to follow the terms of the 2012 Napolitano Memorandum. But that order has not yet been issued. As of today, DHS is in full compliance with all relevant court orders. (Press reports that the Trump administration has ignored the courts are simply wrong.)

But wait, there’s more. Attorney General Barr sent Secretary Wolf a letter on June 30–twelve days after Regents was decided. Barr withdrew the 2017 Sessions letter. He also withdrew the 2014 Obama Administration’s opinion that expressly authorized DAPA, and in a footnote, suggested DACA was lawful. (As of this evening, the opinion is still listed on OLC’s site.) This withdrawal is huge. OLC does not often yank opinions. I’m glad Barr finally took this step. DOJ was arguing out of both sides of its mouth in court about DACA’s legality, and was constrained by this opinion. Barr took these actions “to wipe the slate clean to make clear beyond doubt that you [Wolf] are free to exercise your own independent judgment in considering the full range of legal and policy issues implicated by a potential rescission or modification of DACA, as contemplated by the Supreme Court.”

In short, the Trump Administration has completely mooted the pending challenges to the DACA rescission. This challenge will need to start on a blank slate. For sure, the plaintiffs will argue that this new front is merely pretextual. But we will need new amended complaints, and a fresh round of litigation.

Now, what happens in November? If President Trump wins re-election, then Secretary Wolf will likely make his interim policy permanent. People who have DACA can continue to renew it, but new applications will not be granted. And that policy will be litigated up to the Supreme Court. I think Trump wins for reasons I’ll discuss below.

But what if Biden wins. Then his DHS Secretary will try to rescind the Wolf memorandum. But to do so, the Secretary would have to consider an infinitely-wide range of options under the Chief’s opinion. The failure to dot every “i” and cross every “t” could result in an arbitrary and capricious finding several years down the road. Who knows?

I think this policy is a manifestation of the John Yoo strategy. I was skeptical of this general strategy in Politifact. But I didn’t realize how it would be implemented. I simply assumed that a district court would enjoin whatever Trump does. I don’t think a district court can order the Trump Administration to exercise its prosecutorial discretion with respect to granting new DACA authorizations. The Supreme Court explained this was a substantive policy, subject to prosecutorial discretion. And there is no legal entitlement to DACA.

You see, rather than rescinding DACA, this new approach merely leaves the current memorandum in place, but declines to exercise discretion for the time being. For sure, a lower court somewhere will find this decision arbitrary and capricious. But I think the Chief Justice votes to stay those rulings. Why? Jon Adler explained well, Roberts likes to maintain the status quo.

Now what is the status quo? You may think the status quo is granting DACA applications. After all, DACA applications have been granted for nearly eight years. Well, not exactly. The status quo is that those grants were issued pursuant to discretion; not based on a court order. And now DHS is declining to exercise that discretion. The status quo, from the perspective of the 2012 memorandum, is maintained. The Wolf memorandum states this point expressly:

Consistent with the Court’s express remand for the agency’s reconsideration and the Napolitano Memorandum’s clear statement that it conferred no substantive rights, DHS did not expand beyond the status quo of the past several years for a few weeks while it was determining next steps. I now conclude that all pending and future requests should be treated in the same manner, rather than be subject to differential treatment depending on the fortuity of when DHS received the request within a short period of uncertainty. Nothing in the Napolitano Memo purports to preclude me from exercising my enforcement discretion to make these changes on an interim basis while I consider whether to make more substantial changes on a permanent basis. Even under the Napolitano Memo, no aliens had a legal entitlement to receive DACA—much less a legal entitlement to a particular renewal period. Nor can aliens with pending requests assert any meaningfully greater reliance interests in their initial or continued enjoyment of the policy and the attendant benefits than aliens who submit such requests after the issuance of this memorandum.

This paragraph can be copy-and-pasted in a stay application addressed to John G. Roberts. And I suspect it will be granted. The Trump Administration accurately understood, and desribed the status quo.

And once the Supreme Court stays the lower-court rulings, allowing this memorandum to remain in place, a Biden Administration would have to litigate for nearly two years to get out from under it. And if the Biden administration tries to grant new DACA authorizations, it will be acting in an arbitrary and capricious fashion, for failing to properly rescind the Wolf Memo. Cue an injunction from the Fifth Circuit. For years, Trump was stuck with Obama’s policies. Now, Biden would be stuck with Trump’s policies. What’s sauce for the goose is sauce for the gander.

DACA Rescission 1.0 and 2.0 were bungled, badly. Version 3.0 may actually stick for a few years until the Supreme Court decides the case. And even then, the Chief may send Biden back to square one. I have to admit, this approach is very clever, and takes the Chief on his own terms.

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The Private Space Race

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This week, American astronauts returned to earth. Their trip to the space station was the first manned launch from the U.S. in 10 years.

By NASA? No. Of course, not.

This space flight happened because government was not in charge.

An Obama administration committee had concluded that launching such a vehicle would take 12 years and cost $36 billion.

But this rocket was finished in half that time—for less than $1 billion (1/36th the predicted cost).

That’s because it was built by Elon Musk’s private company, Space X. He does things faster and cheaper because he spends his own money.

“This is the potential of free enterprise!” explains aerospace engineer Robert Zubrin in my newest video.

Of course, years ago, NASA did manage to send astronauts to the moon.

That succeeded, says Zubrin, “because it was purpose-driven. (America) wanted to astonish the world what free people could do.”

But in the 50 years since then, as transportation improved and computers got smaller and cheaper, NASA made little progress.

Fortunately, President Obama gave private companies permission to compete in space, saying, “We can’t keep doing the same old things as before.”

Competition then cut the cost of space travel to a fraction of what it was.

Why couldn’t NASA have done that?

Because after the moon landing, it became a typical government agency—overbudget and behind schedule. Zubrin says NASA’s purpose seemed to be to “supply money to various suppliers.”

Suppliers were happy to go along.

Zubrin once worked at Lockheed Martin, where he once discovered a way for a rocket to carry twice as much weight. “We went to management, the engineers, and said, ‘Look, we could double the payload capability for 10 percent extra cost.’ They said, ‘Look, if the Air Force wants us to improve the Titan, they’ll pay us to do it!'”

NASA was paying contractor’s development costs and then adding 10 percent profit. The more things cost, the bigger the contractor’s profit. So contractors had little incentive to innovate.

Even NASA now admits this is a problem. During its 2020 budget request, Administrator Jim Bridenstine confessed, “We have not been good at maintaining schedule and…at maintaining costs.”

Nor is NASA good at innovating. Their technology was so out of date, says Zubrin, that “astronauts brought their laptops with them into space—because shuttle computers were obsolete.”

I asked, “When (NASA) saw that the astronauts brought their own computers, why didn’t they upgrade?”

“Because they had an entire philosophy that various components had to be space rated,” he explains. “Space rating was very bureaucratic and costly.”

NASA was OK with high costs as long as spaceships were assembled in many congressmen’s districts.

“NASA is a very large job program,” says Aerospace lawyer James Dunstan. “By spreading its centers across the country, NASA gets more support from more different congressmen.”

Congressmen even laugh about it. Rep. Randy Weber (R–Texas) joked, “We’ll welcome (NASA) back to Texas to spend lots of money any time.”

Private companies do more with less money. One of Musk’s cost-saving innovations is reusable rocket boosters.

For years, NASA dropped its boosters into the ocean.

“Why would they throw it away?” I ask Dunstan.

“Because that’s the way it’s always been done!” he replies.

Twenty years ago, at Lockheed Martin, Zubrin had proposed reusable boosters. His bosses told him: “Cute idea. But if we sell one of these, we’re out of business.”

Zubrin explains, “They wanted to keep the cost of space launch high.”

Thankfully, now that self-interested entrepreneurs compete, space travel will get cheaper. Musk can’t waste a dollar. Space X must compete with Jeff Bezos’ Blue Origin, Richard Branson’s Virgin Galactic, Boeing, Lockheed Martin, and others.

The private sector always comes up with ways to do things that politicians cannot imagine.

Government didn’t invent affordable cars, airplanes, iPhones, etc. It took competing entrepreneurs, pursuing profit, to nurture them into the good things we have now.

Get rid of government monopolies.

For-profit competition brings us the best things in life.

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