Upcoming Federalist Society Executive Branch Review Conference

Next week, the Federalist Society will be holding an online Executive Branch Review conference, which will include panels on a wide range of issues related to—you guessed it!—executive power. Registration is free at the above link.

I myself will participate in a panel on “State Sovereignty or Fair-Weather Federalism?” The other participants will be Prof. Edward Rubin (Vanderbilt), Prof. Carolyn Shapiro (Chicago-Kent, former Solicitor General of Illinois), and Judd Stone (Solicitor General of Texas). Judge John Nalbandian (6th Circuit) will moderate. The panel is diverse in terms of both political ideology and views on federalism issues. For example, Prof. Rubin is a leading academic critic of constitutional federalism (which he sees as mostly harmful, at least in the United States), whereas my own view is close to the opposite of his.

Among other panels, I think the ones on non-delegation, and civil rights should be especially interesting, though your interests may, of course, differ from mine.

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Brink Of New Intifada: Jerusalem Unrest Escalates To Rocket Fire As Israel Activates Troop Battalions

Brink Of New Intifada: Jerusalem Unrest Escalates To Rocket Fire As Israel Activates Troop Battalions

The weekend of unrest in Jerusalem and the West bank is breaking out into broader conflict and rocket fire between Israel and Gaza, with reports of at least 30 rockets fired toward Jerusalem on Monday.

Incoming rocket sirens have been activated in multiple areas across Israel including Jerusalem and the Beit Shemesh area, which lies west of the city. Early reports suggest multiple of the rockets were intercepted by the Israel Defense Force’s (IDF) Iron Dome system, however at least one inhabited building has been reported hit outside of Jerusalem. Israel has initiated airstrikes on northern Gaza.

Hamas has claimed responsibility for the fresh rocket attacks after Israeli security forces refused an ultimatum to withdraw from Temple Mount and the Sheikh Jarrah neighborhood. Palestinian Islamic Jihad has also claimed to have fired at least 30 rockets from the Gaza Strip.

The weekend had witnessed Israeli police forcibly push out Muslim worshippers from the al-Aqsa and Temple Mount areas, which intensified clashes. 

Early social media videos show there have been multiple direct impacts in residential areas of Jerusalem:

In response the IDF has sent reinforcements to muster near Gaza, fearing a escalation, according to The Jerusalem Post, after it was earlier reported on Sunday that Israel’s military deployed an additional three battalions to the West Bank also as the East Jerusalem Sheikh Jarrah neighborhood is a flashpoint after police began evicting dozens of Palestinians from their homes and Jewish settler groups began moving in.

The extra IDF deployments constitute thousands more soldiers than are typically present in the West Bank, setting the stage for potential broader Palestinian uprising.

There had already been days of tit-for-tat attacks focused in Jerusalem, reportedly resulting in hundreds of Palestinians wounded and arrested, particularly related to the ongoing controversial ‘Jerusalem Day’ which involves Israeli-flagged Jewish parades marching through Muslim and Christian neighborhoods.

Meanwhile, Hamas is vowing more rockets

He [Abu Obeida, spokesman for Hamas’ military wing] threatened more attacks if Israel again invades the sacred Al-Aqsa compound or carries out evictions of Palestinian families in a neighborhood of east Jerusalem.

Earlier, Israeli police firing tear gas, stun grenades and rubber bullets clashed with stone-throwing Palestinians at the iconic compound.

More than a dozen tear gas canisters and stun grenades landed in the Al-Aqsa Mosque, one of Islam’s holiest sites, as police and protesters faced off inside the walled compound that surrounds it, said an Associated Press photographer at the scene. Smoke rose in front of the mosque and the iconic golden-domed shrine on the site, and rocks littered the nearby plaza. Inside one area of the compound, shoes and debris lay scattered over ornate carpets.

And now fires at the sacred Temple Mount area?…

Chaos is breaking lose with many commentators noting tensions are on knife’s edge, to the point we are likely about to witness a new Palestinian Intifada

Tyler Durden
Mon, 05/10/2021 – 13:40

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The Jobs Picture Is More Complex Than It Seems


Option 1_-2

With help wanted and now hiring signs affixed to restaurants seemingly nationwide, small and large businesses alike scrambling to hire, and strong economic signals arriving on consumer confidence and retail sales, expectations for April employment growth revolved around 1 million potential new hires. Those expectations were crushed when the Bureau of Labor Statistics reported just 266,000 jobs created, not even a kissing cousin of 1 million.

Reactions to the weak numbers were most pronounced from Biden administration officials, who, like Adam Smith’s “man of systems,” see the economy as a chessboard where benevolent leaders move pieces only to learn that “every single piece has a principle of motion of its own, altogether different from that which the legislature might [choose] to impress upon it.” Those who think stimulus and regulations reliably generate prosperity best be forewarned. Sometimes we expect 1 million and get 266,000 instead.

The shortfall puts stimulus back in the spotlight. Why didn’t the crucial January stimulus work as promised? Should we open the purse wider? What about President Joe Biden’s newly unveiled American Jobs Plan, American Families Plan, and the seemingly all-encompassing infrastructure plan? Should we believe they’ll work?

Biden, a gifted politician who knows how to make lemonade when handed a lemon, only pushed harder: “Some critics said we didn’t need the American Rescue Plan, that this economy would just heal itself. Today’s report just underscores, in my view, how vital the actions we are taking are. Our efforts are starting to work, but the climb is steep, and we have a long way to go.”

For now, the administration keeps hold of the chessmen.

It should be pointed out that the creation of 266,000 new jobs is not actually that bad. The report provides evidence of a command economy transitioning back to a more market-driven one that is scrambling for footing. The monthly average gain for new jobs over the last seven months, including April, is 355,000, with March’s 770,000 the largest. There have not been a million jobs added since August.

With some states relaxing restrictions on gatherings and others still tightening, auto companies shutting down due to unpredictable chip shortages, and even cat food in short supply due to pandemic surges in pet ownership, a COVID-19 command economy that lacks enough market-determined price signals to guide it was always going to be difficult to predict.

While there is little chance the economy will be allowed to completely self-heal, it’s trying. Think about the government-shuttered sectors now beginning to reopen. Employment in the hard-hit leisure and hospitality sector saw a 330,000-job increase. With restaurants and bars opening for in-place service, fewer meal delivery people are needed. Employment in couriers and messengers fell by 77,000. And with permanent hires rising, not as many temps were needed. The number employed in that category fell by 111,000, and at 296,000 is lower than in February 2020.

Where we are on the path to pre-pandemic prosperity relates directly to the workforce. As shown in the below chart built using Federal Reserve data, April’s count of 161 million workers puts us short by more than 3 million. The workforce is expanding, but with a way to go.

With regulatory switches turning off and on, May’s employment number may pop through the roof, but we are still left with a serious question: Are people incentivized to work? Even though Secretary of Labor Marty Walsh argues that the federal unemployment supplement does not contribute to a lower willingness to reenter the workforce, there is abounding anecdotal evidence that the $300 a week addition to state unemployment pay dampens worker enthusiasm.

In response, governors in Arkansas, Montana, and South Carolina have taken steps to cancel their states’ participation in the federal supplement program. The U.S. Chamber of Commerce is calling for Congress to close out the federal supplement.

Folks in the real world, like my restaurateur neighbors, offer a common concern: Business is now booming, but their former employees are not interested in returning. The situation is so prevalent nationwide that an April National Federation of Independent Business report indicated that 44 percent of their business-owning members have job openings that cannot be filled—22 percentage points higher than the 48-year average.

When state and federal unemployment benefits are combined, furloughed workers across the states, on average, can earn $15 per hour in unemployment compensation until September without lifting a finger. Indeed, one of my close relatives was furloughed in 2020 and began getting $840 a week in compensation—more than she’d ever earned in her young work life. She was not all that excited when her shop reopened.

As much as unemployment compensation can explain a slowly recovering workforce, there is far more to the incentive issue. Let’s return to past-and-future stimulus payments in whatever form. Now revisit the chart and think about the 3 million people no longer in the workforce. Why exactly should we be surprised? If federal programs provide the means to earn a living—or perhaps in some cases to lay aside savings or provide support to loved ones or charity—substituting leisure time for work makes perfect sense.

It’s possible to make too much of one jobs report, but April’s unexpected weakness provides an opportunity to reconsider the frantic federal efforts to cushion the shock that has hit us, and see if some aspects of the government intervention are working against a return to higher employment and earned income.

Given all of this, the American economy is performing rather well. Yes, $4 trillion in stimulus matters. And yes, more spending, often in the name of creating jobs, will add employment to directly targeted industries and communities. But while one government foot is on the gas, the other is hitting the brakes. Like it or not, we will one day have to pay off the loans that are funding our temporary prosperity. Doing so will require acknowledging that there is still no such thing as unearned prosperity.

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Cancelling Citations

Last October, I wrote about a controversial Bluebook proposal: Any case that involves slavery would require a parenthetical disclaimer. For example “(enslaved party)” or “(enslaved person at issue).” So far, this change has not come to pass. But with the hard-left turn of law reviews, I doubt there is enough resistance to block this change. The upshot of this policy will be to simply cancel certain citations. Authors will not want to be seen as promoting slavery-based jurisprudence. So those cases will simply fall into desuetude.

This weaponization of footnotes will not be limited to slavery. Journals will continue to impose more control over scholarship to pursue inclusion. Professor Brian Leiter writes about a referee report from a philosophy journal. The “very first comment” criticized the author for not citing diverse authors.

1.      One of the first things I noticed is that not a single female author is being referenced or cited in this piece. Given that this is generally seen as problematic, I urge the author to make an effort to engage with some women scholars, such as [female professor X], who I believe wrote on [the topic of the essay] fairly recently.

Leiter offers a powerful rejoinder to this comment:

[R]acial or demographic equity in citations is not a value in scholarship; truth and knowledge are the only values. If past racism has resulted in neglect of scholars who can contribute to truth and knowledge in a particular domain, then the demand should be to name those scholars so that they can be studied. But equity-qua–demographic-diversity per se is not a scholarly value. It has a stronger claim to be a value in pedagogy….

Well said. Diversity is an important value. But it is not the most important value. It should not predominate over all aspects of scholarly inquiry. The obsession with inclusion will serve only to exclude thoughts out of the woke zeitgeist. This current trend threatens to stifle academy inquiry in dangerous ways.

So far, I have not had a law review editor tell me to add citations to certain authors to promote some type of gender or racial diversity. If I received such advice, I would decide if the citation was relevant. If yes, I would consider adding it. But if the sole purpose for adding the citation would be to check diversity boxes, I would resist the change.

There is also the converse problem. What if I cite a controversial author, but the journal asks me to remove it. There are many reasons why an author may fall on a “cancel” list. Perhaps the author took the wrong view on some social issue. Or maybe the author associated with the wrong people. Or maybe the author deigned to challenge some orthodoxy. Whatever. I would also resist any effort to remove a citation based entirely on the identity of the author.

Of course, I don’t care to play these law review games. Other authors may not have that luxury. Imagine a journal makes an offer contingent on diversifying the footnotes. In other words, “We will publish this article if you include more inclusive footnotes.” Would you decline that offer?

In the years ahead, I think it will become very difficult for conservative authors to publish in law reviews. Peer-reviewed journals are not much better. Look no further than the example Professor Leiter cited. The road ahead will be rocky.

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Professor Suspended After Denying Canada Is A Racist Country And Criticizing BLM

Professor Suspended After Denying Canada Is A Racist Country And Criticizing BLM

Authored by Jonathan Turley,

Mount Allison University Professor Rima Azar feels a strong identification to Canada. Born in Lebanon during a civil war, Azar developed a lasting appreciation for the freedoms of Canada, particularly free speech. An accomplished academic in the field of health psychology, she often discusses her views of political and social issues on her  personal blog Bambi’s Afkar from her unique perspective. However, she recently ran afoul of an individual who spotted comments denying that Canada is a racist country and criticizing Black Lives Matter as an organization.  The individual compiled an array of what was viewed to be objectionable positions and triggered a movement to have Azar fired. In a direct attack on free speech and academic freedom, the University then suspended Azar without pay.

According to  the CBC, after months of investigation, Azar will not have to go through “equity, diversity and inclusion training” for her expressing such thoughts on a personal blog. The grounds? Azar was cited by students as “denying systemic racism,” “talking about BIPOC students in unkind ways” and “labelling Black Lives Matter a radical group,” among other transgressions. These improper thoughts include stating “[New Brunswick] is NOT racist. Canada is NOT racist. We do not have ‘systemic’ racism or ‘systemic’ discrimination. We just have systemic naivety because we are a young country and because we want to save the world.”

That is a statement that should generate considerable debate and passion on a college campus. That is what higher education once valued in fostering a diversity of viewpoints and perspectives. The response of the students of Mount Allison was to seek to silence and punish Azar rather than respond to her views.  To the shock of some academics, like Mark Mercer, head of the Society for Academic Freedom and Scholarship, the University caved to the demands and suspended Azar. The Society for Academic Freedom and Scholarship has also supported Azar against her university.

The targeting of Azar began when she disagreed with local activist Husoni Raymond who denounced New Brunswick as “systemically racist.” Raymond stated in response that it is “[d]isappointing to see a professor who’s still ignorant to what racism is and will be using her power within the institution to uphold racists ideologies. Racism IS in Canada. Racism IS in NB.”

[Notably, Azar was not arguing that there was no racism in Canada but that the country is not “systematically racist,” a point of distinction that has produced other controversies in academia].

Azar then responded to Raymond by saying:

“NB is NOT racist. Canada is NOT racist. We do not have ‘systemic’ racism or ‘systemic’ discrimination. We just have systemic naivety because we are a young country and because we want to save the world.

Oh, one quick question to Mr. Husoni Raymond: Upon your graduation from St. Thomas University, you have been named the 2020 recipient of the Tom McCann Memorial Trophy for your ‘strong leadership and character’ … If NB is as racist as you are claiming, would one of its prestigious universities be honouring you like that?”

Azar also disagreed with statements that Canada remains a “patriarchy” afflicted by rape culture. She suggested that people like her from the Middle East have seen “real rape culture” and perhaps readers might want to consider “ISIS practices in Syria.” She also said that BLM is a radical organization, which is a view shared by many and contested by many others.

We recently discussed the case of a police officer who was fired for calling BLM members “terrorists” on a personal postings. Twitter recently censored criticism of a BLM founder and we have been discussing the targeting of professors who voice dissenting opinions about the Black Lives Matter movement, police shootings, or aspects of the protests around the country from the University of Chicago to Cornell to Harvard to other schools. Students have also been sanctioned for criticism BLM and anti-police views at various colleges. Even a high school principal was fired for stating that “all lives matter.”  Each of these controversies raise concerns over the countervailing statements against police or Republicans or other groups.

I am admittedly a free speech dinosaur.  I believe in largely unfettered free speech, particularly for statements made off campus or outside of a classroom. I have defended faculty who have made similarly disturbing comments “detonating white people,” denouncing policecalling for Republicans to suffer,  strangling police officerscelebrating the death of conservativescalling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. We previously wrote about academic freedom issues at University of Rhode Island due to its Director of Graduate Studies of History Erik Loomis, who has defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence.

My greatest concern is the conflicted positions on free speech that emerge from these cases. Universities generally do not take similar actions when faculty or students denounce other organizations like the Republican Party or the NRA as terrorists or murderers. They do not take action against those who write racist attacks on white people or sexist attacks on males, as discussed above. The result is not just the sanctioning of faculty for exercising free speech but the biased application of such measures based on the content of such speech.

In a memo sent to faculty, staff and students on Tuesday, Mount Allison’s communications director Robert Hiscock said that “[o]ver the past two months, an independent investigator has reviewed complaints from students alleging discriminatory conduct, stemming from blog posts and student interactions.” However, he said that the findings remain confidential and cannot be discussed. Azar should consider sending a letter asking for the full report to be made public and waiving the right to confidentiality. Otherwise, her reputation will continue to be attacked without any ability to address the allegations in public fully and transparently. For example, there is an allegation that Azar improperly referred to particular students by name in her criticism. However, we do not know if those students previously made their names public in exchanges with or criticism of Azar. There is a major difference between spontaneously criticizing a student who has not spoken publicly and responding to a student who has elected to participate in a public debate by name.

Azar now has a GoFundMe campaign to assist her in the coming legal challenge.

Tyler Durden
Mon, 05/10/2021 – 13:21

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Cancelling Citations

Last October, I wrote about a controversial Bluebook proposal: Any case that involves slavery would require a parenthetical disclaimer. For example “(enslaved party)” or “(enslaved person at issue).” So far, this change has not come to pass. But with the hard-left turn of law reviews, I doubt there is enough resistance to block this change. The upshot of this policy will be to simply cancel certain citations. Authors will not want to be seen as promoting slavery-based jurisprudence. So those cases will simply fall into desuetude.

This weaponization of footnotes will not be limited to slavery. Journals will continue to impose more control over scholarship to pursue inclusion. Professor Brian Leiter writes about a referee report from a philosophy journal. The “very first comment” criticized the author for not citing diverse authors.

1.      One of the first things I noticed is that not a single female author is being referenced or cited in this piece. Given that this is generally seen as problematic, I urge the author to make an effort to engage with some women scholars, such as [female professor X], who I believe wrote on [the topic of the essay] fairly recently.

Leiter offers a powerful rejoinder to this comment:

[R]acial or demographic equity in citations is not a value in scholarship; truth and knowledge are the only values. If past racism has resulted in neglect of scholars who can contribute to truth and knowledge in a particular domain, then the demand should be to name those scholars so that they can be studied. But equity-qua–demographic-diversity per se is not a scholarly value. It has a stronger claim to be a value in pedagogy….

Well said. Diversity is an important value. But it is not the most important value. It should not predominate over all aspects of scholarly inquiry. The obsession with inclusion will serve only to exclude thoughts out of the woke zeitgeist. This current trend threatens to stifle academy inquiry in dangerous ways.

So far, I have not had a law review editor tell me to add citations to certain authors to promote some type of gender or racial diversity. If I received such advice, I would decide if the citation was relevant. If yes, I would consider adding it. But if the sole purpose for adding the citation would be to check diversity boxes, I would resist the change.

There is also the converse problem. What if I cite a controversial author, but the journal asks me to remove it. There are many reasons why an author may fall on a “cancel” list. Perhaps the author took the wrong view on some social issue. Or maybe the author associated with the wrong people. Or maybe the author deigned to challenge some orthodoxy. Whatever. I would also resist any effort to remove a citation based entirely on the identity of the author.

Of course, I don’t care to play these law review games. Other authors may not have that luxury. Imagine a journal makes an offer contingent on diversifying the footnotes. In other words, “We will publish this article if you include more inclusive footnotes.” Would you decline that offer?

In the years ahead, I think it will become very difficult for conservative authors to publish in law reviews. Peer-reviewed journals are not much better. Look no further than the example Professor Leiter cited. The road ahead will be rocky.

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Jessica Alba’s Honest Co. Has Crashed 30% Since Its IPO 3 Days Ago

Jessica Alba’s Honest Co. Has Crashed 30% Since Its IPO 3 Days Ago

From its highs at $23.88 on its IPO day, Jessica Alba’s Honest Co. has plunged over 30% to $16.52 this morning…

On Wednesday, everyone was excited as the stock which IPO’d at $16, surged over 40% to its highs (after opening at $21.22)…

But now, down over 30% from those highs, the stock is nearing its IPO price…

Alba co-founded the direct-to-consumer brand in 2011 and now serves as chief creative officer.

Alba is not alone, IPOs (and SPACs) have been a shitshow since the February peak exuberance levels…

As Bloomberg notes, there have been hints that the pandemic boom is starting to subside for packaged goods, with some peers reporting higher costs and uneven demand trends recently. Data and research company New Constructs called Honest “overvalued” and said the stock is “worth no more than $7” a share.

Tyler Durden
Mon, 05/10/2021 – 13:01

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Colonial Says Pipeline Segments Being “Brought Back Online”, Goal Is For Service To Be “Substantially Restored” By End Of Week

Colonial Says Pipeline Segments Being “Brought Back Online”, Goal Is For Service To Be “Substantially Restored” By End Of Week

With fears growing that the Colonial shutdown could last for much longer than initially expected, with some analysts warning that a 5-day shutdown could lead to sharply higher prices, and the Biden admin activating a state of emergency to make sure that critical gasoline supplies continue to flow up the eastern seaboard, moments ago Colonial Pipeline issued an update on its attempts to restore operations, saying that “segments of our pipeline are being brought back online in a stepwise fashion” and that the goal now is to “substantially” restore operational service by the end of the week.

Just out from the company:

Monday, May 10, 12:25 p.m.

Colonial Pipeline continues to dedicate vast resources to restoring pipeline operations quickly and safely. Segments of our pipeline are being brought back online in a stepwise fashion, in compliance with relevant federal regulations and in close consultation with the Department of Energy, which is leading and coordinating the Federal Government’s response.

Restoring our network to normal operations is a process that requires the diligent remediation of our systems, and this takes time. In response to the cybersecurity attack on our system, we proactively took certain systems offline to contain the threat, which temporarily halted all pipeline operations, and affected some of our IT systems. To restore service, we must work to ensure that each of these systems can be brought back online safely.

While this situation remains fluid and continues to evolve, the Colonial operations team is executing a plan that involves an incremental process that will facilitate a return to service in a phased approach. This plan is based on a number of factors with safety and compliance driving our operational decisions, and the goal of substantially restoring operational service by the end of the week. The Company will provide updates as restoration efforts progress.

We continue to evaluate product inventory in storage tanks at our facilities and others along our system and are working with our shippers to move this product to terminals for local delivery. Actions taken by the Federal Government to issue a temporary hours of service exemption for motor carriers and drivers transporting refined products across Colonial’s footprint should help alleviate local supply disruptions and we thank our government partners for their assistance in resolving this matter.

Our primary focus continues to be the safe and efficient restoration of service to our pipeline system, while minimizing disruption to our customers and all those who rely on Colonial Pipeline. We appreciate the patience of the traveling public and the support we have received from the Federal Government and our peers throughout the industry.

Tyler Durden
Mon, 05/10/2021 – 12:42

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Biden Rolls Back Trump Proposal To Limit Work Permits For Immigrants Ordered Deported

Biden Rolls Back Trump Proposal To Limit Work Permits For Immigrants Ordered Deported

Authored by Isabel van Brugen via The Epoch Times,

The Biden administration is rolling back an immigration policy sought by former President Donald Trump that would have limited work permits for immigrants with final deportation orders.

Trump on Nov. 19, 2020 proposed that the Department of Homeland Security (DHS) revise its regulations regarding employment authorization for immigrants who have a final order of removal from the country by a federal judge, and are released from DHS custody on an order of supervision.

On Monday, DHS Secretary Alejandro Mayorkas announced that President Joe Biden’s administration will be withdrawing the proposal after reviewing 302 public comments the department received during a 30-day period.

“Nearly 98 percent of commenters opposed the proposed rule with several commenters specifically requesting that DHS withdraw the NPRM [Notice of Proposed Rulemaking],” Mayorkas said, noting that less than two percent of commenters expressed support for the proposal.

Those who backed the proposal supported it because they believed it would deter illegal immigration and protect U.S. workers, Mayorkas wrote.

Commenters opposed to the rule were concerned about the immigrants’ ability to support their families and the impact it would have on their potential employers.

The rule “would impose exorbitant costs and burdens on U.S. employers related to labor turnover,” the DHS said.

“DHS believes that continuing to provide employment authorization to individuals who have final order of removal and are released from DHS custody on an order of a supervision is consistent with this administration’s values and priorities on immigration enforcement,” Mayorkas said in justifying the withdrawal.

He added, “It will allow individuals who do not fall within the administration’s enforcement priorities and who are still in the United States to continue to qualify for employment authorization, to legally work, remain self-sufficient, and support their families, which in many instances include U.S. citizen children.”

Since taking office, Biden has issued a number of orders rescinding Trump-era immigration rules, including suspending the U.S.-Mexico border wall construction, the “remain in Mexico” policy, and dozens more executive actions. According to an analysis by the Migration Policy Institute, Biden unleashed more than 90 executive actions during his first 100 days in office.

Jessica Vaughan of the Center for Immigration Studies, told Breitbart News that the latest move is “a de facto amnesty” for illegal immigrants.

“This is yet another common sense Trump reform that is being reversed,” Vaughan told the news outlet. “Most Americans would be astounded to hear that in 2019 the government issued more than 25,000 work permits to people who have been ordered removed by an immigration judge. These are often criminals who can’t be deported because their home country refuses to take them back.”

“So, we just let them stay, with benefits like a work permit. The Trump administration finally got around to stopping this practice, but not fast enough to keep it from being undone,” Vaughan added.

“We can expect the Biden administration to use the work permit authority to the maximum extent possible, because it’s a de facto amnesty that is easier than trying to get an amnesty bill through Congress.”

Republicans have blamed Biden’s messaging on immigration as well as a rollback of some Trump-era policies for the surge of illegal immigration and crowding at border facilities.

In March, immigration agents apprehended over 172,000 individuals seeking to illegally enter the United States. According to the latest report by U.S. Customs and Border Protection, more than 351,800 encounters were made in the first three months of 2021, compared to 107,700 during the same period in 2020.

The Biden administration has blamed the influx of illegal immigrants on seasonal factors and the crowding at facilities on a “broken” immigration and asylum system inherited from the Trump administration.

Tyler Durden
Mon, 05/10/2021 – 12:40

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Pre-Writing Justice Breyer’s Obituary

On April 9, 2010, Justice Stevens announced his retirement. And on April 30, 2009, Justice Souter announced his retirement. At this point, it is safe to say that the reports of Justice Breyer’s retirement are greatly exaggerated. He’s not stepping down–this year, at least. This timing has not been not lost on Erwin Chemerinsky and other prominent progressives. They are imploring Justice Breyer to avoid RBG’s mistake, and step down ASAP. I suspect these moves will inevitably backfire. There is a constant drumbeat that Justice Breyer is no longer needed, and a younger person can do the job just as well, if not better. (I suspect the White House is dangling KBJ, Breyer’s former clerk, the same way Kavanaugh and Kethledge were used as Kennedy bait). Well, Justice Breyer will prove them wrong–for some period of time, at least. Eventually, all good things must come to an end. All men are mortal.

I recently had a surreal experience. A reporter asked to interview me. She was pre-writing Justice Breyer’s obituary. She wanted to have an updated package ready to go once he passed. The rule were strict. The reporter instructed me to only speak of Justice Breyer in the past tense. I had to talk about his legacy without regard to what he still may accomplish. I had to anticipate how people would react if he died with a divided White House and Senate. And so on.

I’ve long held Justice Breyer in a very high regard. (Here, I will use the present tense). He is the most moderate Democratic appointment in a generation. His obsession with democracy tempers almost all aspects of his jurisprudence. His rulings on affirmative action, the Free Exercise Clause, the Establishment Clause, and the Separation of Powers, always reflect an attempt to achieve balance. He brings the Court to the middle in ways that are often invisible to the public.

Indeed, I think Justice Breyer has quietly pulled the right flank of the Court to the center. I often give Justice Kagan a lot of credit here, but Justice Breyer is an effective negotiating partner. Justice Breyer was probably responsible for brokering the Chief’s saving construction in NFIB–the most significant act of moderation in decades. If Justice Breyer were to be replaced by someone far to his left, that moderation may vanish. It is unclear if KBJ could pull Roberts and Kavanaugh to the center effectively. Replacing Justice Breyer with a more progressive member could yield an even-more conservative court. Cases that went 5-4 squishy-middle will now go 6-3 hard-right. Justice Kagan cannot do everything on her own.

From 1994 through 2005, the Court stayed remarkably stable. Justice Breyer was forever the Junior Justice. Now he is the oldest Justice. And we have seen significant turnover. Since 2005, seven new members have been added to the court. We’ve had three new appointees in the last four years. I would appreciate a summer without a confirmation hearing.

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