Tag: hit&run

Trump’s Visa Wall Against Foreign Students Is Making Other Countries Great Again

A company that spurned talent it badly needed couldn’t thrive. The same is true for a country.

But that isn’t stopping the Trump administration from blithely driving foreign students into the open arms of other countries with its ill-advised immigration policies.

For three years in a row, the number of new foreign students enrolling in American universities has fallen. In the 2015-16 academic year, 300,743 new foreign students enrolled. That number dropped to 269,383 in 2018–19, a decline of 10.4 percent as per the data of Open Doors, the Institute of International Education’s (IIE) annual report that tracks university enrollments. Nor is the situation likely to improve in the academic year currently underway given that a snapshot survey of 500 universities by the IIE this fall found declining enrollment—although full stats won’t be available until later in 2020.

When enrollments initially started plummeting, many people blamed external factors like better educational opportunities at home or Saudi Arabia’s decision to yank government scholarships from Saudi students studying abroad rather than this administration’s anti-immigration agenda. While other things might have had an effect on the margin, if they were the main cause, then other countries would be experiencing a decline too. The opposite is the case.

National Foundation for American Policy’s Stuart Anderson points out that Canada has been attracting a record number of international students in recent years. In 2017, it experienced a 20 percent spike and then another 16 percent the following year, a phenomenon that Canadians call the “Trump bump.” Meanwhile, Australia experienced a whopping 47 percent increase in new foreign students between 2015 and 2018.

In particular, America is losing Chinese students while Australia is gaining them. One likely reason is that Trump has called them all spies (an absurd accusation given that that nine out of 10 would prefer to stay on and work in America rather than return to the Communist dictatorship) and threatened to ban them from the country in a naked bid to force Beijing to succumb to his trade demands. Trump didn’t make good on that threat. However, since 2018 the State Department has been capping the visa stay of Chinese students in sensitive fields to one year rather than allowing them to stay for the maximum time allowed. This not only made Chinese students feel unwelcome in the United States but also perhaps made it more precarious for them to pursue an education here lest they lose their visas before finishing their program.

In addition, his travel ban has subjected foreign students from Iran and various Muslim countries to extreme vetting.

He has also proposed rules that would make it easier to brand foreign students as being “unlawfully present” and to ban them from the country for 10 years. The courts have put this rule on hold for now but the uncertainty can hardly make American universities attractive.

Trump has also doubled down on sting operations to crack down on visa fraud. Last year Immigration and Customs Enforcement (ICE) arrested 250 foreign students, mostly from India, whom it lured into the University of Farmington, a fake university that it set up in metro Detroit. For tuition fees much lower than normal, this university handed these students transcripts to satisfy the terms of their visas and, more importantly, obtain CPT (Curricular Practical Training) status. This status lets the foreign students sign up for a paid internship off-campus and helps offset their steep tuition costs, a tempting deal because it enables them to work for more than 20 hours and get off-campus jobs. Many foreign students quit legitimate universities to join this fake one only to get caught in ICE’s dragnet.

But it’s not just draconian enforcement tactics that are turning away foreign students. The administration’s immigration policies are also making an American education an unattractive value proposition compared to other countries.

Trump is doing everything in his power to make it more difficult for foreign students to work in America after they graduate, making the high cost of an American education a bad investment. Right now, international students in highly-coveted STEM fields can obtain something called the Optional Practical Training visa to work in the country for 36 months after graduation. This allows them to recover some of their tuition costs before returning home. Trump is proposing rules to cut this back dramatically.

Likewise, his administration is also making it more difficult for foreign techies to work in the country long-term by rejecting new H-1B visa applications at a historically high rate. And he is making it much more difficult for those who have these visas to renew them.

This is the exact opposite of what Sen. Mitt Romney (R–Utah) said the country should be doing when he ran for the presidency in 2012. He had promised to staple green cards—not just H-1Bs—to the diplomas of foreign graduates, especially in STEM fields, because it made no sense for America to lose American-trained talent to other countries. Instead, it is Canada that is running with Romney’s suggestion. It is handing foreign graduates from Canadian universities many additional points when they apply for permanent residency so that they just stay in Canada rather than return to their native countries.

Turning away foreign students is particularly stupid—not only because we need their skills but also their tuition dollars. Over 66 percent of them, especially undergraduates, pay top dollars for their education from out-of-pocket or through outside sources, allowing universities to subsidize tuition costs for American students. Many international graduate students, meanwhile, provide teaching and research services in exchange for a tuition reprieve, especially in STEM fields, something that allows universities to offer a more cost-effective education than if they had to hire faculty for the same jobs.

Furthermore, foreign students contribute $37 billion to the American economy and create or support 450,000 jobs, according to NAFSA: Association of International Educators, an outfit that promotes the professional development of American college officials. Indeed, without them, the shortage of Americans in STEM fields would become even more acute because there wouldn’t be enough people to train Americans, generating a downward spiral of STEM scarcity.

But the most vital contributions of international students are intangible. Had it not been for them, America may not have spearheaded the information technology revolution. That’s because 57 percent of Silicon Valley’s STEM workers were born outside the country and many of them came to the United States as students and stayed on. Many iconic IT companies such as Microsoft and Google are currently being headed by foreigners who came to America as graduate students.

Instead of draining the swamp, Trump is draining talent from America that other countries are eagerly sucking up. This is a formula for making them great, not America.

A version of this column originally appeared in The Week.

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NYPD Officers Are Warned That Parking Violation Crackdowns Are Coming

An internal New York Police Department (NYPD) email is warning officers not to use their police parking placards to park illegally.

Some NYPD officers use their placards as a free parking pass in areas where the rules clearly dictate the opposite. While parking in those areas would earn a civilian a ticket or a parking boot, placard abuse by the NYPD is pervasive enough that an entire Twitter account is dedicated to documenting violators. Tweets show NYPD officers parked in bicycle lanes, in bus lanes, and in fire hydrant zones in non-emergency situations.

The New York City Council has found nearly 9,000 placard abuse complaints since May 2017. More than 5,000 of those have resulted in no action taken against the violators. Fewer than 800 have led to a ticket.

In November, the council passed a set of bills aimed at combating placard abuse. Before this, parking violators got away with their actions because fellow officers frequently failed to enforce the law. When officers did try to apply the law equally, they sometimes faced retaliation—for example, when a traffic agent was suspended for a month without pay after ticketing the NYPD chief of transportation.

Enforcement of the new laws is supposed to begin today. The New York Daily News has acquired an internal NYPD email warning officers about the crackdown. “Guys please share with other officers [especially] if they are doing paid detail or live in the city. Looks like it’s our time again to get beat up in the Papers,” the email said.

The email cautioned that units have been tasked with identifying violators and documenting the offending officer’s vehicle, plates, and placard for the New York City Department of Investigation. Any violator is supposed to receive not just a ticket for the parking violation but a ticket for misusing the placard.

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Was there a Nondelegation at the Founding?

Justice Gorsuch’s Gundy dissent urged the Supreme Court to reconsider the nondelegation doctrine. Justice Alito’s concurrence in that case also expressed a willingness to take a second look at this long moribund principle. And more recently, in Paul v. U.S., Justice Kavanaugh signaled his agreement with Justice Gorsuch. By my count, there are now five Justices willing to rekindle the nondelegation doctrine. Indeed, I’ve wrote an amicus brief urging the Court to use the DACA case as an appropriate vehicle.

But is the nondelegation doctrine correct as an original matter? Julian Davis Mortenson and Nick Bagley wrote new article titled “Delegation at the Founding.” They contend that the nondelegation doctrine was not part of the original understanding of the Constitution. Here is the abstract:

This article refutes the claim that the nondelegation doctrine was part of the original constitutional understanding. As a matter of theory, the founding generation saw nothing untoward about delegating the authority to make rules so long as Congress did not irrevocably alienate its power to legislate. Any particular use of such delegated authority could validly be characterized as the exercise of either executive or legislative power, depending on the relationships a speaker wished to emphasize. Either way, there was no basis to claim that the Constitution prohibited administrative rulemaking. As a matter of practice, the early federal Congresses adopted dozens of laws that broadly empowered executive and judicial actors to adopt binding rules of conduct for private parties on some of the most consequential policy questions of the era. Yet the people who drafted and debated the Constitution virtually never raised objections to delegation as such, even as they feuded bitterly over many other questions of constitutional meaning.

Ilan Wurman wrote a reply at the Yale JREG blog. He agrees with some of Mortenson and Bagley’s claims, but draws different conclusions from the statutes passed by the First Congress. Here is the introduction:

At the outset, it’s important to establish correctly the existing originalist claims. The standard originalist position is that there are certain kinds of things that Congress must do and the executive (or judicial) branch may never do, namely the formulation of rules regulating private conduct, i.e. telling private people (as opposed to government officials) what they can and can’t do or altering their rights or obligations. Yet Mortenson and Bagley often describe the originalist position as being that any “rulemaking” is an exercise of legislative power that cannot be delegated. I know of no originalist who actually holds such a view, and I encourage Mortenson and Bagley to remove the several characterizations to the contrary. (For example, p. 21: “First, the critics have argued that rulemaking is an exercise of legislative power that may not be delegated by the legislature. Second, they insist that rulemaking can’t qualify as an exercise of executive power, which is limited to the particularized application of existing rules.”)

The paper’s central problems, however, relate to its interpretation of the evidence of “what the Founders said” and “what the Founders did.” This post challenges the paper’s interpretation of “what the Founders said” on two counts: their understanding of nonexclusive powers, and the distinction between delegation and alienation. It then argues that the paper’s evidence of “what the Founders did” does not prove what Mortenson and Bagley think it does. Their evidence from the First Congress does, I think, establish that the modern originalist “private conducts/private rights” nondelegation test might have to be modified—and here their paper contributes the most to the scholarship and originalists must take its claims seriously. But the evidence does not prove there was no nondelegation doctrine at all.

I have only had a chance to skim Mortenson and Bagley’s thorough 108-page article. I hope to have a more detailed response in due course.

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Divided Appeals Panel Slaps Federal Judge for Allowing Jury Nullification Defense

It’s not news that most judges balk at the prospect of jury nullification—the right and power of juries to bring “not guilty” verdicts when defendants violate laws that jurors consider unjust or wrongly applied. It is news when judges take a high-profile slap at a colleague who endorsed jury nullification in his own courtroom. And it’s an even bigger deal when they barely assemble a majority to join in the public shaming.

That’s exactly what happened last month when a divided three-judge panel of the U.S. Second Circuit Court of Appeals rebuked U.S. District Judge Stefan Underhill, who presided over what he called “a shocking case” in his court “that calls for jury nullification.”

The prosecution that shocked Underhill was a dubious federal “child pornography” case growing out of a state statutory rape case. It was summarized by the feds themselves in a U.S. Attorney’s Office press release, which alleges that defendant Yehudi Manzano “sexually assaulted a 15-year-old female victim in Connecticut, video recorded the assault with his cell phone, and uploaded the video to his Google account.”

“The only people who ever saw it were the guy who made it, the girl who was in it, and the federal agents,” Norman Pattis, Manzano’s attorney, told me about the video.

How did the feds get jurisdiction in what would normally be a state criminal case?

The feds chose to pile on a questionable prosecution for acts already being addressed in the state courts. “Apparently, the mere fact that the recording equipment was manufactured outside Connecticut is sufficient to meet the interstate commerce requirement of the [child pornography] statute,” as Judge Underhill marveled.

You would think a federal judge would have learned by now that the mere invocation of “interstate commerce” is the legal equivalent of muttering “Beetlejuice” three times, causing federal lawyers in ill-fitting suits to materialize amidst clouds of sulfurous smoke.

And materialize they did, with high stakes for the defendant.

“The charge of production of child pornography carries a mandatory minimum term of imprisonment of 15 years and a maximum term of imprisonment of 30 years, and the charge of transportation of child pornography carries a mandatory minimum term of imprisonment of five years and a maximum term of imprisonment of 20 years,” the U.S. Attorney’s press release notes.

Such a sentence would be in addition to the one to 20 years in prison faced by Manzano for sexual assault in the second degree, a class B felony in Connecticut, for sex with a 15-year-old who was legally incapable of consenting to the relationship.

Manzano’s attorneys argued that the feds were overreaching and that their client should be allowed to inform the jury of the potential sentence and argue for jury nullification. Judge Underhill agreed.

“This is a shocking case,” Underhill wrote. “This is a case that calls for jury nullification. …  I am absolutely stunned that this case, with a 15‐year mandatory minimum, has been brought by the government. …  I am going to be allowed no discretion at sentencing to consider the seriousness of this conduct or the lack or seriousness of this conduct, and it is extremely unfortunate that the power of the government has been used in this way, to what end I’m not sure.”

Prosecutors promptly filed an emergency motion seeking a writ of mandamus—an order from a higher court that would bar Judge Underhill from permitting the defense to inform the jury of the potential sentence and to argue in favor of jury nullification.

Given the judicial system’s strong aversion to loosening the puppet strings judges and prosecutors routinely fasten on jurors, it’s no surprise that two of the three appeals court judges hearing the case sided with the prosecution.

“Our case law is clear: ‘it is not the proper role of courts to encourage nullification,'” Judge Richard J. Sullivan wrote in a ruling joined by Judge Denny Chin “As a practical matter, there is no meaningful difference between a court’s knowing failure to remove a juror intent on nullification, a court’s instruction to the jury that encourages nullification, and a court’s ruling that affirmatively permits counsel to argue nullification.”

The appeals court did not agree to bar Underhill from allowing sentencing information to be presented to the jury, since there are potentially grounds other than nullification that could justify its introduction.

More surprising is that the decision was close, with Judge Barrington D. Parker opposing writs of mandamus regarding both sentencing and jury nullification.

“An especially unsettling aspect of this case is that the record the prosecution presented to the District Court and to this Court is barren of anything that would explain, much less justify, the prosecutors’ decision to file the most serious child pornography charges available to them against a man who made a single video which no one else ever saw and which he then attempted to erase,” Judge Parker argued in his dissent.

“Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted,” Parker continued. “But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back. I believe that most conscientious jurists would have done the same. I have no difficulty concluding that Judge Underhill was right to do so. … I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.”

Those are strong words. But, since they’re on the losing side, Manzano won’t be allowed to argue in his defense in favor of jury nullification. His trial will feature jurors informed that they must abide by the federal government’s legal-contortionist interpretation of the law—though they may be told about the draconian potential sentences in the case.

But Judge Parker’s dissent, following Judge Underhill’s willingness to entertain jury nullification arguments in his court, have provided dramatic fodder for headlines. A public pissing match between federal prosecutors and judges features in news stories exposing the public to judges’ doubts about the wisdom and humanity of the criminal justice system.

An appeals court decision allowing Manzano to argue in favor of jury nullification would have been a better outcome in this case—short of the feds entirely leaving the matter to the state. But despite the loss, we’re getting an eyeful of how the system works, and how responsible jurors can bring otherwise-lacking judgment and mercy to courtrooms.

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Trump Wants to Target Iranian Cultural Sites, Says His Tweets Shall Serve as Notice to Congress

Should Iran retaliate for an American drone killing commander Qassem Soleimani last Friday, the U.S. will start targeting Iranian “cultural sites,” said President Donald Trump. “Iran has been nothing but problems for many years,” the president tweeted on January 4.

“Let this serve as a WARNING that if Iran strikes any Americans, or American assets, we have targeted 52 Iranian sites (representing the 52 American hostages taken by Iran many years ago), some at a very high level & important to Iran & the Iranian culture, and those targets, and Iran itself, WILL BE HIT VERY FAST AND VERY HARD.”

When asked about this comment, Trump again expressed an intent to go after cultural sites, saying: “They’re allowed to kill our people. They’re allowed to torture and maim our people. They’re allowed to use roadside bombs and blow up our people. And we’re not allowed to touch their cultural site? It doesn’t work that way.”

Destruction of cultural heritage sites and artifacts is opposed by the U.N. Security Council. The council—of which the U.S. is a permanent member—in 2015 condemned “the destruction of cultural heritage in Iraq and Syria … whether such destruction is incidental or deliberate, including targeted destruction of religious sites and objects.”

And condemning destruction of cultural sites and objects goes much further back than that. As the Los Angeles Times points out, the Hague Convention of 1907 said “all necessary steps must be taken” to spare “buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected.”

And the Geneva Convention states that “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.”

Acts such as these are considered by many to be a war crime, and a lot of U.S. media has been condemning them as such, as have some Democratic politicians. “Targeting civilians and cultural sites is what terrorists do. It’s a war crime,” tweeted Sen. Chris Murphy (D–Conn.).

“The President of the United States is threatening to commit war crimes on Twitter,” said Rep. Ilhan Omar (D–Minn.).

Trump also announced over the weekend that his tweets shall serve as official notice to Congress of his intent to engage in military action against Iran.

“These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner,” Trump tweeted on Sunday evening.

Rep. Justin Amash (I–Mich.) says all that needs to be said on this one:

But for the record, here’s how the House Foreign Affairs Committee responded:

Quippy principles from Democratic leaders ring hollow, however, when party members in Congress have repeatedly voted against measures to rein in presidential war powers or require more congressional oversight.

Trump’s dangerous Twitter tantrums come as Iranian people have been pouring out in mourning over Soleimani, (“for now, Iran is united—in anger at the United States,” says The New York Times) and the Iraqi parliament has voted the U.S. military out.

Owing to that last bit, Trump has started threatening Iraq again.

“If they do ask us to leave, if we don’t do it in a very friendly basis. We will charge them sanctions like they’ve never seen before ever. It’ll make Iranian sanctions look somewhat tame,” the president said.

Meanwhile, it hasn’t taken long for the administration’s justification for murdering Soleimani to start unraveling. Trump and company initially insisted that Soleimani’s death was necessary because he posed an “imminent” threat to American citizens and was planning an upcoming attack that would cost hundreds of U.S. lives. But a range of administration officials suggest that Trump’s political image was the only thing under imminent threat. The option of attacking Soleimani had been floating around as a potential (but not optimal) plan for months.

In other Iran developments, Eric Boehm reports:

The Pentagon has approved plans to send 3,000 more troops to the region. But the debate over the next steps must now shift to Congress, as the Constitution demands. Sen. Tim Kaine (D–Va.) has announced plans to introduce a war powers resolution in the Senate, forcing a debate over whether the U.S. should go to war with Iran or place limits on Trump’s ability to engage in hostilities.

On Sunday, House Speaker Nancy Pelosi (D–Calif.) announced a resolution similar to Kaine’s would be put forth in the House.

Also on Sunday, Iran announced that it would be pulling out of the 2015 nuclear deal that the Trump administration pulled the U.S. out of in 2018.

QUICK HITS

  • How Fox News learned to embrace the deep state again:

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  • “Fighting human trafficking” as empty corporate cause continues apace:

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Espinoza School Choice Case and Discrimination Against Religion

When I moderated a debate on Espinoza v. Montana Dep’t of Revenue, I had a question for one of the Institute for Justice lawyers who represents Ms. Espinoza (and others, including Linda Greenhouse, had asked the same question as well). Here’s the issue:

  1. A Montana school choice programs let parents use certain tax credits to pay for education at private schools, whether religious or secular.
  2. The Montana Supreme Court held that this violates a Montana Constitution provision, which bars the government from making “any direct or indirect appropriation or payment from any public fund … for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
  3. But rather than limiting the tax credit program to apply only to nonreligious private schools (which would have been much like what the Missouri government had done for the playground resurfacing grants in Trinity Lutheran Church v. Comer (2017)), the Montana court struck down the tax credit program altogether, as applied to secular schools as well as religious ones.
  4. The plaintiffs argue that this decision violates the Free Exercise Clause because it is religiously discriminatory.
  5. But, I asked, is it really religiously discriminatory, given that now all Montana private schools, religious and secular, are equally denied the tax credit?

The IJ people gave an answer there, and IJ’s David Hodges has kindly written it up for me to post:

In September, Linda Greenhouse of the New York Timesnoted something “odd” about Espinoza v. Montana Department of Revenue, a case that the Institute for Justice (IJ) will be arguing before the Supreme Court on January 22. Espinoza will determine whether the Montana Supreme Court was correct to shut down a school choice program that allowed parents to select religious schools as part of a generally available tax credit scholarship program. That court ruled that the program violated the state constitution’s prohibition on “indirect” funding of religious institutions.

What was odd to Greenhouse is IJ’s argument that a decision that prevented everyone—including the religious—from receiving a benefit could violate the religious neutrality principle of the First Amendment. After all, Greenhouse wrote, the Supreme Court in Palmer v. Thompson upheld a city’s decision to defy a swimming pool-integration order by closing the pool on the grounds that both the white and black residents of the town were equally deprived of a place to swim. The logic in Espinoza would seemingly follow: If a benefit is denied to everyone—black and white, religious and secular—then how can it discriminate against anyone? Put another way, so long as the effect is the same, how can the cause matter?

The answer lies in an Anatole France quote that the justices sometimes use to needle one another when they see a law as having an obvious pretext: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” For the Montana Supreme Court, the majestic equality of the law forbids both the religious and nonreligious to attend parochial school.

The underlying dynamic in Espinoza is not new to the Court. The desegregation era was replete with examples of cities justifying discrimination against African Americans by claiming the laws applied to everyone. For example, in Orleans Parish School Board v. Bush, the Court affirmed an injunction against Louisiana when it closed its public schools to avoid a desegregation mandate. In Griffin v. County School Board, the Court held that eliminating a public program to prevent the inclusion of a protected class is the same kind of unconstitutional discrimination as excluding that class in the first place. Finally, in Village of Arlington Heights v. Metro House Development Corporation, the Court explained that “[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision…judicial deference is no longer justified.”

Given this context, Palmer is an outlier. In Palmer, the Court wrote that it was unclear whether the pool was closed for discriminatory reasons or benign ones like economic considerations. Absent more compelling evidence, the Court did not want to assume motive.

In Espinoza, by contrast, the Montana Supreme Court explicitly struck down the program because it included religious options. Simply put, if there were no religious options, the program would stand, but since there were religious options, the program had to go. Also unlike Palmer, there was no ambiguity in the record about whether the program was ended for discriminatory or budgetary reasons. (And this is without even addressing the sordid national and state history of anti-Catholic animus behind the Montana constitutional provision at issue known as the Blaine Amendment.) Finally, even if there were no “bad motives,” the text of the state constitutional provision itself clashed with the federal Constitution by disqualifying educational options because of religion—and nothing more.

In any event, both the perspective of time and subsequent caselaw have cast doubt on “neutral” laws and provisions that, as in Palmer, only seem to disadvantage one type of party. As the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, a case that involved a state provision similar to that in Espinoza, excluding a party “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

In Espinoza, where the public benefit is for an individual, not a church, it would be an even greater constitutional injury to deny that benefit merely because it might be used at a religious school. As it was in matters of race, so too must it be in other consequential areas of constitutional law.

I’m on balance tentatively persuaded by this argument, but I’d be glad to also post a response, if someone is inclined to offer it.

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A New ABA Model Rule 8.5 to Promote Diversity and Inclusion?

David Douglas authored an essay in the ABA Journal, titled “The ethics argument for promoting equality in the profession.” He proposes a modification to ABA Model Rule 8.5.

The first portion of the rule would impose a duty on all attorneys to promote diversity and inclusion.

As a learned member of society with an ethical obligation to promote the ideal of equality for all members of society, every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.

The second portion of the rule is aspirational: lawyers should try to spend at least 20 hours a year to promote diversity and inclusion.

Every lawyer should aspire to devote at least 20 hours per year to efforts to eliminate bias and promote equality, diversity and inclusion in the legal profession. Examples of such efforts include but are not limited to: adopting measures to promote the identification, hiring and advancement of diverse lawyers and legal professionals; attending CLE and non-CLE programs concerning issues of discrimination, explicit and implicit bias, and diversity; and active participation in and financial support of organizations and associations dedicated to remedying bias and promoting equality, diversity and inclusion in the profession.

I have long criticized ABA Model Rule 8.4(g). It imposes an unconstitutional speech code for attorneys. In addition, Rule 8.4(g)’s comment creates a special carve-out for speech that promotes diversity and inclusion:

Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

This comment creates an unconstitutional form of viewpoint discrimination. Eugene Volokh and I discussed this comment in a letter submitted to the Iowa Supreme Court:

Here, the critical language is “conduct undertaken to promote,” which in this context obviously includes speech promoting “diversity and inclusion.” Yet, this provision explicitly exempts one perspective on a set of divisive issues—affirmative action, alleged systemic prejudice, implicit bias, and the like—while continuing to potentially punish as “harassment” those who promote the opposite perspective. That disparate treatment constitutes unconstitutional viewpoint discrimination.

Consider a debate hosted by a bar association about affirmative action. One speaker promotes racial preferences as a means to advance diversity. His speech would be entirely protected under the proposed amendments. Another speaker critiques racial preferences in ways that some people view as racially “offensive.” His speech would not be protected under the proposed amendments.

The proposed ABA Model Rule 8.5 would suffer the same problem as the comment from 8.4(g). The Rule adopts a specific philosophical viewpoint–promoting diversity and inclusion–and makes it the orthodoxy for attorneys. Under this proposed rule, those who do not adopt that philosophy will be violating a “duty” and “ethical obligation.” Those who choose not to attend certain CLE classes would not be disregarding an aspirational goal.

Scott Greenfield pithily encapsulates the problem with this proposed rule:

You want to be a hero to the cause? Go for it. I’m just a lawyer trying to save lives one at a time.

Not every attorney agrees that “every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession.” Far too many attorneys–especially academics–take this statement as an unassailable fact of life. It’s not.

Bar associations exist to promote and regulate the legal profession. They do not exist to promote specific ideologies. Indeed, they lack the power to promote ideologies. In my article, I discuss the limits on this authority:

As speech bears a weaker and weaker connection to the delivery of legal services, the bar’s justification in regulating it becomes less and less compelling. The bar lacks a sufficiently compelling interest to censor an attorney who makes a remark deemed “demeaning” at a CLE lecture, or makes a comment viewed as “derogatory” at the dinner table during a bar association gala. These are the sorts of problems that can be resolved by refusing to re-invite offending speakers—not by threatening to suspend or revoke a lawyer’s license. Here, the nexus between the bar’s mission to regulate the practice of law is far too attenuated to justify this incursion into constitutionally protected speech.

Bar associations should resist the urge to stray from their core functions. Not every lawyer wants to be a hero. Some simply want to be attorneys.

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The New Normal and the Prospects for a Post-Political Future

“When will things be normal again?”

In politics, this is a powerful wish and a commonly heard refrain. It’s the desire that propelled Donald Trump into the White House with a Make America Great Again cap perched atop his head. His campaign tapped into a longing for an imagined 20th century standard, when the United States was militarily, technologically, and commercially dominant abroad and relatively homogeneous at home.

Now Joe Biden is rallying voters against Trump using the same technique. Biden’s “no malarkey” campaign bus is powered by the fumes of goodwill he generated in his role as Barack Obama’s vice president. He is selling the pre-Trump normal, and plenty of Democratic primary voters seem to be buying.

One weird side effect of this strategy is that Biden is running a markedly conservative campaign in the literal sense of the word: He wants to go back, to conserve what we had under Obama. The contrast is stark with the socialists and progressives otherwise dominating the Democratic field. What if, the Biden campaign seductively asks, we could simply pretend the 45th presidency never happened?

The idea of a “return to normalcy” has worked before. Warren G. Harding ran for president under that banner exactly a century ago. He won despite being described by H.L. Mencken as a man “with the face of a moving-picture actor…and the intelligence of a respectable agricultural implement dealer” (and later, less generously, as “a downright moron”).

“America’s present need,” Harding declared, “is not heroics but healing; not nostrums but normalcy; not revolution but restoration; not agitation but adjustment; not surgery but serenity; not the dramatic but the dispassionate; not experiment but equipoise; not submergence in internationality but sustainment in triumphant nationality.”

Students of history will recall that his term ended not in equipoise but in a wave of scandal and an untimely death. I will leave you to draw your own conclusions about possible parallels for the centennial of those events.

Millennials and young Gen Xers actually use normal as a term of approbation. When I meet someone new, I’m offering a high compliment indeed if I say, “He seems really normal.” Perhaps as a result of my casual abuse of the word, even I—in a moment of frustration over the difficulty of staying on top of an erratic news cycle—have grumbled: “When will things be normal again?”

But I didn’t mean it. Because when it comes to politics, normal is terrible.

When things were normal—whether you benchmark to the Republican version or the Democratic version—politicians were still venal and governance shoddy. Americans were continually subjected to the depredations of the federal government in general and the president in particular. Normal was cronyist and authoritarian and profligate and petty. It was dominated by mushy compromise and zero-sum thinking. And the various tentacles of the state extended into every part of American life, from what we eat to what our kids learn in school to what we watch on TV.

Normal isn’t serenity and healing; it’s Teapot Dome. Going back to normal means going back to a time when many aspects of our political system were in dire need of reform.

When former Trump lawyer Michael Cohen testified before the House Oversight Committee, Rep. Elijah Cummings (D–Md.) said: “We have got to get back to normal.” But normal has always been scandalous and messy and dishonest. These hearings were just the latest in a long line of inquiries into politicians’ misbehavior.

Biden’s version of the lament is especially amnesiac, since it places the lost golden age a mere three years ago. If you are of voting age, you remember the Obama administration clearly. In these times of sustained high dudgeon, it can be easy to forget, but there was a lot of rather lofty dudgeon in those days too.

Donald Trump has shaken things up in Washington, just as he promised he would. But the result of that shakeup has not been, as many hoped, a demystification of the presidency, a draining of the swamp, or shift in public support away from centralization. It also has not been a return to American global hegemony, as others desired. Instead, there has been an increasing focus on the presidency, thanks in part to Trump’s personal insistence on live-tweeting his own administration.

His impeachment will, in the short run, make things more febrile in all the ways that people calling for normalcy lament. But as Gene Healy argues in this month’s cover story (page 18), we shouldn’t be too quick to dismiss impeachment and its ramifications as a tool for getting to a better status quo.

“If you elect me president, I promise you won’t have to think about me for 2 weeks at a time,” Democratic hopeful Michael Bennet tweeted in August. “I’ll do my job watching out for North Korea and ending this trade war. So you can go raise your kids and live your lives.”

Bennet was the 22nd entrant to the Democratic field and is an otherwise unremarkable moderate Colorado senator. (I had to double-check just now that he was, in fact, still in the race, so I guess he has kept his promise not to take up too much mental real estate.) Still, Bennet’s tweet offers an inkling of what our post-political future could look like—the thing people are actually longing for when they pine for “normal.”

Bennet told the L.A. Times editorial board that Biden’s project to Make America Normal Again was delusional. “The idea that the vice president says, ‘If we just get rid of Trump, then it will all go back to normal’ or the way it was, that doesn’t even reflect the history of the Obama administration. The last six years of that administration, we were paralyzed. We were immobilized.”

We don’t really want things to be normal. Normal wasn’t working. We want politics to function smoothly and without much attention. We want politicians to leave us alone.

As Bennet says, we should mostly be thinking about raising our kids and living our lives. When you’re not engaging with politics, and especially electoral politics, you are almost certainly spending your days making things better for other people in some tangible way. You’re making peanut butter sandwiches or buying groceries or sending an email someone was waiting for or showing up for your shift on time.

When politicians retire in shame or despair—a very normal phenomenon—they often say they are leaving politics to spend more time with their families.

At long last, a good idea.

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Brickbat: It’s Who You Know

The first person to qualify for an Inglewood, California, program that subsidizes the purchase of a first home just happened to be a city employee. In fact, Jazmine Covington just happened to work for the city’s Housing Authority when the guidelines for the program were being developed, though she left to work in another department late last year. Oh, and her mother is the acting city budget manager. But Housing Manager Roberto Chavez doesn’t want you thinking anything funny went on. “The City maintained strict compliance with the rules and regulations of the housing lottery at all times,” Chavez said in an email to a local paper. “There have been no violations of its policies nor special exceptions made for any entra