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The Equal Protection Issues in the DACA Case

The DACA decision primarily involved principles of administrative law. (I discussed those issues here and here). But the case also involved a challenge brought under the Equal Protection Component of the Fifth Amendment. (Remember, the Fifth Amendment lacks an Equal Protection Clause).

The Plaintiffs alleged that the rescission of DACA violated the Equal Protection component of the Fifth Amendment. Chief Justice Roberts described the claims:

Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump.

I discussed the issue way back when in a September 2017 WSJ op-ed (this litigation has been floating around for three-plus years):

That brings us to Mr. Schneiderman’s most unsettling claim: that Mr. Trump can’t revoke DACA because he is racist. “The President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency,” the states’ complaint argues, “even when such impulses are impermissible motives for directing governmental policy.”

The filing cites a litany of Mr. Trump’s offensive comments—his warning about Mexican “rapists”; his disparagement of Univision anchor Jorge Ramos; his reference in a presidential debate to “bad hombres”; his attacks on Judge Gonzalo Curiel—as well as his pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz.

Let’s start with Part IV of Roberts’s opinion, which was joined (behind the veil of a paper bag) by Justices Ginsburg, Breyer, and Chief Justice Kagan. Roberts rejected each of these three arguments.

None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

We saw a similar argument during the travel ban litigation: Any policy that prohibited entry of people from countries with links to terrorism would be predominantly Muslim.

Second, Roberts rejected the relevance of the history leading up to the rescission:

Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as recently as three months before the rescission,” referring to the June 2017 DAPA rescission memo, which stated that DACA would “remain in effect.” But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” It was a natural response to a newly identified problem

Not quite. The newly-identified problem was that Texas threatened to sue. Sessions thought DACA was illegal for years.

Finally, Roberts rejects the relevance of the President’s statements about Hispanics. Why? Because the relevant actors are the DHS Secretary and the Attorney General. More importantly, he dismissed the relevance of Trump’s statements under the Arlington Heights framework.

But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contemporary statements” probative of the decision at issue. Arlington Heights. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.

Alas, this analysis only had four votes. Therefore, we do not have a five-member majority that dismisses Trump’s statements, “remote in time and made in unrelated contexts.”

Justice Sotomayor could not don this paper bag. She wrote a partial dissent that focused on Trump’s statements. It was very similar to her Trump v. Hawaii dissent.

But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, (2018) (SOTOMAYOR, J., dissenting). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” This perception provides respondents with grounds to litigate their equal protection claims further.

She also found there was possible pretext in DHS’s sudden reversal:

The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision … made and the rationale … provided.” Department of Commerce v. New York (2019). Only by bypassing context does the plurality conclude otherwise.

Justice Thomas offered only a footnote about the Equal Protection Clause:

 I concur in the judgment insofar as the majority rejects respondents’ equal protection claim.

I don’t read this statement to agree with Roberts’s analysis in Part IV. He only concurs in the judgment.

Justice Kavanaugh’s dissent included a similar line:

I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim.

As I read the case, only four Justices supported the Chief’s analysis.

In total, eight Justices rejected the Plaintiffs’ Equal Protection arguments. Though there was not a majority opinion for a rationale. Therefore, there is no holding with respect to Arlington Heights. And no actual Equal Protection precedent was set. The John Roberts express chugs along.

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The Equal Protection Issues in the DACA Case

The DACA decision primarily involved principles of administrative law. (I discussed those issues here and here). But the case also involved a challenge brought under the Equal Protection Component of the Fifth Amendment. (Remember, the Fifth Amendment lacks an Equal Protection Clause).

The Plaintiffs alleged that the rescission of DACA violated the Equal Protection component of the Fifth Amendment. Chief Justice Roberts described the claims:

Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump.

I discussed the issue way back when in a September 2017 WSJ op-ed (this litigation has been floating around for three-plus years):

That brings us to Mr. Schneiderman’s most unsettling claim: that Mr. Trump can’t revoke DACA because he is racist. “The President has demonstrated a willingness to disparage Mexicans in a misguided attempt to secure support from his constituency,” the states’ complaint argues, “even when such impulses are impermissible motives for directing governmental policy.”

The filing cites a litany of Mr. Trump’s offensive comments—his warning about Mexican “rapists”; his disparagement of Univision anchor Jorge Ramos; his reference in a presidential debate to “bad hombres”; his attacks on Judge Gonzalo Curiel—as well as his pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz.

Let’s start with Part IV of Roberts’s opinion, which was joined (behind the veil of a paper bag) by Justices Ginsburg, Breyer, and Chief Justice Kagan. Roberts rejected each of these three arguments.

None of these points, either singly or in concert, establishes a plausible equal protection claim. First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

We saw a similar argument during the travel ban litigation: Any policy that prohibited entry of people from countries with links to terrorism would be predominantly Muslim.

Second, Roberts rejected the relevance of the history leading up to the rescission:

Second, there is nothing irregular about the history leading up to the September 2017 rescission. The lower courts concluded that “DACA received reaffirmation by [DHS] as recently as three months before the rescission,” referring to the June 2017 DAPA rescission memo, which stated that DACA would “remain in effect.” But this reasoning confuses abstention with reaffirmation. The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.” It was a natural response to a newly identified problem

Not quite. The newly-identified problem was that Texas threatened to sue. Sessions thought DACA was illegal for years.

Finally, Roberts rejects the relevance of the President’s statements about Hispanics. Why? Because the relevant actors are the DHS Secretary and the Attorney General. More importantly, he dismissed the relevance of Trump’s statements under the Arlington Heights framework.

But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts—do not qualify as “contemporary statements” probative of the decision at issue. Arlington Heights. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.

Alas, this analysis only had four votes. Therefore, we do not have a five-member majority that dismisses Trump’s statements, “remote in time and made in unrelated contexts.”

Justice Sotomayor could not don this paper bag. She wrote a partial dissent that focused on Trump’s statements. It was very similar to her Trump v. Hawaii dissent.

But “nothing in our precedent supports [the] blinkered approach” of disregarding any of the campaign statements as remote in time from later-enacted policies. Trump v. Hawaii, (2018) (SOTOMAYOR, J., dissenting). Nor did any of the statements arise in unrelated contexts. They bear on unlawful migration from Mexico—a keystone of President Trump’s campaign and a policy priority of his administration—and, according to respondents, were an animating force behind the rescission of DACA. Taken together, “the words of the President” help to “create the strong perception” that the rescission decision was “contaminated by impermissible discriminatory animus.” This perception provides respondents with grounds to litigate their equal protection claims further.

She also found there was possible pretext in DHS’s sudden reversal:

The abrupt change in position plausibly suggests that something other than questions about the legality of DACA motivated the rescission decision. Accordingly, it raises the possibility of a “significant mismatch between the decision … made and the rationale … provided.” Department of Commerce v. New York (2019). Only by bypassing context does the plurality conclude otherwise.

Justice Thomas offered only a footnote about the Equal Protection Clause:

 I concur in the judgment insofar as the majority rejects respondents’ equal protection claim.

I don’t read this statement to agree with Roberts’s analysis in Part IV. He only concurs in the judgment.

Justice Kavanaugh’s dissent included a similar line:

I therefore respectfully dissent from the Court’s judgment on plaintiffs’ APA claim, and I concur in the judgment insofar as the Court rejects plaintiffs’ equal protection claim.

As I read the case, only four Justices supported the Chief’s analysis.

In total, eight Justices rejected the Plaintiffs’ Equal Protection arguments. Though there was not a majority opinion for a rationale. Therefore, there is no holding with respect to Arlington Heights. And no actual Equal Protection precedent was set. The John Roberts express chugs along.

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Does the Second Amendment prohibit slavery?

Is the text of the Second Amendment contrary to slavery? So argued the great abolitionist Lysander Spooner in his 1845 book The Unconstitutionality of Slavery. When the Fourteenth Amendment was ratified in 1866-68, the Amendment’s supporters agreed with Spooner that if the Second Amendment were enforced, slavery would be impossible.

Author of important books and pamphlets on scores of subjects, Lysander Spooner’s greatest passion was antislavery. A radical theorist, Spooner was a hero to many antislavery activists, including John Brown, whose raid on Harper’s Ferry was inspired by reading Spooner. He was “pre-eminent in the group of abolitionists who developed the constitutional law now incorporated in the Fourteenth Amendment.” C. Shively, Introduction to 4 Lysander Spooner, Collected Works 11 (1971). For more, see Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011).

Spooner was “the most theoretically profound advocate” of the position that slavery was unconstitutional. David A. J. Richards, Abolitionist Political and Constitutional Theory and the Reconstruction Amendments, 25 Loy. L.A. L. Rev. 1187, 1193 (1992).

In the widely-distributed and frequently reprinted book The Unconstitutionality of Slavery, Spooner argued that the Constitution should be interpreted according to the original public meaning of the words in the text. In case of ambiguity, words should construed according to natural justice. Spooner did not favor looking to speeches by political figures, newspaper essays, or other sources to put a gloss on the constitutional text itself.

As Barnett explains:

Spooner supplemented this interpretive claim about original public meaning with a principle of construction he took from the 1805 Supreme Court case of United States v. Fisher in which John Marshall articulated a ‘plain statement’ rule of construction for resolving ambiguities in the public meaning of statutes. “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from,” wrote Chief Justice Marshall, “the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

As elaborated by Spooner, under this rule of construction, when the original public meaning is ambiguous—that is, when there is more than one reasonable meaning—”the court will never, through inference, nor implication, attribute an unjust intention to a law; nor seek for such an intention in any evidence exterior to the words of the law. They will attribute such an intention to the law, only when such intention is written out in actual terms; and in terms, too, of ‘irresistible clearness'”

For example, Spooner’s natural justice interpretation of the Second Amendment was straightforward:

This right “to keep and bear arms,” implies the right to use them–as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights–as, for example, in defence of life, liberty, chastity, &c. . . . If the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also . . . robbery, or any other acts of wrong to which arms are capable of being applied. The mere verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But the legal implication gives only an authority for their innocent use. (Unconstitutionality of Slavery, p. 66).

Spooner used the Second Amendment to argue that slavery was unconstitutional. Since a slave is a person who is (or can be) forbidden to possess arms, and the Second Amendment guarantees that all persons can possess arms, no person in the United States can be a slave. Similarly, the militia clauses (Art. I, sect. 8, cls. 15-16) give Congress the power to arm the militia and to call it forth. He elaborated:

These provisions obviously recognize the natural right of all men “to keep and bear arms” for their personal defence; and prohibit both Congress and the State governments from infringing the right of “the people”–that is, of any of the people–to do so; and more especially of any whom Congress have power to include in their militia. The right of a man “to keep and bear arms,” is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the States presume to call slaves, as to any whom the States condescend to acknowledge free.

Under this provision any man has a right either to give or sell arms to those persons whom the States call slaves; and there is no constitutional power, in either the national or State governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this constitutional right to keep arms implies the constitutional right to use them, if need be, for the defence of one’s liberty or life.  (Id. at 97-98.)

As Spooner recognized, the Constitution never expressly used the words “slave” or “slavery.” James Madison explained that he kept those words out of the document because it would be “wrong to admit in the Constitution the idea that there could be property in men.” Timothy Sandefur, The Anti-Slavery Constitution, National Review, Sept. 30, 2019. So the word “slavery” did not appear in the Constitution until 1865, with the 13th Amendment: “Neither slavery nor involuntary servitude….”

Spooner argued that the so-called “Fugitive Slave Clause” was no such thing. The actual text said:

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due. (Art. IV, sect. 2, cl. 3.)

According to Spooner, the text could be read to apply only indentured servants, or other persons who voluntarily undertaken a service or labor obligation. Indentured servants were not legally free, but (unlike slaves) their required service would end after several years, according to the contract they had signed. For example, some immigrants to America paid for their sea voyage by signing a five-year indenture that the ship’s captain could sell upon arrival in America. Indenture contracts were legally enforceable.

In Spooner’s theory, reading the clause to encompass slavery would violate Chief Justice Marshall’s rule of interpretation.

As for the right of “persons whom the States call slaves” to use arms to resist recapture by government officers, Spooner wrote:

The constitution contemplates no such submission, on the part of the people, to the usurpations of the government, or to the lawless violence of its officers. On the contrary it provides that “The right of the people to keep and bear arms shall not be infringed.” This constitutional security for “the right to keep and bear arms,” implies the right to use them,–as much a constitutional security for food, would have have implied the right to eat it. The constitution, therefore, takes it for granted that, as the people have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it. (Lysander Spooner, A Defence for Fugitive Slaves 27-28 (1850).)

Similarly, Spooner contended that unconstitutional laws need not be obeyed pending their repeal. To require obedience to unconstitutional laws would be to allow the government “to disarm the people, suppress the freedom of speech and the press, prohibit the use of suffrage, and thus put it beyond the power of the people to reform the government through the exercise of those rights.” Id. at 28.

In Spooner’s best seller, the 1852 An Essay on the Trial by Jury, he used U.S. Constitution right to jury trial and “the right of the people to keep and bear arms” to make his point that the “right of resistance is recognized by the constitution of the United States.” (p. 17).

Courts in the 1840s and 1850s did not adopt Spooner’s view that slavery was unconstitutional. Then in 1865, the Thirteenth Amendment made explicit was Spooner had argued was always implicit: slavery is unconstitutional. The Thirteenth Amendment was insufficient by itself to prevent the newly-freed from being de facto re-enslaved. If former slave states could prohibit freedmen from assembling, from contracting their labor freely, from traveling, or from defending themselves, then they could be reduced to servitude by the Black Codes being adopted in the ex-confederate states.

Just a few weeks after the Confederate States surrendered at Appomattox, Frederick Douglass declared:

Now, while the black man can be denied a vote, while the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together—the work of the Abolitionists is not finished. Notwithstanding the provision in the Constitution of the United States that the right to keep and bear arms shall not be abridged, the black man has never had the right either to keep or bear arms; and the Legislatures of the States will still have the power to forbid it, under this [Thirteenth] Amendment. They can carry on a system of unfriendly legislation, and will they not do it? Have they not got the prejudice there to do it with? (Frederick Douglass, In What New Skin Will the Old Snake Come Forth? Address delivered in New York City, May 10, 1865, pp. 83-84 [In Frederick Douglass Papers, series 1, vol. 4).

The next year, Congress recognized that disarming the freedmen was indeed part of the efforts of southern state governments and terrorist organizations to keep the freedmen in de facto servitude. So in 1866, the Second Freedmen’s Bureau bill ordered the Union army in the South to protect the freedmen’s “full and equal benefit of all laws and proceedings for the security of person and estate including the constitutional right to bear arms.” The same year, the Civil Rights Act was passed, and the Fourteenth Amendment was sent to the States for ratification. All were enacted with supporters’ expressly stated purpose of protecting the Second Amendment self-defense rights of the freedmen. McDonald v. Chicago (2010) (Thomas, J., concurring) (detailing legal history, and citing Spooner).

Whether Spooner’s 1845 approach to constitutional interpretation is the best one can be debated. It can be said that parts of his constitutional vision were so compelling–and so much in accord with natural justice–that they became the law of the land. As the Fourteenth Amendment recognizes, slavery and the constitutional right to arms are opposites.

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Why Washington, D.C. Is In Trouble: 7,780 Public Employees With $100,000+ Salaries Cost Taxpayers $1 Billion

Why Washington, D.C. Is In Trouble: 7,780 Public Employees With $100,000+ Salaries Cost Taxpayers $1 Billion

Tyler Durden

Fri, 06/19/2020 – 19:30

Authored by Adam Andrzejewski via Forbes.com,

Local politicians in Washington, D.C. claim a $1.5 billion budget deficit due to the coronavirus pandemic. So, they’re lobbying Congress for a two-year $3.15 billion bailout.

But the city’s financial woes aren’t stopping nearly 8,000 city government employees – including the mayor and city council – from bringing home six-figure salaries and higher.

Washington’s leaders try and fail each year in their application for statehood, but they’re already out-earning their state counterparts.

Our auditors at OpenTheBooks.com found that Mayor Muriel Bowser earned $220,000 last year – an amount exceeding every governor of the 50 states ($202,000).

What’s more, DC city councilmembers ($141,282) out-earned members of every state legislature – including New York ($130,000). DC city council chairman Philip Mendelson ($210,000) out-earned all members of Congress except for Speaker Nancy Pelosi ($223,500).

We found school crossing guards routinely making $67,324; the abandoned vehicle program manager earning $97,913; a director of alcoholic beverages making $192,000; the city librarian earning $223,863; city psychiatrists billing up to $260,000; and the city administrator making $307,000.

Our interactive mapping tool allows users to quickly review every public employee in Washington, D.C. making more than $100,000 (by ZIP code). Just click a pin and scroll down to see the results in your neighborhood rendered in the chart beneath the map.

Public employees in Washington, D.C. are some of the most highly compensated in the nation. 

OPENTHEBOOKS.COM

Every major agency in Washington, D.C., supports employees making more than $100,000 per year.

Metropolitan Police Department (MPD): Police chief Peter Newsham ($273,156) out-earned every four-star general in the U.S. military ($268,332).

Other MPD administrative positions out-earned the secretary of U.S. Department of Homeland Security ($179,700), one of the nation’s top law enforcement officials. Even the director of Police Complaints made $214,273 last year.

MPD Executive director Michael Tobin ($214,273); assistant chiefs Robert Contee and Lamar Greene ($207,454); supervisory attorney Advisor Terrence Ryan ($191,201); and commanders Willie Dandridge and Ralph Ennis ($188,112) also out-earned the DHS secretary.

Public Schools: Chancellor Lewis Ferebee made $280,000 and out-earned U.S. Education Secretary Betsy Devos ($199,700). Nearly 2,250 educators with the K-12 schools made more than $100,000 last year.

Four education deputies to the chancellor earned $228,363. Eleven chiefs received salaries up to $189,891 – including “chief of talent and culture” ($184,518) and “senior deputy chief of school culture” ($175,023). Another 19 “deputy chief” positions earned up to $155,798.

Compared to the latest available national statistics, the DC schools have more than twice the number of administrators per student. Principals made up to $199,000, and 96 six-figure assistant principals earned up to $141,688.

So, how are the students doing in the classroom? Proficiency on standardized tests ranged from an average of 30-percent in math to 35-percent in reading.

Public Library: Executive Director Richard Reyes-Gavilan ($223,863) out-earned everyone employed at the National Archive and the Smithsonian Institution ($201,400). For additional context, the commissioner of the Chicago Public Library earned $167,004 last year.

Other six-figure staffers included the General Counsel Grace Perry Gaiter ($188,113); Human Resources Director Barbara Ford-Kirven ($180,544); and Chief of Staff Joilette Mecks ($180,253). Those staffers joined another 50 library employees whose pay exceeded six-figures.

Parks and recreation: The chief of staff (Jason Yuckenburg $180,000) out-earned the secretary at the U.S. Department of Interior ($175,700) – a cabinet level position whose agency manages one-fifth of all land in the USA.

Other high earners in the DC parks department included the director (Delano Hunter $161,614) and deputy director (Ella Faulkner $150,000).

Mayor’s office and administration: In addition to the mayor ($220,000), six other employees in the mayor’s office out-earned every U.S. governor.

High earners included the city administrator (Rashad Young $307,000) and “deputy mayor(s)” include Health and Human Services (Wayne Turnage $225,915); Greater Economic Opportunity (Lucinda Babers $211,770); and Education (Paul Kihn $211,770). The mayor’s legal counsel (Ronald Ross $211,000) and the chief of staff (John Falcicchio $211,000) also received high pay.

Our auditors found other interesting positions that paid well:

School traffic control officers: In the DC public schools, there were 74 “officers of traffic control” that made between $60,000 and $70,000 last year. Management did even better: “traffic control” directors earned up to $156,840 and supervisors cleared $136,011.

What do these crossing guards and officers do when school is out of session?

Attorney Advisors: DC residents are likely unaware that they employ 232 legal advisors – their real job description is lawyer – who made up to $191,201. In fact, the Public Service Commission paid four “attorney advisor” positions $182,204. The DC attorney general has six advisory positions that paid $174,520.

Supervisors of the attorney advisors earned even more money – up to $191,201 at the agencies of employment/disability and police/fire. The position at energy/environment paid $185,483.

Public affairs officers: David Umansky handled the public relations for the city CFO and made $169,545 last year. Across city agencies, there were 77 PR officers employed and their average pay was six-figures.

With the vast expansion of federal government during the last decade, the nation’s beltway is booming. It’s quite an economic subsidy when you’re the capitol seat.

DC is flush with cash and rakes in more than enough money to pay its bills. It boasts assets of $5.8 billion compared to $4.9 billion in liabilities, according to watchdog group Truth In Accounting.

Nevertheless, last month, The Heroes Act passed the U.S. House and would provide $3 billion over a two-year period earmarked for DC as a coronavirus bailout. The bill is stuck in the Senate.

As city politicians continue to push their bailout and statehood agenda, it’s important to note that most would take a substantial pay cut if they actually mirrored the salary scale from the states.

*  *  *

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via ZeroHedge News https://ift.tt/3hN1OcE Tyler Durden

Daily Briefing – June 19, 2020

Daily Briefing – June 19, 2020


Tyler Durden

Fri, 06/19/2020 – 19:25

Real Vision CEO Raoul Pal joins senior editor Ash Bennington to reflect on a week of muted volatility amid a “quadruple witching” and unprecedented interventions from the world’s major central banks. Raoul and Ash analyze the ECB’s recent meeting around fiscal policy, and whether the Bank of Japan (BOJ), European Central Bank (ECB), and Bank of England (BOE) will follow the Fed and go into “hyperdrive,” as Raoul puts it. The pair also discusses Apple’s decision to close stores in the U.S. as the coronavirus continues to spread. Lastly, the pair looks forward to the upcoming “Crypto Gathering” on Real Vision. In the intro, Jack Farley discusses the recent Wirecard scandal and gives an overview of new action in the burgeoning corporate debt market.

via ZeroHedge News https://ift.tt/3hM9Qmk Tyler Durden

Bolton Might Miss Out On All Profits From His Tell-All Book

Bolton Might Miss Out On All Profits From His Tell-All Book

Tyler Durden

Fri, 06/19/2020 – 19:05

As the White House’s challenge to the publication of John Bolton’s book on National Security grounds winds its way through the federal courts, the judge overseeing the case said during a hearing on Friday that neither side may walk away with a clear victory.

At this point, the judge conceded, there’s nothing to be done to suppress the information in the book. Its most salacious claims have already been made public thanks to a series of coordinated leaks.

But the courts can still strip Bolton of the right to profit from sales of the book, since he walked away from a final review.

Here’s more from Bloomberg:

Former National Security Advisor John Bolton likely jumped the gun in submitting his tell-all memoir on President Donald Trump for publication, but it’s probably too late to stop the sales of the book, a federal judge said.

“The horse seems to be out of the barn” with hundreds of thousands of copies already circulating, U.S. District Judge Royce Lamberth in Washington said at a hearing over the government’s request to block the book’s release on June 23.

Lamberth didn’t rule on the request but his comments indicate neither side in the dispute is set for a clear victory. While Bolton may succeed in getting the book out to the public, he may not get any profits from it as Lamberth said that Bolton walked away from a pre-publication review without getting the final sign-off as required.

Bolton’s lawyer Chuck Cooper said Bolton followed his contract “not just in spirit, but to the letter.” But Lamberth jumped in and disagreed, saying that’s not true. Bolton “went out on his own,” the judge said. “I don’t really understand why he decided to take that risk.”

Lamberth said he’ll hold another hearing on the dispute, in private.

The judge also castigated Bolton’s legal team over their client’s penchant for stirring up drama by “going out on his own” during the middle of a high stakes review with the country’s national security interests at stake.

It’s almost as if Secretary of State Mike Pompeo might have a point.

But even if the book does make it to shelves without any issues, Bolton’s sales might not be as high as he and his publisher probably hope.

via ZeroHedge News https://ift.tt/3fDqe6E Tyler Durden

Why Changing CHAZ To CHOP Is Actually A Very Big Deal

Why Changing CHAZ To CHOP Is Actually A Very Big Deal

Tyler Durden

Fri, 06/19/2020 – 18:40

Authored by Toby Cowern via The Organic Prepper blog,

I just wanted to share with you a couple of thoughts that have been on my mind lately and see how it resonates with you out there. It has been very interesting for me in tracking the rioting that’s predominately been going on in the US. It’s obviously happening in other countries as well in support of the Black Lives Matter movement and other organizations emerging around their concerns of systemic racism in the US.

One thing for those reading from the US: I don’t know if you’re aware of how widespread the support for that movement and this message actually is? Even here in Sweden, we’ve seen protests occurring in different areas, as well as clashes with the police under these slogans and banners.

Protesters have taken over several blocks in Seattle.

In the US on June 8th, a group of protesters took over a 6 block area in the Capitol Hill neighborhood of Seattle, Washington. A Black Lives Matter protest escalated and the police were driven out of the local precinct.  The group set up blockades barring law enforcement from entering the area and set up camp under the acronym CHAZ.

Photo Credit: Derek Simeone – Welcome to CHAZ

Within the zone, they set up a display dedicated to people who died at the hands of police and Black Lives Matter. Many buildings now bear BLM graffiti

Photo Credit: Jzesbaugh

There’s also a large street mural.

Photo Credit: By Kyle Kotajarvi

Descriptions of the area vary from it being a dangerous warzone to a utopian street fair. Politico says that Fox News is completely misleading readers and viewers and that Black Lives Matters organizers are running it, although other groups are also involved.

But it’s Fox that has been all over the story of the so-called Capitol Hill Autonomous Zone or CHAZ (which its Black Lives Matter organizers on Saturday renamed the Capitol Hill Organized Protest, CHOP): four-plus blocks of street and sidewalk in Seattle’s traditional gay and bohemian nightlife district, surrounding a boarded-up police precinct headquarters that the mayor ordered vacated last Monday to dampen a week-and-a-half of escalating confrontations between police and protesters. From there, the fluid protests, spearheaded by BLM but involving a wide spectrum of activists and ordinary citizens, coalesced with surprising rapidity into something like a provisional government. (source)

They have a list of demands, which you can read here.

The first thing that has my attention is the name change.

One thing that really stuck out in my mind happened just a few days ago. The Capitol Hill Autonomous Zone, known as the CHAZ, changed its name to the Capitol Hill Occupy Protests. So it’s now CHOP. It’s very easy to dismiss that as something very small and insignificant. I see a lot of people when they’re writing, still calling it the CHAZ, and even to the extent of some mocking the name change: with “See? They can’t even decide what they are called’ type of commentary…

Why is this important to me? Why does this get my attention?

A couple of things really.

One, it’s about seeing if people are ‘on-script’. So if people are supporting that cause specifically, how quickly do they change the vocabulary? How quickly do they adopt new terminology? How “onboard” are they with the message?

That’s important for tribal identity reasons. Tribal identity is a very important factor in the strength of the movement going forwards. The second reason it’s important is that they were losing some ground under the title of CHAZ. These occupiers were losing some PR ground. They were getting mocked, basically, because people were saying, “Well, you’re not autonomous, you know. You’ve declared this an independent state. You’re saying you’re not part of America. Autonomous should mean self-sufficient and you’re clearly not. You’re constantly asking for help. You’re constantly asking for handouts. You’re constantly asking for donations. You’re constantly asking for support, so you’re not autonomous.”

So switching to CHOP, or as another “occupy” protest, basically mutes out that public relations problem because they no longer claim autonomy.

Now that’s very slick. That’s very savvy. That’s very smart, actually.

And that goes to a deeper part of the problem.

It’s very easy to look at this as just a scraggly, ragtag bunch of people just sort of wandering around with this Utopian vision. But this small thing really shows a much deeper commitment, leadership, structure, and ability. An order has come down from somewhere and is very quickly spread throughout the key people, and then down to the ‘foot soldiers’, “This is what we will now be called and this is why.”

Now we can look at it as a kind of PR swing, which in and of itself would be quite worrisome that they can be so on-message. But in addition to this, we should note how quickly the change was implemented, communicated, and adopted.

But then what’s really captured me is the name: Capitol Hill Occupied Protest.

Do you remember Occupy Wall Street?

The Occupy Movement gained strength from the back of the financial crisis in the last decade, and notably from 2009, swelled. You may remember, the political slogan was, “We are the 99%.” It peaked in 2011 with the Occupy Wall Street movement. So the Occupy movement is much much, much bigger enabler and tribal identity. In fact, there were Occupy movement protests through 2010 onwards in 31 different countries, and most of those were major Western countries.

So this is now basically allowing, tempting, and goading those people who identified with the Occupy movement to join and rally around this cause. There may have been a small sort of core key group, perhaps Antifa-type in the beginning, getting the boots on the ground, actually, performing the occupation, and now they can broaden out and become more widespread.

I think we’re going to see a very sharp consolidation of the power base of this movement and you’re going to see a massive increase in the ranks.

This is notable for me in two different ways.

One is timing. As of publication, it’s June the 19th. So you’re just two weeks short of July the fourth, or America’s Independence Day, which is obviously a massively iconic date and not only in the US. It’s interesting again, that a lot of Western countries have sort of adopted their own July 4th variation. It’s not exactly a worldwide holiday, but certainly a day of note. In two weeks, a lot can happen. We’ve seen that often this year. It’s enough time for major additional plans to be put in place and so this 4th of July could be very eventful.

Then there’s the second point that’s gotten my attention.

Think back to 2009-2011 – this was the real peak of the Occupy movement. We’re now in 2020. We’re nine years on.

So those young, idyllic people that were the main rank and file of that movement are 10 years older now. Those who were quite high profile students from good universities were getting behind this, what positions are they in nowadays? They’re going to be sitting at mid, or high-level management in major corporations. They’re going to have a whole other sphere of influence.

Or they might be on the city council.

A Seattle City Council member, Kshama Sawant, was part of the original Occupy Wall Street protests and is also part of this one.

While the protest does have some loose leadership, there are few formal structures. Sawant compares the space to the “Night of 500 tents” during the Occupy Wall Street movement in Seattle in October 2011, of which she was a part. Back then, Occupy protesters were able to drive police from their space before police returned and cleared out the area where the protests took place.

Already, said Sawant, CHOP has outlasted what they were able to achieve with that Occupy action, which only lasted three days. But she said she expects police to clear the area sometime in the near future. “I don’t think that we can in any way assume that the police will not come back and specifically attack this space,” she said. “I think we should expect that that could happen at any moment, because that’s exactly what happened in Occupy.” (source)

No longer is this about wearing a funny t-shirt and waving a flag on the street and feeling the reward of being ‘part of the crowd’ anymore. These people have progressed into places that they have major corporate clout.

And that leads to funding.

In the last week, there is something that has been notable in a way that I can’t say I’ve seen before with any of the previous campaigns. And that is how many major companies are openly pledging their support, either specifically for Black Lives Matter, or for affiliate organizations.

I’m not getting into the rights and wrongs of tackling racism. That’s not what this post is about. This is about identifying and really highlighting to you how keeping an eye on the big circle is worth it. These kinds of moments should get your attention.

Now we’re looking at major corporate identification, either through genuine backing of the cause, societal pressure, or the perception of societal pressure. I imagine that people in boardrooms are saying, “If we don’t get on board with this campaign, we really risk running a loss here or hurting our bottom line or affecting our sales base,” whichever the case may be.

Virtue signaling now begins to transform into more tangible corporate action. The key thing I’m seeing in the emails that I receive is donations. Big companies are saying. “We support this cause and we’re actively putting money into it.”

And it’s significant sums, like $50,000 a week, $100,000 a month, a one-time donation of $250,000. So not only are we seeing an increase in the number of participants, we’re seeing a massive increase in funding. And I do believe there was already significant funding for these organizations anyway.

This is all piled onto a situation that clearly has concise and controlling leadership behind it.

We’re trending toward a perfect storm.

I read a huge amount of news on a daily basis just to kind of track everything from China to America, and everything in between, locally, upscale, and downscale. When something really gets my attention, it is leaping out of a massive information maelstrom.

What I’m trying to highlight here is more of a thought process. You need to consume the news but not be consumed by it. But allowing yourself to absorb a wide stream of information from broad and varying sources gives you the chance, every now and then, too see how certain ‘key things’ fit together and gives the possibility of better trend assessment and therefore, a prediction.

I’m not going to say this is perfect storm territory yet, but it’s definitely trending in that direction. It’s something that I’m keeping my eye on more and more.  I just wanted to share with you a little bit of what was going through my thoughts in the last two or three days.

What I’d love on this particular issue is for you to please comment below if you’re seeing the same things? Are you getting those emails from companies pledging support? Are you hearing from work colleagues or friends or family that this is a movement they’re increasingly getting behind and they feel that they need to do something? Where is everybody else out with this?

And this isn’t just an American question. Again, go right back to the beginning. These movements are occurring in different countries at various levels of tenacity. And we’re definitely seeing the spread.

So wherever you’re based, please do share your observations, if you care to, in the comments below. Thank you so much.

via ZeroHedge News https://ift.tt/2YOHwqE Tyler Durden

Does the Second Amendment prohibit slavery”

Is the text of the Second Amendment contrary to slavery? So argued the great abolitionist Lysander Spooner in his 1845 book The Unconstitutionality of Slavery. When the Fourteenth Amendment was ratified in 1866-68, the Amendment’s supporters agreed with Spooner that if the Second Amendment were enforced, slavery would be impossible.

Author of important books and pamphlets on scores of subjects, Lysander Spooner’s greatest passion was antislavery. A radical theorist, Spooner was a hero to many antislavery activists, including John Brown, whose raid on Harper’s Ferry was inspired by reading Spooner. He was “pre-eminent in the group of abolitionists who developed the constitutional law now incorporated in the Fourteenth Amendment.” C. Shively, Introduction to 4 Lysander Spooner, Collected Works 11 (1971). For more, see Randy E. Barnett, Whence Comes Section One? The Abolitionist Origins of the Fourteenth Amendment, 3 J. Legal Analysis 165 (2011).

Spooner was “the most theoretically profound advocate” of the position that slavery was unconstitutional. David A. J. Richards, Abolitionist Political and Constitutional Theory and the Reconstruction Amendments, 25 Loy. L.A. L. Rev. 1187, 1193 (1992).

In the widely-distributed and frequently reprinted book The Unconstitutionality of Slavery, Spooner argued that the Constitution should be interpreted according to the original public meaning of the words in the text. In case of ambiguity, words should construed according to natural justice. Spooner did not favor looking to speeches by political figures, newspaper essays, or other sources to put a gloss on the constitutional text itself.

As Barnett explains:

Spooner supplemented this interpretive claim about original public meaning with a principle of construction he took from the 1805 Supreme Court case of United States v. Fisher in which John Marshall articulated a ‘plain statement’ rule of construction for resolving ambiguities in the public meaning of statutes. “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from,” wrote Chief Justice Marshall, “the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

As elaborated by Spooner, under this rule of construction, when the original public meaning is ambiguous—that is, when there is more than one reasonable meaning—”the court will never, through inference, nor implication, attribute an unjust intention to a law; nor seek for such an intention in any evidence exterior to the words of the law. They will attribute such an intention to the law, only when such intention is written out in actual terms; and in terms, too, of ‘irresistible clearness'”

For example, Spooner’s natural justice interpretation of the Second Amendment was straightforward:

This right “to keep and bear arms,” implies the right to use them–as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights–as, for example, in defence of life, liberty, chastity, &c. . . . If the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also . . . robbery, or any other acts of wrong to which arms are capable of being applied. The mere verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But the legal implication gives only an authority for their innocent use. (Unconstitutionality of Slavery, p. 66).

Spooner used the Second Amendment to argue that slavery was unconstitutional. Since a slave is a person who is (or can be) forbidden to possess arms, and the Second Amendment guarantees that all persons can possess arms, no person in the United States can be a slave. Similarly, the militia clauses (Art. I, sect. 8, cls. 15-16) give Congress the power to arm the militia and to call it forth. He elaborated:

These provisions obviously recognize the natural right of all men “to keep and bear arms” for their personal defence; and prohibit both Congress and the State governments from infringing the right of “the people”–that is, of any of the people–to do so; and more especially of any whom Congress have power to include in their militia. The right of a man “to keep and bear arms,” is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the States presume to call slaves, as to any whom the States condescend to acknowledge free.

Under this provision any man has a right either to give or sell arms to those persons whom the States call slaves; and there is no constitutional power, in either the national or State governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this constitutional right to keep arms implies the constitutional right to use them, if need be, for the defence of one’s liberty or life.  (Id. at 97-98.)

As Spooner recognized, the Constitution never expressly used the words “slave” or “slavery.” James Madison explained that he kept those words out of the document because it would be “wrong to admit in the Constitution the idea that there could be property in men.” Timothy Sandefur, The Anti-Slavery Constitution, National Review, Sept. 30, 2019. So the word “slavery” did not appear in the Constitution until 1865, with the 13th Amendment: “Neither slavery nor involuntary servitude….”

Spooner argued that the so-called “Fugitive Slave Clause” was no such thing. The actual text said:

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labour may be due. (Art. IV, sect. 2, cl. 3.)

According to Spooner, the text could be read to apply only indentured servants, or other persons who voluntarily undertaken a service or labor obligation. Indentured servants were not legally free, but (unlike slaves) their required service would end after several years, according to the contract they had signed. For example, some immigrants to America paid for their sea voyage by signing a five-year indenture that the ship’s captain could sell upon arrival in America. Indenture contracts were legally enforceable.

In Spooner’s theory, reading the clause to encompass slavery would violate Chief Justice Marshall’s rule of interpretation.

As for the right of “persons whom the States call slaves” to use arms to resist recapture by government officers, Spooner wrote:

The constitution contemplates no such submission, on the part of the people, to the usurpations of the government, or to the lawless violence of its officers. On the contrary it provides that “The right of the people to keep and bear arms shall not be infringed.” This constitutional security for “the right to keep and bear arms,” implies the right to use them,–as much a constitutional security for food, would have have implied the right to eat it. The constitution, therefore, takes it for granted that, as the people have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it. (Lysander Spooner, A Defence for Fugitive Slaves 27-28 (1850).)

Similarly, Spooner contended that unconstitutional laws need not be obeyed pending their repeal. To require obedience to unconstitutional laws would be to allow the government “to disarm the people, suppress the freedom of speech and the press, prohibit the use of suffrage, and thus put it beyond the power of the people to reform the government through the exercise of those rights.” Id. at 28.

In Spooner’s best seller, the 1852 An Essay on the Trial by Jury, he used U.S. Constitution right to jury trial and “the right of the people to keep and bear arms” to make his point that the “right of resistance is recognized by the constitution of the United States.” (p. 17).

Courts in the 1840s and 1850s did not adopt Spooner’s view that slavery was unconstitutional. Then in 1865, the Thirteenth Amendment made explicit was Spooner had argued was always implicit: slavery is unconstitutional. The Thirteenth Amendment was insufficient by itself to prevent the newly-freed from being de facto re-enslaved. If former slave states could prohibit freedmen from assembling, from contracting their labor freely, from traveling, or from defending themselves, then they could be reduced to servitude by the Black Codes being adopted in the ex-confederate states.

Just a few weeks after the Confederate States surrendered at Appomattox, Frederick Douglass declared:

Now, while the black man can be denied a vote, while the Legislatures of the South can take from him the right to keep and bear arms, as they can—they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together—the work of the Abolitionists is not finished. Notwithstanding the provision in the Constitution of the United States that the right to keep and bear arms shall not be abridged, the black man has never had the right either to keep or bear arms; and the Legislatures of the States will still have the power to forbid it, under this [Thirteenth] Amendment. They can carry on a system of unfriendly legislation, and will they not do it? Have they not got the prejudice there to do it with? (Frederick Douglass, In What New Skin Will the Old Snake Come Forth? Address delivered in New York City, May 10, 1865, pp. 83-84 [In Frederick Douglass Papers, series 1, vol. 4).

The next year, Congress recognized that disarming the freedmen was indeed part of the efforts of southern state governments and terrorist organizations to keep the freedmen in de facto servitude. So in 1866, the Second Freedmen’s Bureau bill ordered the Union army in the South to protect the freedmen’s “full and equal benefit of all laws and proceedings for the security of person and estate including the constitutional right to bear arms.” The same year, the Civil Rights Act was passed, and the Fourteenth Amendment was sent to the States for ratification. All were enacted with supporters’ expressly stated purpose of protecting the Second Amendment self-defense rights of the freedmen. McDonald v. Chicago (2010) (Thomas, J., concurring) (detailing legal history, and citing Spooner).

Whether Spooner’s 1845 approach to constitutional interpretation is the best one can be debated. It can be said that parts of his constitutional vision were so compelling–and so much in accord with natural justice–that they became the law of the land. As the Fourteenth Amendment recognizes, slavery and the constitutional right to arms are opposites.

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Of Chris Rock, Cartoons, and Qualified Immunity

Police officers often receive qualified immunity for egregious misconduct, but not always. Yesterday, the U.S. Court of Appeals for the Sixth Circuit reversed a district court’s award of qualified immunity to officers accused of misconduct, as well as its grant of immunity to the city of Euclid, in part because of how the city trained its officers with inappropriate cartoons and a Chris Rock video. (No joke.)

Here is how Judge John Bush’s opinion for the court in Wright v. City of Euclid  begins:

This appeal involves a Chris Rock video and a cartoon, but it is no laughing matter. In fact, this case raises a gravely important issue—police use of force—that has dominated the nation’s attention in recent weeks. Lamar Wright, an African American man, brought claims under 42 U.S.C. § 1983 of unconstitutional excessive force, false arrest, malicious prosecution, and municipal liability, along with state-law claims, relating to the actions of certain police officers and other officials employed by the City of Euclid, Ohio.

The police officers, in plain clothes, approached Wright’s parked SUV with weapons drawn. Thinking he was about to be robbed, Wright tried to back up the vehicle to get away. A flash of a badge made him realize that the men he thought were about rob him were the police. Wright stopped the SUV, and the officers pulled open the driver’s side door. Wright had no weapon, and the officers holstered theirs. Nonetheless, they simultaneously deployed a taser against him and pepper-sprayed him at point-blank range, all while he remained seated in the vehicle. Wright had trouble getting out of the SUV because of a colostomy bag stapled to the right side of his abdomen. He was recovering from a medical operation for diverticulitis. The police aggravated the staples from his surgery, causing bleeding from around the bag.

The officers then arrested Wright even though there was arguably no probable cause for the arrest. The officers designated Wright’s arrest as arising from a drug investigation, even though they found no drugs on him. This designation resulted in Wright’s being detained for more than nine hours and subjected to an intrusive body scan for drugs well after the officers knew of Wright’s medical condition. The scan revealed no drugs, and no drug-related charges
were ever brought against him.

The district court granted summary judgment to the officers on the basis of qualified immunity, and to the City based on Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). As explained below, we disagree with the district court’s qualified immunity analysis. With respect to the Monell claim, the evidence against the City includes the Chris Rock video, played as part of its use-of-force training for officers, in which the comedian makes remarks
about Rodney King and police misconduct that are highly inappropriate for law-enforcement instruction. The proof also includes an offensive cartoon in the City’s police-training manual that portrays an officer in riot gear beating a prone and unarmed civilian with a club, with the caption “protecting and serving the poop out of you.” . . . Based on this evidence and more, we find that Wright has introduced sufficient evidence of municipal policy to satisfy Monell.

The Chris Rock video in question is available here.

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Was the DACA Decision “Deliberately Designed for One Day and Case Only”?

SCOTUSBlog is hosting an online symposium on the Supreme Court’s decision invaliding the Trump Administration’s attempt to rescind the Obama Administration’s Deferred Action for Childhood Arrivals (DACA) policy in Dept. of Homeland Security v. Regents of the University of California. 

In that symposium, I found the contribution by Professor Zach Price of the University of California at Hastings Law School to be particularly worthwhile. His piece begins:

In its decision in Department of Homeland Security v. Regents of the University of California barring repeal of the Deferred Action for Childhood Arrivals program, known as DACA, the Supreme Court reached an attractive result through flawed legal reasoning. The decision may carry implications that progressives will regret, but it is hard to tell because Chief Justice John Roberts’ opinion seems deliberately designed for one day and case only.

Later on, Professor Price writes:

When one dives into the details, the majority’s reasoning becomes so narrow and self-contradictory as to preclude confident generalization beyond the example at hand. The court expressly declined to consider DACA’s legality—yet faulted the secretary for failing to consider options she believed were unlawful. It held that the secretary was bound by the attorney general’s legal conclusions—yet faulted her for failing to independently parse the reasoning in a court decision. It emphasized the importance of considering reliance interests—yet never addressed the troubling incentives that protecting reliance could create for the executive. Overall, the court repeatedly emphasized the particular features of the government’s shambolic rescission process and parsed the particular words of DHS’ explanation, seemingly advertising the decision’s narrow, fact-specific character.

Given all this muddled narrowness, it is hard to escape the conclusion that the court, whether self-consciously or not, took advantage of the Trump administration’s characteristically erratic decision-making process to benefit sympathetic immigrants and freeze in place a policy the court knows to be both quite popular and quite polarizing. In effect, it reached a result that Congress should have reached on its own—but in a manner that spares Congress any need to strike compromises and disappoint some constituents to please others.

The whole thing is worth a read. The full symposium is here.

My own prior analysis of the decision is here.

 

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