A student in Massachusetts constructed a swastika in the hall. Two teachers talked about it (one by broaching the topic of antisemitism in class, the other in private conversations with teachers and another student); a third rescinded her letter of recommendation for the student (contacting colleges to explain why).
All three teachers have now been disciplined by the school. The first two teachers received disciplinary letters, the third has been suspended from teaching.
This is outrageous. I can -- barely -- wrap my head around some discipline for the two "talkers" on student privacy grounds if (a) they mentioned the swastika-creating student by name and (b) it was not generally known that he was the perpetrator. I still would be very, very dubious, but I can see a superficially not-entirely-frivolous rationale there.
But the suspension of the teacher who rescinded her letter of recommendation is far more troubling. While we don't often talk about "academic freedom" in the context of secondary school, it does exist and this is a great example of it. A teacher's decision to recommend a student for college or a job is an exercise of their personal judgment as academics and directly puts their reputation on the line. There can be no obligation to "go to bat" for a student if the teacher has lost confidence in the qualities that triggered her recommendation in the first place. It is beyond unreasonable to mandate that a teacher continue to back a student who is either pro-Nazi himself or so negligent with respect to the sentiments of others that he just doesn't care about the hurt and offense he causes.
By and large, the story here seems to be that the school district wanted to sweep this incident under the rug and several teachers declined to assist it in doing so. And when the perpetrating student's mother called and complained, the district swung into action to ensure that his not-right to have a favorable recommendation wasn't jeopardized just because he threw up some Nazi symbolism. It's grotesque. The Boston Globe describes the case as "difficult terrain", but it wasn't all that "difficult" until neo-Nazism managed to squirm back into the mainstream.
The teachers here are unionized, and I hope they grieve the hell out of this one.
UPDATE: Yep, the union is interceding on behalf of all three teachers.
Saturday, February 04, 2017
Thursday, February 02, 2017
Berkeley's Partially Pregnant Protests
There's an old saying that a woman cannot be "partially pregnant". Either she is, or she isn't. I'm not sure it's impossible to have a "partially peaceful protest", but at the very least it is obvious that a few well-positioned agitators can, if they choose, subvert the peaceful desires of the majority and make a nonviolent protest violent.
When Milo's speech was announced at Berkeley, I took the boring position of agreeing with Chancellor Dirks' statement more-or-less down the line: It is true that, upon invitation by a legitimate college organization Milo had the right to speak and Berkeley had no authority to block him. It is also true that the decision by the Berkeley College Republicans to invite him speaks volumes about their character as an organization, and they can rightfully be condemned for their choice.
As many of you know, Milo's speech was eventually canceled as the protest turned violent -- apparently at the instigation of a small group of "black bloc" anarchists who were filmed attacking police, property, and bystanders. It is unclear at this point how many of this cadre are themselves Berkeley students -- they may be, but it is also the case that the East Bay has a significant "homegrown" anarchist set which is well aware that it can get a lot more attention for its antics if it performs them on our campus. "Unclear" means "unclear": it may be that most of the violent actors were Berkeley students, it may be that virtually none of them were. But there is little controversy that most of the people protesting were not violent nor were they interested in utilizing violence. It is also very clear that the violence was not only against property; while I don't think that in of itself should matter, I have seen some smarmy posts that have ignored the interpersonal elements of the "black bloc" attacks.
It shouldn't surprise you that I am deeply opposed to the violent silencing that went on here. Yet I think it is worth unpacking exactly who was silenced here. Milo was, certainly, and that was wrong -- even though he's a repulsive little troll who never should have been invited in the first place. But it's also the case that the majority of protesters had a message they wish to express that was also violently erased. Violent protests and non-violent protests express different messages; here, the few who imposed the former subverted the speech of the latter. To act as if the former and the latter were simply one indistinct entity -- the "protest" -- is to give a violent minority an authority and authenticity they do not deserve. And to speak as if the only "victim" of the violence last night was Milo or those who wanted to hear him speak is to facilitate the very deliberate erasure that the "black bloc" -- and the right-wing media, for that matter -- wishes to impose upon the majority.
The fact of the matter is that there were three speeches scheduled at Berkeley last night. One was by a racist, misogynist, hateful right-wing troll. One was by a group of bandana-clad rabble-rousers who wanted to (in the words of their banner) "become ungovernable" through violent suppression. And one was by a community resolved to peacefully tell the first speaker that his views were not welcome at Berkeley.
The last one was the one with majority support. But the middle one was the only one we ended up hearing.
When Milo's speech was announced at Berkeley, I took the boring position of agreeing with Chancellor Dirks' statement more-or-less down the line: It is true that, upon invitation by a legitimate college organization Milo had the right to speak and Berkeley had no authority to block him. It is also true that the decision by the Berkeley College Republicans to invite him speaks volumes about their character as an organization, and they can rightfully be condemned for their choice.
As many of you know, Milo's speech was eventually canceled as the protest turned violent -- apparently at the instigation of a small group of "black bloc" anarchists who were filmed attacking police, property, and bystanders. It is unclear at this point how many of this cadre are themselves Berkeley students -- they may be, but it is also the case that the East Bay has a significant "homegrown" anarchist set which is well aware that it can get a lot more attention for its antics if it performs them on our campus. "Unclear" means "unclear": it may be that most of the violent actors were Berkeley students, it may be that virtually none of them were. But there is little controversy that most of the people protesting were not violent nor were they interested in utilizing violence. It is also very clear that the violence was not only against property; while I don't think that in of itself should matter, I have seen some smarmy posts that have ignored the interpersonal elements of the "black bloc" attacks.
It shouldn't surprise you that I am deeply opposed to the violent silencing that went on here. Yet I think it is worth unpacking exactly who was silenced here. Milo was, certainly, and that was wrong -- even though he's a repulsive little troll who never should have been invited in the first place. But it's also the case that the majority of protesters had a message they wish to express that was also violently erased. Violent protests and non-violent protests express different messages; here, the few who imposed the former subverted the speech of the latter. To act as if the former and the latter were simply one indistinct entity -- the "protest" -- is to give a violent minority an authority and authenticity they do not deserve. And to speak as if the only "victim" of the violence last night was Milo or those who wanted to hear him speak is to facilitate the very deliberate erasure that the "black bloc" -- and the right-wing media, for that matter -- wishes to impose upon the majority.
The fact of the matter is that there were three speeches scheduled at Berkeley last night. One was by a racist, misogynist, hateful right-wing troll. One was by a group of bandana-clad rabble-rousers who wanted to (in the words of their banner) "become ungovernable" through violent suppression. And one was by a community resolved to peacefully tell the first speaker that his views were not welcome at Berkeley.
The last one was the one with majority support. But the middle one was the only one we ended up hearing.
Wednesday, February 01, 2017
Conservatives, Ranked By Infuriatingness
Someone on Twitter wrote the other day that journalists are missing a big story regarding just how furious the Democratic base is right now at Republicans and conservatives. We often talk about the angry protesting left as being the Jill Stein remnant or obscure hippie cranks (hence how they're often dismissed by saying "oh, if only you had voted!"); but the fact is that this anger is real and palpable amongst the run-of-the-mill, institutionally-oriented Democratic voter.
That includes me. There are a lot of types of conservatives. and I'm furious with just about all of them right now, because just about all of them are -- in their own special way -- abdicating basic duties to their country with scarcely a nod to the putative principles they endorse. That said, there are gradients. So, for your cathartic pleasure, here is how I rank the different types of conservatives -- from most to least infuriating.
(1) Racist Republicans. We can debate until we're blue in the face just what proportion of Republicans are racist, or whether any person who backs Donald Trump can claim to be "anti-racist" with a straight face. But no matter how that discussion shakes out, there are clearly conservatives right now who are unquestionable bigots (and incidentally, those conservatives who are aghast that anyone would call them a bigot for voting Donald Trump would have a lot more credibility if they acknowledged this obvious fact). Steve Bannon, Steve King, and Ann Coulter, to name a few, are more or less open White Supremacists, and as such are existential threats to the American creed of equality under the law. Donald Trump was someone everyone put in this category right up until he became the Republican standard-bearer ("Much of the conservative movement has spent the last two years slowly transitioning from "it's an outrageous slander to say that a racist cartoon character like Donald Trump represents the conservative movement" to "it's an outrageous slander to say that the American conservative movement is 'racist' or 'cartoonish' just because it adopted Donald Trump as its representative.").
Honestly, the best argument for keeping this group out of the #1 slot is that "angry" might not accurately capture my sentiments. I'm "angry" at people I harbor any expectation of good behavior from. I can't even spare anger towards these people. They're nothing but an enemy that must be crushed.
(2) The Conservative "Intelligentsia". One of the more depressing facts of motivated cognition is that it is more effective in persons who are smarter and/or factually informed. They more intellectually adroit you are, the easier it is to tie yourself into pretzels to justify the unjustifiable and to equate the non-equivalent. The conservative brain trust has and continues to expend their significant intellectual firepower on ever-more convoluted apologias for the movement they're a part of and the politics that they practiced. They know better, they're generally not in office so they face no electoral pressure or backlash -- they're just that devoted to selling out. There is a special promotion (call them slot #1.5) for the subset that spends 1% of their column blandly asserting that "this isn't to say I support Trump," then demands credit for it even though literally nothing else they do attempts to block or undermine his support in any significant way. Also, anybody who responds to the latest Trump outrage by wailing "but OBAMA!!!!!!" on social media is automatically an honorary member of this group. "Honorary" because most of those people could in no way be deemed part of any "intelligentsia" -- so we'll give them slot #2.5.
(3) MINOs. Moderates in name only. A commenter on Lawyers, Guns and Money described a moderate Republican Senator as one who "talks about voting against Republicans before voting with Republicans." Amen to that. Susan Collins has made her whole career on that sleight of hand -- supporting every GOP filibuster and obstruction and policy objective while occasionally being kind of angsty about it. Nobody this side of Paul Ryan has a reputation so far removed from her actual concrete voting record, and it's disgusting. She's voting nay on DeVos, though (even as she voted in her favor in committee). If Susan Collins thinks not approving a plagiarist as Secretary of Education makes up for years upon years of being a down-the-line GOP vote, she's got another thing coming.
(4) "I Can't Believe the Leopards Ate My Face!" "I voted for you, Mr. Trump -- how could you do the horrible thing that was exactly what you said you'd do if I voted for you?" Oh really? Turns out, taking Trump literally was taking him seriously. I'll still fight to get your healthcare back, let your family back into the country, preserve your control over your own body -- whatever hobbyhorse suddenly made you realize that "I just want to a send a message to Washington" isn't the best way of choosing the leader of the free world -- but if anyone deserves to experience the full brunt of right-wing pain it's this group.
(5) The Fallen Angels. At various points throughout the last election cycle (primary and general), various conservatives went out of their way to boldly declare that they would not allow Donald Trump to subvert the basic fabric of our democratic and constitutional structure, that they would provide oversight, that they would ask tough questions, that they would ensure that checks and balances would be a reality and not a dead letter. Some of them -- back when Trump's defeat seemed inevitable -- even indicated they might not vote for them. Virtually all of them have come crawling back into his corner, and have more or less backed him to a hilt ever since. Some check. This group would rank higher if I ever had more than a fleeting belief they'd actually follow through.
(6) The Elder Statesmen. Some of the greybeards in the Senate are very concerned with tradition. With comity. With rules. With bipartisan respect. They are gravely worried at the potential flouting of norms which kept government from being simply a partisan aff-- wait, some of those rules might interfere with the right-wing agenda? Poof -- away they go (what's the over/under on the survival of a Supreme Court filibuster if Democrats try it on Gorsuch? A week?)! Now, where were we? Oh, right: "Blocking an unquestionably qualified judicial nominee simply because one does not think the current President should fill the seat would violate a Senate tradition that has been the rule for 0 consecutive years!"
(7) The Rank-and-File. Foot soldiers, mostly. Still contemptible, but at least they were consistent. Well, except with respect to ethics in government. And federalism. And limited government. And the filibuster. And belief in objective facts about reality.
(8) The Honest Resistance. I can count this group maybe on one hand, but there are people who are genuinely appalled for genuinely conservative reasons at the direction Donald Trump is taking the country. What is essential about being a member of this group is that it takes responsibility for the direction of its own party. It's not the Democrats fault, it's not Obama's fault, it's not the fault of mean protesters or silly left-wing course syllabi. If Republicans are going off the rails, that's a Republican problem that demands that Republicans take ownership over fixing it. In the short term, that's going to mean taking some serious lumps and doing things that make it harder to win elections and get even legitimate conservative policies passed. I wish them the best of luck, but I'm highly dubious of their success.
(N/R) The ones who are now Democrats. See #8. Unless you're willing to own your party, GTFO of it.
That includes me. There are a lot of types of conservatives. and I'm furious with just about all of them right now, because just about all of them are -- in their own special way -- abdicating basic duties to their country with scarcely a nod to the putative principles they endorse. That said, there are gradients. So, for your cathartic pleasure, here is how I rank the different types of conservatives -- from most to least infuriating.
(1) Racist Republicans. We can debate until we're blue in the face just what proportion of Republicans are racist, or whether any person who backs Donald Trump can claim to be "anti-racist" with a straight face. But no matter how that discussion shakes out, there are clearly conservatives right now who are unquestionable bigots (and incidentally, those conservatives who are aghast that anyone would call them a bigot for voting Donald Trump would have a lot more credibility if they acknowledged this obvious fact). Steve Bannon, Steve King, and Ann Coulter, to name a few, are more or less open White Supremacists, and as such are existential threats to the American creed of equality under the law. Donald Trump was someone everyone put in this category right up until he became the Republican standard-bearer ("Much of the conservative movement has spent the last two years slowly transitioning from "it's an outrageous slander to say that a racist cartoon character like Donald Trump represents the conservative movement" to "it's an outrageous slander to say that the American conservative movement is 'racist' or 'cartoonish' just because it adopted Donald Trump as its representative.").
Honestly, the best argument for keeping this group out of the #1 slot is that "angry" might not accurately capture my sentiments. I'm "angry" at people I harbor any expectation of good behavior from. I can't even spare anger towards these people. They're nothing but an enemy that must be crushed.
(2) The Conservative "Intelligentsia". One of the more depressing facts of motivated cognition is that it is more effective in persons who are smarter and/or factually informed. They more intellectually adroit you are, the easier it is to tie yourself into pretzels to justify the unjustifiable and to equate the non-equivalent. The conservative brain trust has and continues to expend their significant intellectual firepower on ever-more convoluted apologias for the movement they're a part of and the politics that they practiced. They know better, they're generally not in office so they face no electoral pressure or backlash -- they're just that devoted to selling out. There is a special promotion (call them slot #1.5) for the subset that spends 1% of their column blandly asserting that "this isn't to say I support Trump," then demands credit for it even though literally nothing else they do attempts to block or undermine his support in any significant way. Also, anybody who responds to the latest Trump outrage by wailing "but OBAMA!!!!!!" on social media is automatically an honorary member of this group. "Honorary" because most of those people could in no way be deemed part of any "intelligentsia" -- so we'll give them slot #2.5.
(3) MINOs. Moderates in name only. A commenter on Lawyers, Guns and Money described a moderate Republican Senator as one who "talks about voting against Republicans before voting with Republicans." Amen to that. Susan Collins has made her whole career on that sleight of hand -- supporting every GOP filibuster and obstruction and policy objective while occasionally being kind of angsty about it. Nobody this side of Paul Ryan has a reputation so far removed from her actual concrete voting record, and it's disgusting. She's voting nay on DeVos, though (even as she voted in her favor in committee). If Susan Collins thinks not approving a plagiarist as Secretary of Education makes up for years upon years of being a down-the-line GOP vote, she's got another thing coming.
(4) "I Can't Believe the Leopards Ate My Face!" "I voted for you, Mr. Trump -- how could you do the horrible thing that was exactly what you said you'd do if I voted for you?" Oh really? Turns out, taking Trump literally was taking him seriously. I'll still fight to get your healthcare back, let your family back into the country, preserve your control over your own body -- whatever hobbyhorse suddenly made you realize that "I just want to a send a message to Washington" isn't the best way of choosing the leader of the free world -- but if anyone deserves to experience the full brunt of right-wing pain it's this group.
(5) The Fallen Angels. At various points throughout the last election cycle (primary and general), various conservatives went out of their way to boldly declare that they would not allow Donald Trump to subvert the basic fabric of our democratic and constitutional structure, that they would provide oversight, that they would ask tough questions, that they would ensure that checks and balances would be a reality and not a dead letter. Some of them -- back when Trump's defeat seemed inevitable -- even indicated they might not vote for them. Virtually all of them have come crawling back into his corner, and have more or less backed him to a hilt ever since. Some check. This group would rank higher if I ever had more than a fleeting belief they'd actually follow through.
(6) The Elder Statesmen. Some of the greybeards in the Senate are very concerned with tradition. With comity. With rules. With bipartisan respect. They are gravely worried at the potential flouting of norms which kept government from being simply a partisan aff-- wait, some of those rules might interfere with the right-wing agenda? Poof -- away they go (what's the over/under on the survival of a Supreme Court filibuster if Democrats try it on Gorsuch? A week?)! Now, where were we? Oh, right: "Blocking an unquestionably qualified judicial nominee simply because one does not think the current President should fill the seat would violate a Senate tradition that has been the rule for 0 consecutive years!"
(7) The Rank-and-File. Foot soldiers, mostly. Still contemptible, but at least they were consistent. Well, except with respect to ethics in government. And federalism. And limited government. And the filibuster. And belief in objective facts about reality.
(8) The Honest Resistance. I can count this group maybe on one hand, but there are people who are genuinely appalled for genuinely conservative reasons at the direction Donald Trump is taking the country. What is essential about being a member of this group is that it takes responsibility for the direction of its own party. It's not the Democrats fault, it's not Obama's fault, it's not the fault of mean protesters or silly left-wing course syllabi. If Republicans are going off the rails, that's a Republican problem that demands that Republicans take ownership over fixing it. In the short term, that's going to mean taking some serious lumps and doing things that make it harder to win elections and get even legitimate conservative policies passed. I wish them the best of luck, but I'm highly dubious of their success.
(N/R) The ones who are now Democrats. See #8. Unless you're willing to own your party, GTFO of it.
Tuesday, January 31, 2017
Canadian Trade School Announces, Retracts Ban on Israeli Students
The Island School of Building Arts in British Columbia rejected the application of an Israeli student who wished study woodworking at the school.
According to emails obtained by the Jerusalem Post, the school says flatly that it was "not accepting applications from Israel" "due to the conflict and illegal settlement activity." In further correspondence, a school official expressed regret but contended that "This is a question of staying in line with our moral compass, which will always be important to us. We are still inclusive and cannot support that which is not inclusive."
After the story became known, B'nai Brith Canada interceded and the school backed off with apologies. As B'nai Brith observes, it is illegal in BC to discriminate on basis of national origin.
In conclusion, the BDS movement targets institutions, not individuals.
Monday, January 30, 2017
Maybe the Head of the World Jewish Congress Should Actually Represent Jews?
Donald Trump's Holocaust memorial statement did not mention Jews. This was no oversight; the administration insists it did it deliberately.
Most Jewish groups are incensed, and rightfully so. There is a grand total of one Jewish group that has decided to have Trump's back on this.
It isn't the craven Republic Jewish Coalition.
It isn't the risible Zionist Organization of American (though they are the only Jewish group of note backing Trump's refugee ban).
It is the World Jewish Congress, under the leadership of Trump friend and ally Ron Lauder. They released a statement attacking pretty much the entire Jewish community minus them as "play[ing] politics." Specifically, Lauder wrote that "There is enough real anti-Semitic [sic] and there are enough true threats facing the Jewish people today. Our community gains nothing if we reach a point where manufactured outrages reduce public sensitivity to the real dangers we confront."
This is not the first time that Lauder has decided to give Team Trump a "abuse-the-Holocaust-free" pass. They also immediately came out in support of David Friedman's nomination as Ambassador to Israel, in spite of Friedman's grotesquely antisemitic comparison of Jewish J Street members to kapos -- Nazi collaborators.
The WJC's motto is "All Jews are responsible for one another." The WJC no longer lives out that commitment, and that lies at Ron Lauder's feet. It won't back liberal Jews when they're subjected to vicious antisemitic smears by conservatives, and it won't defend any Jews when they're spurned by Donald Trump. So what good is the WJC?
Three-quarters of American Jews voted against Donald Trump. It is not too much to ask that our communal organizations be representative of actual Jewish viewpoints. If Lauder wants to prioritize friendship with his college buddy over being responsible for Jewish safety and being responsive to Jewish concerns, that his prerogative -- but then he has no business being at the helm of a substantial Jewish organization.
As a Jewish leader, Ronald Lauder is a disgrace. He needs to go.
Most Jewish groups are incensed, and rightfully so. There is a grand total of one Jewish group that has decided to have Trump's back on this.
It isn't the craven Republic Jewish Coalition.
It isn't the risible Zionist Organization of American (though they are the only Jewish group of note backing Trump's refugee ban).
It is the World Jewish Congress, under the leadership of Trump friend and ally Ron Lauder. They released a statement attacking pretty much the entire Jewish community minus them as "play[ing] politics." Specifically, Lauder wrote that "There is enough real anti-Semitic [sic] and there are enough true threats facing the Jewish people today. Our community gains nothing if we reach a point where manufactured outrages reduce public sensitivity to the real dangers we confront."
This is not the first time that Lauder has decided to give Team Trump a "abuse-the-Holocaust-free" pass. They also immediately came out in support of David Friedman's nomination as Ambassador to Israel, in spite of Friedman's grotesquely antisemitic comparison of Jewish J Street members to kapos -- Nazi collaborators.
The WJC's motto is "All Jews are responsible for one another." The WJC no longer lives out that commitment, and that lies at Ron Lauder's feet. It won't back liberal Jews when they're subjected to vicious antisemitic smears by conservatives, and it won't defend any Jews when they're spurned by Donald Trump. So what good is the WJC?
Three-quarters of American Jews voted against Donald Trump. It is not too much to ask that our communal organizations be representative of actual Jewish viewpoints. If Lauder wants to prioritize friendship with his college buddy over being responsible for Jewish safety and being responsive to Jewish concerns, that his prerogative -- but then he has no business being at the helm of a substantial Jewish organization.
As a Jewish leader, Ronald Lauder is a disgrace. He needs to go.
Sunday, January 29, 2017
Justice Accused: The Virtues of Foot-Dragging
News reports saying that judges have "stayed" Donald Trump's executive order banning immigration from several Muslim-majority countries, as well as a temporary halt to all refugees, are somewhat misleading. The stay only applies to the narrow class of individuals who are currently in the US but being detained at the airport -- basically, those persons who were in the air at the time of the order. Persons who had valid visas but remain abroad -- whether it is green card holders seeking to return home or refugees awaiting their flight to safety -- are not covered.
The question I have is whether any judge will enjoin that portion of the order -- the one currently blocking valid visa holders abroad from coming to the United States.
It's a tough sell legally. Courts have been reluctant to enforce constitutional rights outside of American soil. In general, a person in a German or Syrian airport has no rights an American court is capable of enforcing. Add that to the "plenary powers" doctrine, which suggests that the federal government has virtually untrammeled power over immigration, and the legal case looks grim. Hence we have precedents that say that the United States can exclude immigrants based solely on nationality -- even though such discrimination would be clearly unconstitutional in a "normal", on-American-soil case. And that's a good thing for Trump, given that his advisors have publicly stated that the order he promulgated was deliberately designed with anti-Muslim sentiment in mind.
Yet one could argue that the cases which explicitly allow such discrimination predate the judiciary's modern jurisprudence on matters of race and other "like" identities. Our presumption against permitting laws which are motivated by, or discriminate on basis of, racial, ethnic, religious, or national-origin concerns are much stronger than they were back when the Court was upholding the Chinese Exclusion Act.
Is this a winning argument? I'm honestly dubious, though I'd submit that it isn't frivolous. But let's say it's wrong. What if a district court judge nonetheless accepted it, and issued a stay prohibiting American officials abroad from enforcing the order as against persons who had hitherto valid visas? Eventually, she'd probably be reversed -- something that happens to district court judges on the regular. In the meantime, perhaps some more refugees would be able to get on flights in the ensuing confusion. Some more people who we could save, would be.
Robert Cover's book Justice Accused deals with abolitionist judges tasked with enforcing the Fugitive Slave Act -- what strategies did they take? How did they manage their competing commitments to their deep moral principles and the formal legal structure they were embedded in? A similar situation was faced by consular officials during the Holocaust -- the heroes were those who kept issuing visas to Jewish refugees even when they lacked authorization from their home governments. Their victory was not that they eventually "won" in the formal legal sense; they did not persuade their superiors to adopt a different view. Their victory was that in dragging their feet a little longer, in kicking up that extra bit of dust, a few more people were saved than otherwise would have been.
The challenges being launched now might not change immigration or constitutional law to protect against Donald Trump's predations. It is worth stressing that in a democratic state, the fundamental responsibility for maintaining a just state lies with the people in their democratic capacity -- if judges cannot or will not bail us out, the wrong still primarily lies with us, not them. Judges are not cure-alls for our own democratic failures. But between now and the final decision, they still have a role to play as bureaucrats capable of doing what bureaucrats do best: dragging their feet and gumming up the works. It's not the heroism we want. But it may be the heroism we need.
The question I have is whether any judge will enjoin that portion of the order -- the one currently blocking valid visa holders abroad from coming to the United States.
It's a tough sell legally. Courts have been reluctant to enforce constitutional rights outside of American soil. In general, a person in a German or Syrian airport has no rights an American court is capable of enforcing. Add that to the "plenary powers" doctrine, which suggests that the federal government has virtually untrammeled power over immigration, and the legal case looks grim. Hence we have precedents that say that the United States can exclude immigrants based solely on nationality -- even though such discrimination would be clearly unconstitutional in a "normal", on-American-soil case. And that's a good thing for Trump, given that his advisors have publicly stated that the order he promulgated was deliberately designed with anti-Muslim sentiment in mind.
Yet one could argue that the cases which explicitly allow such discrimination predate the judiciary's modern jurisprudence on matters of race and other "like" identities. Our presumption against permitting laws which are motivated by, or discriminate on basis of, racial, ethnic, religious, or national-origin concerns are much stronger than they were back when the Court was upholding the Chinese Exclusion Act.
Is this a winning argument? I'm honestly dubious, though I'd submit that it isn't frivolous. But let's say it's wrong. What if a district court judge nonetheless accepted it, and issued a stay prohibiting American officials abroad from enforcing the order as against persons who had hitherto valid visas? Eventually, she'd probably be reversed -- something that happens to district court judges on the regular. In the meantime, perhaps some more refugees would be able to get on flights in the ensuing confusion. Some more people who we could save, would be.
Robert Cover's book Justice Accused deals with abolitionist judges tasked with enforcing the Fugitive Slave Act -- what strategies did they take? How did they manage their competing commitments to their deep moral principles and the formal legal structure they were embedded in? A similar situation was faced by consular officials during the Holocaust -- the heroes were those who kept issuing visas to Jewish refugees even when they lacked authorization from their home governments. Their victory was not that they eventually "won" in the formal legal sense; they did not persuade their superiors to adopt a different view. Their victory was that in dragging their feet a little longer, in kicking up that extra bit of dust, a few more people were saved than otherwise would have been.
The challenges being launched now might not change immigration or constitutional law to protect against Donald Trump's predations. It is worth stressing that in a democratic state, the fundamental responsibility for maintaining a just state lies with the people in their democratic capacity -- if judges cannot or will not bail us out, the wrong still primarily lies with us, not them. Judges are not cure-alls for our own democratic failures. But between now and the final decision, they still have a role to play as bureaucrats capable of doing what bureaucrats do best: dragging their feet and gumming up the works. It's not the heroism we want. But it may be the heroism we need.
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