Fifth Circuit denies stay of the injunction against Obama’s executive amnesty

A panel of the Fifth Circuit Court of Appeals has denied the Obama administration’s motion to stay the preliminary injunction against implementation of its Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) pending appeal. The Court also declined to narrow the injunction’s scope. As readers will recall, Judge Hanen issued the injunction on the view that the government is likely to lose the lawsuit challenging DAPA

The Court of Appeals denied the government’s motion because it concluded that “the government is unlikely to succeed on the merits of its appeal of the injunction.” The decision was 2-1, with the Republican appointed judges voting to affirm and the Obama appointed judge voting to reverse.

The opinions are here. The majority, per Judge Smith, undertakes a long, persuasive slog through the factors that apply when a party seeks to stay an injunction pending appeal. As such, there is no single “money quote.”

The majority’s discussion of “prosecutorial discretion” — the basis upon which Team Obama purports to justify granting amnesty and eligibility for benefits to millions of illegal immigrants — is illuminating, though. Here is what Judge Smith had to say about this issue:

Some features of DAPA are similar to prosecutorial discretion: DAPA amounts to the Secretary’s decision—at least temporarily— not to enforce the immigration laws as to a class of what he deems to be low-priority aliens.

If that were all DAPA involved, we would have a different case. DAPA’s version of deferred action, however, is more than nonenforcement: It is the affirmative act of conferring “lawful presence” on a class of unlawfully present aliens. Though revocable, that new designation triggers eligibility for federal and state benefits that would not otherwise be available.

“[A]lthough prosecutorial discretion is broad, it is not ‘unfettered.’” Declining to prosecute does not convert an act deemed unlawful by Congress into a lawful one and confer eligibility for benefits based on that new classification. Regardless of whether the Secretary has the authority to offer
those incentives for participation in DAPA, his doing so is not shielded from judicial review as an act of prosecutorial discretion.67 And as shown above, neither the preliminary injunction nor compliance with the APA requires the Secretary to prosecute deportable aliens or change his enforcement priorities.

This logic seems unassailable. Unless you’re a partisan, I don’t see how you reject it.

The Justice Department is said to be “reviewing its options.” They include attempting to get the full Fifth Circuit to reconsider the panel’s ruling.

Both the State of Texas and the Obama administration have signaled their willingness to take the case to the Supreme Court. That Court would be unlikely to decide it until 2016 — a presidential election year.

Another option would be simply to wait for a full hearing of the government’s appeal of the district court’s underlying decision, which is scheduled for July. Jonathan Adler says, however, that this appeal will be heard by same panel rendered today’s decision, which provides “a fairly good indication of how the court is likely to rule.”

I’m not personally up-to-date with the Fifth Circuit anymore, but it is said to a be pretty conservative court. Thus, Adler believes the Obama administration might well proceed directly to the Supreme Court.

We will probably have more to say about today’s decision, including perhaps the dissent.

Venezuela Circles the Drain

We have chronicled the accelerating decline of Venezuela’s economy under its narco-socialist rulers. When a country can neither produce nor buy toilet paper, you know the end is approaching. Now, Venezuela’s international reserves are disappearing, as its currency implodes. Dimitra DeFotis reports at Barron’s:

Russ Dallen, who contributes to a newsletter for investors, and writes about Latin America, writes today that “Venezuela’s situation continues to unravel at increasing speed as the bolivar tumbled 30% over just the last week, while the country’s international reserves simultaneously hit a new 12-year low, closing at $17.5 billion.” He says the weak currency and decline in reserves means the country is “essentially running on fumes.” He writes:

“Venezuela’s reserves have now fallen 21% since the beginning of the year, but more importantly $6.7 billion from their high just 2 months ago – a high that not only included $2.8 billion from mortgaging Citgo, $1.9 billion from the selling of $4 billion of oil receivables from the Dominican Republic, and the transfer of previously unreported China Fonden funds into the reserves.”

Venezuela’s regime is long past eating its seed corn; now it’s selling the furniture. Will Maduro’s government default on the country’s debt, some of which carries 30% interest? Moody’s rates Venezuelan debt as “speculative and subject to very high credit risk.”

We believe the sovereign will likely be able to close its 2015 external funding gap. Nevertheless, should oil prices remain at current levels through 2016, the sovereign could run down its external assets, heightening the probability of a default despite the authorities’ strong willingness to meet debt payments…

Total international reserves have fallen steeply in recent months, to $17.9 billion in mid-May, their lowest level since 2003.

The IMF is helping to keep Venezuela’s economy afloat, and if oil prices rise, the Maduro regime might be able to buy a little more time. But the end game is obvious: economic collapse.

Hollywood’s Chavez/Maduro acolytes haven’t been heard from for a while, have they? Maybe Sean Penn would like to contribute some much-needed hard currency to Venezuela’s coffers. Just kidding. More likely, the Hollywood left would join Maduro in blaming Venezuela’s decline on “wreckers” and “saboteurs.” But the only wrecker is socialism, and the only saboteurs are the leftist elite who suck out the country’s remaining wealth.

STEVE adds: I have been meaning to post this piece (PDF file) from economist Steve Hanke of the University of Maryland and the Cato Institute, which tells the same story and has some nifty charts showing Venezuela’s precipitous decline. Hanke reports:

I estimate Venezuela’s annual inflation rate at 335%. That’s the highest rate in the world. For those holding bolivars, it amounts to: “no rule of law, bad money.” It is worth noting that currency debasement and inflation robbery were not always the order of the day in Caracas. During the decade of the 1950s, the average annual inflation rate was only 1.7% — not much above Switzerland’s.

In the 1960s, inflation in Venezuela fell to a 1.2% average annual rate. It wasn’t until the 1980s that Venezuela experienced a decade of double-digit annual inflation. Today, inflation, contrary to the official numbers and amateur estimates, has soared well into triple-digit territory.

The Law of Unintended Consequences Hits Liberals Again

We’ve noted here many times the economic illiteracy of the minimum wage, and even the media are picking up on the perverse effects the $15 minimum wage is having on low-margin businesses such as San Francisco comics shops or fast food restaurants installing touch screens to replace counter clerks (and how long before we have robotic burger flippers?), but this won’t deter liberals.

When I explain to students the 1923 case of Adkins v. Children’s Hospital, the case where the Supreme Court rightly struck down Washington DC’s minimum wage, it is easy to get students to realize that the standard line about this case—that it is an example of an ideological Court in thrall to some cartoonish laissez faire doctrine of unlimited individual liberty—is completely wrong. For one thing, the minimum wage only applied to women, in occupations such as operating a hotel elevator that were not in any way hazardous to their health or safety, thus failing the “police power” test that upheld many other kinds of labor regulations going back into the 19th century. The effect of having a minimum wage for women but not for men was obvious—it resulted in the loss of employment opportunities for women, since you could hire a man for the same job at half the cost. (It is amusing, by the way, to watch liberals and especially feminist legal scholars strain to attack a ruling that upheld women’s equality in the workplace. The contortions are fantastic and hilarious.) This is no more than a price-fixing law, the Court ruled. (For more from the opinion, see below.*)

This is all a long preface to a story in today’s New York Times about how—surprise, surprise!—politically-mandated “family friendly” policies are backfiring everywhere, and reducing wages and employment opportunities for women:

In Chile, a law requires employers to provide working mothers with child care. One result? Women are paid less.

In Spain, a policy to give parents of young children the right to work part-time has led to a decline in full-time, stable jobs available to all women — even those who are not mothers.

Elsewhere in Europe, generous maternity leaves have meant that women are much less likely than men to become managers or achieve other high-powered positions at work.

Family-friendly policies can help parents balance jobs and responsibilities at home, and go a long way toward making it possible for women with children to remain in the work force. But these policies often have unintended consequences.

Heck, a “conservative jurist” from the 1920s could have told you this. More:

Unlike many countries, the United States has few federal policies for working parents. One is the Family and Medical Leave Act of 1993, which provides workers at companies of a certain size with 12 weeks of unpaid leave.

Women are 5 percent more likely to remain employed but 8 percent less likely to get promotions than they were before it became law, according to an unpublished new study by Mallika Thomas, who will be an assistant professor of economics at Cornell University. She attributed this partly to companies that don’t take a chance on investing in the careers of women who might leave. “The problem ends up being that all women, even those who do not anticipate having children or cutting back in hours, may be penalized,” she said.

I’m sure liberals will follow the evidence here. Settled science, and all that.

* More from Justice George Sutherland’s majority opinion in Adkins:

But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case has continued “with diminishing intensity.” In view of the great—not to say revolutionary—changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships. In passing, it may be noted that the instant statute applies in the case of a woman employer contracting with a woman employee as it does when the former is a man.

Gosh, sounds almost like someone from NOW wrote this. Moreover, this reminds me of a lesson students also take to: it actually pays to read complete Supreme Court opinions, rather than swallowing the gross mischaracterizations that appear in superficial liberal textbooks.

Min Wage Replacements copy

Debating the death penalty

With the left (and some conservatives) now intently focused on vastly reducing the prison population and curbing the police, the attention of the “civil rights” movement has shifted away from the death penalty. African-Americans encounter the police and our prisons every day; executions are rare.

But more thoughtful, less agenda-driven observers remain focused on the death penalty. George Will argued against it last week. The Washington Post’s editors do so today.

I find it difficult to debate the death penalty. For me, the issue comes down to whether one’s sensibilities (ethical or aesthetic, take your pick) are more offended by the state taking a life or by a cold-blooded murderer (let’s say Dzhokhar Tsarnaev, to take an extreme case) not having his life taken. These days, the latter scenario bothers me more, but I can’t refute those who are more bothered by the former.

There are, to be sure, empirical issues that can be debated. They include the extent to which today’s sparing use of the death penalty deters murderers and the degree of the risk that the sparingly applied death penalty will take the life of anyone later determined to be innocent. I don’t find these issues dispositive, but others might well.

Bill Otis has no difficulty debating the death penalty; in my estimation, he does it brilliantly. His response to George Will is an excellent example. Here is most of Bill’s argument:

Will, often and astutely a fan of history, tells us that, by imposing the death penalty, democratic government is asserting “majesty” and “infallibility.” It is asserting neither.

George Washington — known for, among many other things, turning down majesty — not only supported but used capital punishment, as did Lincoln and FDR. It remains on the books today, as it has for all but four years of our distinctly non-regal history, not because Americans think the government is majestic, but because the people themselves overwhelmingly support it. According to Gallup, 60% or more of the public has supported the death penalty for 40 straight years.

And no one takes the government to be infallible. No one thought it infallible (merely plainly in the right) when the government declared wars, including WWII, that killed exponentially more people, and exponentially more innocent people, than the death penalty ever has. We fought, knowing in advance that thousands would die — many of them adventitiously or from sheer stupidity or mistake — because the nation judged it worth the candle.

That is the test Will misses. The question is not whether X government program is infallible. The question is whether, knowing that it (and all other fallibility) cannot be escaped, the risk of error is so small and the reward to justice so large (as with Tsarnaev and McVeigh) that the benefits are worth the risks.

Much of this answers Will’s next objection — that if we execute an innocent man, the error is irretrievable. That is true, of course, but if (for example) we continue to travel by train, innocent people are certain to die, as they did two weeks ago, and just as irretrievably.

No one suggests, however, that we give up train travel, although it unlike justice is merely a convenience. What they suggest is that we do what we can to make it safer. They propose this although the improvements are likely to cost a lot of money and still won’t make it infallibly safe.. . .

[I]n public policy, everything is a matter of balance — balancing costs, benefits, and trade-off’s. Surprisingly, Will seems to miss this entirely, and thus seems to take the possibility of executing an innocent person as an absolute barrier to capital punishment, rather than merely an extremely serious cost.

Finally, Will points to not a single execution of an innocent person in the last fifty years. That’s because, so far as any neutral authority had been able to determine with any degree of assurance, there has been none. That does not make the risk of executing an innocent disappear, but it does make it vanishingly small.

The deterrent value of the death penalty is much debated; the majority of (but not all) studies say that it does have deterrent value, although (as Will correctly points out) not as much as it would if imposed more frequently.

But to say that it would have more deterrent value if imposed more often is an odd argument that it should not be imposed at all. It also simply walks past the two more frequently cited reasons in its favor: That, for some especially grotesque murders, it’s the only punishment that fits the crime; and that it’s the only certain means of incapacitating the killer.

Will does not discuss, for example, what we are to do with a psychopath who kills once, is given a life term in prison, then kills a guard in an escape attempt (or a prisoner from a rival gang, or some weaker inmate who refuses sexual favors). Just as there is no infallible judicial process, there is no infallible prison security. What is the just punishment in such a case? Loss of canteen privileges?

In my opinion, the death penalty is the just punishment in these and certain other cases.

Secretary Carter lauds the boss

We doubt that President Obama is a great leader in the defense of the national security of the United States, and the evidence supporting our doubt is abundant. In the Middle East, we see Iran asserting its power from Iraq and Yemen to Syria and Lebanon. We see ISIS on the march. We see al Qaeda and its affiliates expanding their forces. Elsewhere in the world, we see China and Russia presenting threats to our friends in the area of each. All these developments pose serious national security threats to the United States, threats whose seriousness continues to increase.

Adding to the evidence is Obama’s recent commencement speech to the graduates of the Coast Guard Academy. In the address Obama identified “climate change” (f/k/a “global warming”) as the great national security threat of our time. Obama briefly mentioned the threat of terrorism. He had not come to talk about terrorism or any other of the pressing threats that confront us around the world. The climate, it is a changin’.

Secretary of Defense Ashton Carter addressed the doubters in his Memorial Day remarks at Arlington Cemetery. Carter said “troops of such caliber demand great leaders, and there’s no doubt they have one in our commander in chief.”

“I see that every day,” he added. “He knows well the challenges we must face, the obligations we must meet, and the opportunities we must seize in order to keep our nation safe and to make a better world for our children. And I see that he cares deeply about the safety, welfare, and dignity of our men and women in uniform and their families.”

Secretary Carter is a perceptive man. He must realize how widely shared our doubts are among the troops and the resulting need for reassurance. Reassurance, however, usually comes from deeds, not words, especially not words from an appointee in praise of his own boss. That the words need to be said should be a cause of dismay to, if not introspection by, Obama. That they won’t be is another story.

Via Bridget Johnson/PJ Media.

Let’s call the whole thing off

The starting point of statutory construction is the language of the statute itself. If the words of a statute are clear, they are to be construed according to their plain meaning. See generally Yule Kim, Statutory Interpretation: General Principles and Recent Trends (Congressional Research Service, 2008). If the words of a statue are ambiguous, a court may resort to legislative history and other devices to construe it. The Supreme Court has demonstrated that it can do whatever it wants and has said just about as much on occasion in the past.

The case of King v. Burwell pending before the Supreme Court raises a question of statutory construction regarding the phrase “established by the state.” The IRS has disregarded the words in promulgating the regulation making Obamacare subsidies available in exchanges established by the federal government for states that have declined to establish them as well as states that have established them under duly enacted state law. I wrote about the case briefly in “Triumph of the leftist will.” Documents filed in the case have been compiled by the Competitive Enterprise Institute here.

New York Times reporter Robert Pear now turns to the question before the Court in his New York Times story “Four words that imperil health care law were all a mistake, writers now say.” In his first sentence Pear begins with the proposition that the words “established by the state” are ambiguous, which rigs the game. In a sense, under traditional rules of statutory construction, Pear begs the question, assuming what is to proved. What part of “state” don’t you understand?

Pear nevertheless creates ambiguity by treating various Senators as authors of the 2,000 page bill and therefore authorities on its meaning. The first to whom he turns is former Maine Senator Olympia Snowe, who voted against the Obamacare bill enacted by Congress. I don’t think there is any theory of statutory construction that would make Snowe an authority under these circumstances, but that doesn’t stop Pear. Pear quotes Snow: “I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies.”

Snowe had more such helpful commentary for Pear: “It was never part of our conversations at any point.” A reasonable person might conclude at this point that there is no illumination to be shed by Snowe on the question, but neither Snowe nor Pear thinks so. Snowe asked a rhetorical question: “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” Well, Senator Snowe, you voted against the bill. Why did you want to deny the whole country the benefits of Obamacare?

Pear doesn’t go there. Rather, he quotes Snowe further. The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”

Snowe only provides the comic opening to Pear’s long, nervous article. He has much more. One resource to whom Pear does not turn, however, is Jonathan Gruber. Gruber is conspicuous by his absence.

Congress said exchanges “established by the state.” Pear’s sources say “drafting error” or “oversight” or “accident.” I say let’s call the whole thing off. The Supreme Court will have its say before the end of its current term on June 30.

Return to Stephanopoulos

George Stephanopoulos acted as an advocate for the Clintons and the Clinton Foundation when Peter Schweizer appeared to discuss his book Clinton Cash on This Week with the Democratic Operative. I noted Stephanopoulos’s absurd pose that Sunday in “For the Clinton defense.”

Subsequent reporting by the Washington Free Beacon’s Andrew Stiles dug out Stephanopoulos’s undisclosed contributions to the Clinton Foundation. Asked for comment by Stiles when the story was ready to go, ABC News kept the Free Beacon hanging and leaked the story to Politico media reporter/blogger Dylan Byers, who ludicrously credited Stephanopoulos with disclosing the contributions. The episode showed Stephanopoulos at work doing damage control on his own behalf in the style of a campaign operative. He had plenty of experience doing it for Bill Clinton himself. I last wrote about this series of events in “Weasel words from a weasel.”

Former New York Times media reporter Brian Stelter has succeeded to Howard Kurtz’s seat as the host of CNN’s Reliable Sources media show. Stelter is a knowledgeable reporter and good at what he does.

This past Sunday Stelter invited Free Beacon editor Matt Continetti to review the Free Beacon’s role in breaking the Stephanopoulos/Clinton Foundation story. Stelter drew out the elements worthy of note and let Matt do the talking. This is an excellent interview (video below).

This outrage has come to rest in a state of repose conducive to Stephanopoulos continuing the charade at ABC News. ABC News has calculated the angles and has apparently decided to let it ride.

The mainstream media adjunct of the Democratic Party is not loosening its grip at ABC News or anywhere else among the mainstream media. It’s time for Stephanopoulos to go, if only to help them keep up the pretense that they are something other than what they are. ABC News, however, must not see it that way. I therefore appreciate the opportunity afforded by Stelter’s interview of Continetti to return to this illuminating story.