Tuesday, July 7, 2020

Fauci: We're surging back up, a serious situation to be addressed immediately

Appeals Court Strikes Down Trump Administration’s Asylum Ban - The New York Times

President Trump at a portion of the border wall in San Luis, Ariz., last month.
One of the Trump administration's harshest steps to block applicants for asylum  - a statutory and treaty obligation of the United States - has been repudiated by the United States Court of Appeals for the Ninth Circuit.  The rule at stake here is the "third country bar rule".  That measure - which has no basis in statute - effectively bars asylum applications by aliens.   District Judge John S. Tigar and 9th Circuit orders blocking Trump's efforts have been stayed by the United States Supreme Court.  Sonia Sotomayor bitterly complained of such measures by the Supreme Court majority.  - gwc
Appeals Court Strikes Down Trump Administration’s Asylum Ban - The New York Times
by Miriam Jordan

LOS ANGELES — A federal appeals court on Monday struck down President Trump’s policy that barred most migrants from seeking asylum in the United States if they had passed through another country, concluding that the government did “virtually nothing” to make sure that another country is “a safe option” for those fleeing persecution.

[In East Bay Sanctuary Covenant v. Barr] a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco affirmed the decision of a federal judge [Jon S. Tigar] who ruled last year that the so-called third-country transit rule was unlawful, with one judge calling it “perhaps the most significant change to American asylum in a generation.”

The ruling was an interim but important step. In September, the Supreme Court had allowed the Trump administration’s rule forbidding most Central American migrants from seeking asylum in the United States to take effect while the appeals courts deliberated its legality.

That stay remains in place until the Supreme Court takes up the case or the Trump administration abandons the policy. In the meantime, nearly all asylum seekers have been temporarily blocked from entering the country under a separate administration directive, issued as a result of the coronavirus pandemic, that closed the border to all but United States citizens and lawful permanent residents.
Still, Monday’s opinion was an important legal milestone, a 66-page opinion that found serious legal deficiencies in one of the administration’s signature immigration policies.

“The Trump administration is sure to appeal to the U.S. Supreme Court,” said Stephen Yale-Loehr, a professor of immigration at Cornell Law School.

Saturday, July 4, 2020

Trump?s push to amplify racism unnerves Republicans who have long enabled him - The Washington Post

Trump?s push to amplify racism unnerves Republicans who have long enabled him - The Washington Post
“They coddled this guy the whole time and now it’s like some rats are jumping off of the sinking ship. It’s just a little late,” Kasich said. “It’s left this nation with a crescendo of hate not only between politicians but between citizens. … It started with Charlottesville and people remained silent then, and we find ourselves in this position now.”
Kasich added, “I’m glad to see some of these Republicans moving the other way but it reminds me of Vichy France where they said, ‘Well, I never had anything to do with that,’” a reference to the French government that continued during Nazi occupation in the 1940s. 

Friday, July 3, 2020

Hong Kong's National Security Law: how dangerous is Article 38? | The China Collection

Hong Kong's National Security Law: how dangerous is Article 38? | The China Collection

by Don Clarke (George Washington Law School)
Many people who live outside of mainland China and Hong Kong and who have been critical of the Chinese Party-state are wondering about their safety in the wake of Hong Kong’s National Security Law (the “NSL” or the “Law”), which in Article 38 purports to criminalize violations of the law committed by anyone anywhere in the world. (I discussed the details in an earlier blog post.)
My short take on this is that I don’t think anyone is in significantly greater danger than they were before the NSL came into effect provided they stay out of Hong Kong. Here’s why I think so. My analysis will look both at the law and practical realities.
I. Mainland PRC
A. Law
Let’s look first at mainland PRC law, which does not apply in Hong Kong. Criticism of the Party-state, mockery of leaders, even anti-Party-state activism, etc. by non-PRC citizens outside the PRC mainland did not generally subject non-PRC citizens to criminal liability under mainland PRC law. A non-PRC citizen committing an act outside the mainland is criminally liable under mainland PRC law only if (a) the act would get a sentence of at least three years under the PRC Criminal Law, and (b) the act is a crime in the place where committed. Thus, typical acts of speech—tweeting, blogging, teaching, writing op-eds, etc.—would not make one liable.
B. Reality
Most people know by now that relying on the words of the law in China can be risky. (Who would have thought that making a mocking reference to “Steamed Bun Xi” in a small, private WeChat group could be grounds for imprisonment for “picking quarrels and stirring up trouble”?) Given that China is detaining even people who have done nothing in order to have hostages [kidnapped Canadians | kidnapped Americans], it would be foolhardy indeed to assure anyone that they could do anything offensive to the Party-state outside of mainland China that is permitted by local law and not have to worry about getting arrested if they went to China. In practice, however, it seems that detentions by China of foreign critics, even on trumped-up grounds, are few.
There are three cases I know of—there may of course be more—where non-PRC citizens have been subject to criminal liability in China for (possibly) things they did outside of the mainland PRC. ***[KEEP READING]

Wednesday, July 1, 2020

Video: The Federalist Society and the federal judiciary - WaPo

Review: Jim Forest’s new memoir delves into his ‘unusual conscience’ | America Magazine

Review: Jim Forest’s new memoir delves into his ‘unusual conscience’ | America Magazine

Justices fail to correct a serious mistake in latest abortion ruling - Garnett - Our Sunday Visitor

Some people just get under one's skin.  For me relentlessly conservative Notre Dame law professor Rich Garnett is one.  Like the leaders of the United States conference of Catholic Bishops (UCCB) and New York's Archbishop Dolan he is an anti-abortion absolutist.  That has landed the hierarchy in Republican and Trumpian laps.

I am instead inclined toward Michael Sean Winters at National Catholic Reporter.  He writes this week that the Pro-life clause is stymied, but not because of the recent court decision blocking a Louisiana law.  The core of Winters argument is
The heart of the matter is whether we, as a society, are going to treat pregnant women with dignity and give them the support they need so that they never view a pregnancy as a burden. Will we restructure our society so that parenting is not a career ender? Will we make sure that pregnancy costs no more than an abortion? Will we have child support services so that a single mom does not have to carry the full weight of parenting non-stop, 24/7? John Carr, who was a longtime lead staffer on public policy at the bishops' conference, has always said we need to make abortion unthinkable before we make it illegal, and I think he is right. I do not see how the pro-life movement can or should move forward right now. We need a more propitious time and more propitious leaders.
- gwc
Justices fail to correct a serious mistake in latest abortion ruling - Our Sunday Visitor
by Rick Garnett (Notre Dame Law School)

On Monday, a divided Supreme Court handed down its decision in a case called June Medical Services v. Russo, which involves a Louisiana law requiring abortionists to hold “active admitting privileges” at a nearby hospital. By a vote of 5-4, the justices ruled that this duly enacted regulation violates the Constitution of the United States.
The court’s decision, and the fact that Chief Justice John Roberts — a judicial conservative who, until now, has consistently voted to uphold reasonable abortion restrictions — voted with the court majority, have deeply disappointed not only pro-life Americans but all those who understand how badly the 1973 Roe v. Wade decision has distorted and degraded our law, our politics and our political morality.
The June Medical Services case is a sequel of sorts to another, similar one. In 2016, a few months after the death of Justice Antonin Scalia, a different five-justice majority struck down a Texas admitting-privileges requirement, concluding that it unconstitutionally burdened the legal right to abortion. A question, then, in June Medical Services was whether the Louisiana statute and its effects should be regarded any differently. Justice Stephen Breyer, joined by the court’s three other more liberal members, determined that it should not. And Roberts agreed. Louisiana’s health-and-safety regulation, he concluded, is “nearly identical to the Texas law struck down four years ago” and it “imposes a burden on access to abortion just as severe as that imposed by the Texas law.”***

How Palestinians Can Reunite to Oppose Israel's Annexation | Time

How Palestinians Can Reunite to Oppose Israel's Annexation | Time
by Salam Fayyad (former PM of the Palestinian Authority)

***Instead, the PLO must propose an alternative way forward that could garner broad-based Palestinian support. What the Palestinian people desperately need is a clear statement — a definition upon which we can legitimately pursue our national aspirations. I believe a broad Palestinian national consensus can be built upon a platform committing to either of two options.

The first is anchored on the model of a single state, whose constitution provides for full equality for all of its citizens, and without any discrimination on any basis whatsoever. The second is an agreed two-state solution — but only with an independent and fully sovereign Palestinian state on the entire territory occupied by Israel in 1967, including East Jerusalem, and with any engagement in a peace process that is to lead to that outcome preceded by international recognition, including by Israel, of the Palestinians’ right to such state, as well as our other rights provided for under international law—namely, the right of return in accordance with UN resolution 194 and the right to self-determination.

Obviously these two options are mutually exclusive. But, they have to both be included in the new platform to ensure that the PLO—as it begins to take concrete steps to include non-PLO factions and forces opposed to the Oslo framework or the 1988 compromise—is instantaneously empowered to convey, on behalf of all Palestinians, what we are prepared to accept. At some point, Palestinians will have to choose between the two possible options outlined above. That, however, will not happen unless Israel recognizes our national rights.

Tuesday, June 30, 2020

On Jerry Cohen's 90th NYU Law announces endowed chair and fall programs to honor Professor Jerome A. Cohen on his retirement | NYU School of Law

It has been one of the greatest honors of my life that I had the opportunity to know and to work with Jerome Cohen who has just turned 90.  His career is the stuff of legend - but he actually did it all.
I had the great good fortune in 2005 to travel with Jerry and two distinguished judges John Walker and Jed Rakoff to Guangzhou and  Beijing.  We lectured about fair trials and judicial ethics.  At Beijing Normal University's Criminal Justice School we discussed the death penalty with concerned prosecutors, lawyers, and judges.  Since then I have been fortunate to attend many discussions in the Winston Lord round-tables at the Council on Foreign Relations. - GWC
NYU Law announces endowed chair and fall programs to honor Professor Jerome A. Cohen on his retirement | NYU School of Law
For nearly 60 years—the past 30 at NYU School of Law—Professor Jerome A. Cohen has been a towering figure in the fields of Chinese law and East Asian legal studies. To celebrate him on the occasion of his retirement on June 30, the Law School is delighted to announce the establishment of an endowed chair in his name, as well as a series of virtual events this fall focused on critical legal issues in East Asia.

Jerome Cohen
Jerome Cohen

Longtime friends of Jerry Cohen, Andrew Duncan and Bess Weatherman, spearheaded the campaign to establish the Jerome A. Cohen Professorship of Law by seeding the chair with a generous gift. They then worked closely with Cohen’s extended family of former students, scholars, and others around the world to fully endow the chair. Others contributing were Jack Huang, founder and chairman of Taiwan Renaissance Platform, and former partner-in-charge of Jones Day, Taipei; Daniel Tsai, chairman of Fubon Group; and additional supporters who wish to remain anonymous.
Once a faculty member is selected for the professorship, the Law School will announce an inaugural chair event to mark the occasion.
“Jerry is one of the foremost authorities on a document that many often forget about,” says Duncan. “China has a constitution too—using that as his cornerstone, Jerry has been an unsurpassed ambassador for Chinese rule of law. Jerry knows that there cannot be healthy capitalism without healthy rule of law. The true gift of Jerry Cohen is his coaching tree—literally generations of younger people around the globe. It is Jerry’s commitment to the children of the Sino American relationship which will remain with me for the rest of my days.”
“We are thrilled to endow a chair in Jerry’s name, and grateful to Andrew and Bess for being so instrumental in making that possible,” says Dean Trevor Morrison. “This will not only honor one of the original leaders of the field of Asian legal studies in the West; it will also guarantee the long-term sustainability of Jerry’s path-breaking work, enabling NYU Law to continue as a vital center for the study of Asian legal systems and an active participant in US-Asian exchanges on critical issues of law and policy.” Morrison adds: “It is especially fitting to announce this now, since tomorrow, July 1, is Jerry’s 90th birthday. On behalf of the entire Law School community, I offer him our congratulations, admiration, thanks, and best wishes.”
After graduating from Yale Law School, where he was editor-in-chief of the Yale Law Journal, Cohen clerked at the US Supreme Court for Chief Justice Earl Warren and Justice Felix Frankfurter. After starting his teaching career at the University of California, Berkeley School of Law, in 1964 he joined the faculty at Harvard Law School, founding the school’s East Asian Legal Studies program. As a partner (and now of counsel) at Paul, Weiss, Rifkind, Wharton & Garrison, he concentrated on business law in Asia. ***

Could America’s pandemic response be any more medieval? - Dana Milbank The Washington Post

There's a difference between stupidity and foolishness.  Rand Paul has exemplified it.  Fool.  - gwc
Opinion | Could America’s pandemic response be any more medieval? - The Washington Post
by Dana Milbank
Sen. Rand Paul doesn’t much care what Anthony Fauci has to say. The Kentucky Republican gets his public health advice from Friedrich Hayek.
Hayek, the Austrian-born economist and libertarian hero, died in 1992. But Paul, an ophthalmologist before he took up politics, still takes medical guidance from the 20th-century philosopher.
“Hayek had it right!” Paul proclaimed at Tuesday’s Senate health committee hearing on the coronavirus pandemic. “Only decentralized power and decision-making based on millions of individualized situations can arrive at what risks and behaviors each individual should choose.”
Paul focused his wrath on Fauci, the U.S. government’s top infectious-disease official. “Virtually every day we seem to hear from you things we can’t do,” Paul complained. “All I hear is, we can’t do this, we can’t do that, we can’t play baseball.”

Hong Kong Security Law is in Effect - Bill Bishop - Sinocism

Hong Kong Map and Satellite Image
There is a high degree of alarm about the new national security law.  It strikes me as a harsh but pretty conventional set of security laws - essentially supplanting Hong Kong's more protective law, as Changhao Wei of NPC Observer explains.  It spells the end of the autonomy that has been Hong Kong's governance mode.  The Hong Kong government failed to maintain order and to enact its own security law - despite an obligation to do so.  The massive protests which went on for months and disrupted the life of the former British colony demonstrated the incompetence of the Hong Kong government and anarchistic cynicism of many in the protest movement.

The contradictions of the British legal legacy and the special status of Hong Kong produced a local culture utterly intolerant of the one party, highly censored political life of the mainland.  The absence both of  independence and of genuine self government yielded a fractious and undisciplined mainly youthful opposition. 
The usual criteria for development of a national liberation movement were absent.  There are no linguistic, tribal or other forces that would support an independence movement.  And if one had developed, it surely would have been suppressed.

So Hong Kong did not develop as the in-house Singapore that the CP had hoped for.  Instead they found themselves with a fractious population governed incompetently by a local leadership that did not have enough power to maintain both order and international business confidence.  So the sovereign has stepped in with both feet.

It is hard to see a bright future for Hong Kong.  Businesses are likely to avoid the risks and acquiesce in the terms offered in Shenzhen and other mainland centers.  Hong Kong will probably bump along with slowly declining prosperity as Singapore proves a more stable authoritarian option. - gwc


Hong Kong National Security Law is in effect; CCP turns 99; Gaokao

by Bill Bishop  June 30, 2020

The Hong Kong National Security law has been promulgated and is now in effect. You can read the official versions here in simplified Chinesehere in traditional Chinese and here in English.
Some highlights:
Chapter III Offences and Penalties 第三章 罪行和处罚
Part 1 Secession 第一节 分裂国家罪
Part 2 Subversion 第二节 颠覆国家政权罪
Part 3 Terrorist Activities 第三节 恐怖活动罪
Part 4 Collusion with a Foreign Country or with External Elements to Endanger National Security 第四节 勾结外国或者境外势力危害国家安全罪
Article 38 This Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region. 第三十八条 不具有香港特别行政区永久性居民身份的人在香港特别行政区以外针对香港特别行政区实施本法规定的犯罪的,适用本法。
Article 54 The Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region and the Office of the Commissioner of the Ministry of Foreign Affairs in the Hong Kong Special Administrative Region shall, together with the Government of the Hong Kong Special Administrative Region, take necessary measures to strengthen the management of and services for organs of foreign countries and international organisations in the Region, as well as non-governmental organisations and news agencies of foreign countries and from outside the mainland, Hong Kong, and Macao of the People’s Republic of China in the Region. 第五十四条 驻香港特别行政区维护国家安全公署、外交部驻香港特别行政区特派员公署会同香港特别行政区政府采取必要措施,加强对外国和国际组织驻香港特别行政区机构、在香港特别行政区的外国和境外非政府组织和新闻机构的管理和服务。
There is talk of marches tomorrow, July 1, the 23rd anniversary of the handover. Perhaps there will be safety in numbers if tens of thousands or more take to the streets?
Expect the authorities to target a handful of people and cases to use as examples for the new law.
Xi and the CCP leadership were never going to back down from pushing through this law, no matter how much the Trump administration threatened. Now the US is in a bit of a bind, as the measures threatened so far look like they harm Hong Kong citizens and US interests more than they impact Xi and the CCP. Will the Trump administration blink, or will we see much more impactful moves like sanctions on major PRC financial institutions and senior Party/central government leaders and their family members? And will the US or any other Western governments do anything meaningful for Hong Kong residents?
I still stand by my comments from the May 28 newsletter:
The US runs the risk of having made a big deal about this law and then issuing a weak response that imposes relatively little cost on Beijing. I believe that is what Xi is betting on, and certainly the utterances from other governments have been fairly milquetoast, or non-existent as in the case of most of the PRC’s neighbors.
For Xi and the CCP, Hong Kong political security and the territory’s place in the Motherland trump whatever increase in US-China friction may come, and in the logic the two countries are now stuck in a harsh US response will only confirm to Xi and many in China that the US is hellbent on keeping China down, while a weak response from DC will add to the view already held by more than a few in Beijing that Trump and the US are paper tigers, as Mao liked to say, and Beijing can increasingly act with impunity. It is a toxic dynamic.
The new Hong Kong law will likely bring much more attention to the question of what if anything the US and its allies should or can do to protect Taiwan. There is no longer any reasonable prospect of “peaceful reunification” as the CCP calls it. Taiwan President Tsai tweeted a few hours ago:

Woodrow Wilson Was Even Worse Than You Think | Talking Points Memo

Woodrow Wilson Was Even Worse Than You Think | Talking Points Memo
by Colin Woodard
Princeton University’s decision this weekend to strike the name of its former president — and ours — from its public policy school for his “racist thinking and policies” was long overdue. Woodrow Wilson was in wide company in being a white supremacist at the turn of the 20th century, but he stands apart in having overseen the triumph of this ideology at home and abroad.
Son of the Confederacy’s leading cleric, apologist for the Klan, friend of the country’s most prominent racist demagogues, and architect and defender of an apartheid international racial order, the amazing thing is that Wilson’s name was ever associated with idealism or respectable statesmanship. In fact, delving deeply into his life to write “Union” — a book on the battle over whether the United States was to be defined by adherence to “natural rights” ideals contained in the Declaration of Independence, or to Anglo-Saxon bloodlines — I came away wondering how any institution would have wanted to be associated with his name at all, even in the 1920s or 1940s.

Monday, June 29, 2020

CDC Deputy Director Anne Schuchat - "we're not even beginning to be over it" - with JAMA's Howard Bauchner

CDC Intensifies Warnings About Vaping Illness As Cases Top 1,000 ...
Deputy Director of CDC Anne Schuchat "we are not even beginning to be over this"

The West's monumental crisis - UnHerd

The West's monumental crisis - UnHerd

The Epic Fails of Trump Attorney General William Barr//David R. Lurie - Daily Beast

The Epic Fails of Trump Attorney General William Barr
William Barr does not seem concerned that people know he is unethical, but he treasures his reputation as a ruthlessly effective fixer for Donald Trump. As the events of recent weeks have made plain, however, that reputation is undeserved.
When Trump nominated Barr to serve as attorney general in 2018, many expressed hope that this “old Washington hand” would return respect for the rule of law to the Department of Justice. Barr swiftly burst that balloon by baldly lying about Special Counsel Robert Mueller’s findings, even as he hid them for weeks. Since then, Barr has thoroughly trashed his reputation for probity and fidelity to the law, as he's successfully manipulated the justice system to serve Trump’s corrupt purposes.
But much like his boss, Barr wildly overestimates his own judgement and intelligence, and hence his ability to effectively employ governmental institutions to serve illicit ends. And while Barr has had some success in manipulating the justice system to protect Trump, he’s also had more than his own share of failures that placed Trump at needless risk or embarrassment, and even impeachment.

Seila Law LLC v. Consumer Financial Protection Bureau (06/29/2020)

TIME cover depicts Trump dressed as a king - CNN Video
The United States Supreme Court, in a 5-4 decision has embraced the so-called unitary executive theory.  The doctrine holds that the entire executive branch is, like a ventriloquist's dummy, the voice of the president.  The decision could undermine every quasi-independent federal agency - such as the FTC, the FCC, and the Consumer Product Safety Commission. 
And it signals that the court will not stand up to any assertion of executive authority by Donald  J. Trump There will be no departure from Republican party embrace of  an autarchic president - at least until a Democrat holds that post. - gwc
19-7 Seila Law LLC v. Consumer Financial Protection Bureau (06/29/2020)
The CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers. Pp. 11–30. (a) Article II vests the entire “executive Power” in the President alone, but the Constitution presumes that lesser executive officers will assist the President in discharging his duties. The President’s executive power generally includes the power to supervise—and, if necessary, remove—those who exercise the President’s authority on his behalf. The President’s removal power has long been confirmed by history and precedent. ***
The Framers’ constitutional strategy is straightforward: divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections. In that scheme, individual executive officials may wield significant authority, but that authority remains subject to the ongoing supervision and control of the elected President. 

Opinion analysis: With Roberts providing the fifth vote, court strikes down Louisiana abortion law - SCOTUSblog

Opinion analysis: With Roberts providing the fifth vote, court strikes down Louisiana abortion law - SCOTUSblog
by Amy Howe
Four years ago, by a vote of 5-3, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions to have the right to admit patients at a nearby hospital. In that case, Justice Anthony Kennedy joined his four more liberal colleagues in holding that, although Texas has a genuine interest in protecting the health of pregnant women, there was no evidence that the law actually did anything to promote that interest – but it did make it more difficult for women to get an abortion. Kennedy is no longer on the court, but today it was Chief Justice John Roberts who joined the court’s four liberals in ruling that a similar law from Louisiana is unconstitutional – even as he maintained that he continues to believe that the Texas case was wrongly decided.
The law at the center of today’s decision is the Louisiana Unsafe Abortion Protection Act, enacted in 2014, which requires doctors who perform abortions in Louisiana to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. After the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt striking down the similar Texas law, a federal court in Louisiana barred the state from implementing the admitting-privileges requirement. It ruled that the law was unconstitutional because it would impose an “undue burden” on a woman’s right to an abortion. Specifically, the district court concluded, if the law went into effect, there would be only one doctor in the entire state left performing abortions in the early stages of pregnancy, and none at all performing abortions between 17 and 21 weeks of pregnancy. The U.S. Court of Appeals for the 5th Circuit reversed that ruling, clearing the way for the state to enforce the admitting-privileges requirement.