| ◼ The vice president should visit Putin next.
◼ We pray for the repose of the soul of Pope Francis, the first pope to take the name of the beloved saint from Assisi, the first Jesuit pope, and the first pope from the Western hemisphere. His pontificate will be remembered for his welcoming words and humane gestures, such as his dramatic Urbi et Orbi blessing in the midst of the Covid-19 pandemic, and for his final passage through the crowds at St. Peter’s Square, hours before his death. But he was at times provocatively iconoclastic and informal, and often needlessly antagonized those committed to orthodox Catholic belief. He tasked theologians and church leaders with finding a way to justify permission for divorced Catholics to receive Holy Communion even as they remained in second marriages, which the church considers adulterous. He criticized “rigid” young priests. And he clamped down on the traditional Latin Mass. His pontificate began with high hopes of curial reform, to address financial scandals and problems of governance related to child abuse. He did not entirely succeed in either objective. None of those shortcomings, however, detract from the high importance of his office. So we also join in the prayers for the College of Cardinals, which now has the duty to choose Francis’s successor. The college should choose the man who is best equipped to lead the institution of 1.4 billion souls while remaining a humble follower of the Good Shepherd.
◼ The Supreme Court ordered Trump not to deport more Venezuelans suspected of membership in the Tren de Aragua gang. Dissenting justices Samuel Alito and Clarence Thomas argued that the intervention was premature. It probably was, but the Court was put in that position because the administration had suddenly moved dozens of aliens to the Northern District of Texas (a judge having already prohibited deportations without due process in the Southern District of Texas). Officials told the aliens they were about to be deported and would not give a straight answer about whether flights to El Salvador were imminent. Meantime, the administration, which has been stonewalling inquiries into the terms of its agreement with Salvadoran President Nayib Bukele, finally told a federal judge that the agreement covers only Venezuelans, not Kilmar Abrego Garcia, the Salvadoran the administration illegally repatriated. Although Abrego Garcia had an immigration order prohibiting his removal to El Salvador, Trump is exploiting the fact that he is not part of the agreement, and may not be in custody, to claim that he is under Salvadoran control and cannot be returned to the U.S. As for the 252 deported Venezuelans whom El Salvador is already holding in its mega-prison, Bukele offered to send them to Venezuela if that country would release an equal number—raising the specter that Trump is using Bukele as a cut-out to negotiate with the Maduro regime, which the U.S. does not recognize.
◼ Trump’s executive orders against law firms associated with attorneys who’ve investigated him and represented top Democrats are an assault on the Constitution. They are politicized and often false pronouncements of misconduct, without the protections of due process. They then impose draconian penalties, such as a ban on firm personnel entering government buildings, that make serving clients impossible. While several firms have settled, calculating that offering up (collectively) hundreds of millions in free legal services for Trump-approved causes is a price worth paying to stay afloat, two firms—WilmerHale and Jenner & Block—are fighting back in court. WilmerHale retained the estimable Paul Clement, solicitor general in the George W. Bush administration. It is bedrock law that government may not coerce lawyers to retaliate against them or suppress views it disfavors. The executive may not wield legislative and judicial power—make up the rules and impose sentences. The EOs do exactly that, functioning as unconstitutional bills of attainder. One needn’t admire the work of the law firms to grasp that Trump’s EOs cannot stand.
◼ Sometimes, cases get to the Supreme Court because a lawsuit should never have been brought. Sometimes, it’s because one should never have been defended. Mahmoud v. Taylor, which was argued Tuesday before the Supreme Court, is the latter kind. The school board of Mongomery County, Md., prepared a curriculum of “LGBTQ-inclusive” storybooks to be taught to children as young as prekindergarten—ostensibly as part of the English curriculum. It refused the requests of religious parents to opt their children out, ostensibly on the grounds that there were too many opt-out requests. The school board, which has spent $1.2 million defending this case, had to pretend before the Supreme Court that the storybook lessons were merely presenting neutrally the fact that people have same-sex marriages or consider themselves transgender—even as Justice Alito read aloud passages about talking a little girl into embracing the sentiment that she should be happy for her gay uncle’s wedding, and Justice Amy Coney Barrett read from curricular materials on how to “disrupt” the “binary” thinking of skeptical grade-schoolers. You could just homeschool your kids if you don’t like it, scoffed Justice Ketanji Brown Jackson, who was reduced to insisting that the instructional authority of a teacher-read book is no different from the burden on religious people when they see ads they dislike on a public bus. If our public schools do no more teaching than what kids can learn from reading the side of a bus, that’s not much of a defense.
◼ Harvard has filed suit in federal court over an executive order cutting off its federal funding. The suit alleges that Trump is seeking to control the speech of a private university in violation of the First Amendment and that he failed to follow the Administrative Procedure Act when terminating university funding under Title VI of the Civil Rights Act. While Trump is well within his powers in some of his demands of Harvard—and is using tactics similar to those of the Obama and Biden administrations—the suit raises serious issues. The administration is said to be open to a negotiated resolution, which is not a sign of confidence. On the other hand, universities could use the reminder that federal funding often comes with federal strings.
◼ Trump’s willingness to challenge apparently long-settled norms is sometimes an asset. The behemoth of federal civil rights laws may originate with the Civil Rights Act of 1964, which banned discrimination “because of” race and gender, but far too much of it has been invented by administrative agencies and courts. In January, a Trump executive order repealed racial preferences in federal operations. He has now issued another order aiming “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” The goal is to ban intentional discrimination, rather than merely unequal outcomes—because preventing unequal outcomes sometimes requires intentional discrimination. Trump directed the repeal of regulations dating as far back as 1966, and directed the government to review its litigation posture in all cases where it asserts disparate impact theories. This is good. As Justice Clarence Thomas has observed, “the author of disparate-impact liability under Title VII [of the Civil Rights Act] was not Congress, but the Equal Employment Opportunity Commission (EEOC),” which felt that “creative interpretation” was required to expand the reach of a statute it found inadequate. The Court is no longer so deferential to agency interpretation—and may soon be asked to decide whether it must defer to a position the executive branch has abandoned. |