Conservatives Continue to Clash Over Trump Emergency Edict

On March 21, 2019 By admin

• Breaking News

Congress is unlikely to have the votes to override President Donald Trump’s veto of its resolution revoking his national emergency declaration over the border wall. But the debate over its constitutionality, especially among conservatives, isn’t going anywhere.

When Senator Rand Paul announced he would oppose Trump’s national emergency, conservative talk host Mark Levin slammed the senator as a “phony constitutionalist.”

Levin wasn’t alone. Many on the Right, including politicians, pundits, and former White House deputy assistants, had less than kind words for the libertarian-leaning senator who pledged to join a minority of Republicans and most Democrats on a resolution to block Trump’s order.

There were conservatives who sided with Paul. When former Republican Senate candidate Austin Petersen of Missouri asked talk show host Glenn Beck whether conservatives now attacking Paul were being “phonies” themselves, Beck replied, “Yes.”

It’s worth noting that Beck and Levin work for the same media company.

The Resurgent’s Erick Erickson backed Paul and said he was “taking a principled stand.” National Review’s Katherine Timpf wrote, “Senator Rand Paul has announced that, despite supporting improvements in border security, he will vote against President Trump’s emergency declaration on the grounds that it’s an abuse of executive power—and he’s absolutely right.”

Timpf cited Paul’s Fox News op-ed in which the senator declared, “Every single Republican I know decried President Obama’s use of executive power to legislate. We were right then.”

Six years ago, Levin called Obama an “imperial president” due in large part to executive power abuses. “You would think that the Constitution is just another statute for these guys to play with,” Levin said in 2013. “This is why I’m furious. Because once we lose the Constitution, and we’re losing it big, what’s left? How do we keep these people in check?”

“If we take away those checks and balances, it’s a dangerous thing,” Paul said of Trump’s overreach.

While most Republicans backed Trump’s border decree, 13 House Republicans voted with Democrats (including, not surprisingly, libertarian-leaning Republicans) to oppose it in late February. Last Thursday, 12 Republican senators joined Democrats to rebuke the president.

Still, the Republican majority onboard with Trump’s order emphasized the need to defend America’s borders by any means necessary. Other conservatives stressed that while strengthening our borders is vital, an executive dictate is simply not the way to do it.

Who was right? Who is right?

What is the true conservative position on this issue?

It depends on what kind of conservative you are.

For the libertarian camp that stresses constitutionality first, few if any national emergencies—even on something they might agree with—are enough to justify ditching the rule of law.

Most executive order border wall advocates claim that the 1976 National Emergencies Act makes Trump’s dictum constitutional, but that was basically Obama’s rationale many times when he ruled by “a pen and a phone.” No conservatives bought that argument at the time. Even Trump criticized Obama’s executive abuse.

Supporters of Trump’s declaration said that if anything qualified as a legitimate national emergency, it’s our current broken borders. They have a point, particularly with the spike in border apprehensions in February.

But might a future Democratic president claim that climate change or gun violence also represents a legitimate national emergency? What’s to stop them if it’s what their constituents want and they feel it’s politically advantageous?

The Constitution is supposed to stop them.

But many on the Right now say constitutionality is a secondary concern. The conservative camp that takes this view, the opposite of libertarians and constitutionalists like Paul, is what one might label “authoritarian.”

I do not use this term to slander or belittle those who have legitimate concerns about America’s porous borders. Those worried about national security in general are not necessarily “authoritarian” in their ideology or character. In fact, I share many of their concerns about our overall immigration system.

But their priorities are coming from a different place than strict constitutionalist Republicans in their support of the president’s methods on this issue.

The definitional opposite of “liberty” is “authority.” There has always been a strain on the Right that values security over liberty, usually in the form of enhanced authority when given the choice.

The George W. Bush era was a good example of this trend. Levin, who rose to fame during that time, has also often represented this tendency. The popular talk show host appears to believe that border security takes precedent over any constitutional concerns right now.

Levin once used similar reasoning in his defense of the Patriot Act. In his 2009 bestselling book Liberty and Tyranny, he wrote:

The Statist has also opposed the interception of enemy communications, such as email and cell-phone contacts, without approval from a court…he claims the practice threatens Americans civil liberties. Where is the actual evidence of widespread civil liberties abuses against American citizens? It is nonexistent.

This is Levin, using the Bush-Cheney-Orwellian language of the Republican Party 10 years ago, condemning civil liberties advocates worried about abuse of the Patriot Act. He even called those concerned about due process abuse “Statists.” Wrap your head around that one.

But that was the pro-war narrative of the time: those more concerned about constitutional rights than fighting the terrorists were actually aiding terrorists. For that kind of conservative, including neoconservatives, America’s security was always more important than its liberty. To them, anyone who disagreed didn’t give a damn about America, period.

This sentiment is similar to how most of Trump’s executive order backers view those who worry about the constitutionality of the president’s current actions.

This divide on the Right is not new. In 2007, authoritarian-leaning Senator Jeff Sessions said, “The civil libertarians among us would rather defend the Constitution than protect our nation’s security.”

He was talking about the war on terror. This echoes what most of Trump’s executive order supporters espouse today. They believe, even if they don’t say it, that the ostensible security to be gained is worth any liberty sacrificed.

It can be a conservative position. It is an authoritarian position. It is not a constitutional one.

Jack Hunter is the former political editor of Rare.us and co-authored the 2011 book The Tea Party Goes to Washington with Senator Rand Paul.

A “view” from the courtroom: Trials of Mississippi

On March 21, 2019 By admin

• Breaking News

Today will bring an intense hour of argument about race in jury selection in the case of a Mississippi man who has been tried six times by the same prosecutor, which will culminate in a series of short questions by Justice Clarence Thomas, his first during oral argument in three years.

But first, there are a couple of lighter moments.

Chief Justice John Roberts announces that Justice Stephen Breyer has the court’s opinion in Obduskey v. McCarthy & Holthus LLP, interpreting a provision of the Fair Debt Collection Practices Act.

Breyer has been busy at opinion time this week. On Tuesday, he delivered the first dissent from the bench of the term when he responded to Justice Samuel Alito’s majority opinion in Nielsen v. Preap, which gave the federal government greater authority to detain, without bond hearings, immigrants facing deportation who have committed crimes. Breyer spoke of the “basic promises” that the nation’s legal system offers all persons, including a bail hearing.

Breyer also announced the judgment and delivered a plurality opinion yesterday in Washington State Department of Licensing v. Cougar Den Inc., about whether an 1855 treaty between the United States and the Yakama Nation tribe pre-empts a Washington state fuel tax as it applies to the tribe’s transport of fuel by public highway.

Today, Breyer just has a straightforward announcement of a unanimous opinion in Obduskey, holding that a business engaged in no more than nonjudicial foreclosure proceedings is not a “debt collector” under the fair-debt law, with one exception. Justice Sonia Sotomayor has filed a concurrence.

The chief justice then announces that the court is issuing a per curiam opinion in the argued case of Frank v. Gaos, a challenge to “cy pres” settlements in class actions in which the funds go to the lawyers and certain nonprofit organizations, while class members get nothing.

Roberts begins a summary of the per curiam by explaining the underlying issue — that Google has allegedly violated the Stored Communications Act by transmitting search terms of the user to the server that hosts the selected web page.

The chief justice explains that the class action applied to searches conducted by Google users from 2006 to 2014, “so that means most of you.” He gets a good chuckle from the courtroom.

He goes on to explain the reason for the per curiam treatment today — that the solicitor general has raised concerns about whether any named plaintiff in the case actually had the right to sue, known as standing. The court is sending the case back for the district court and the U.S. Court of Appeals for the 9th Circuit to consider standing in light of the Supreme Court’s 2016 decision in Spokeo Inc. v. Robins. Thomas has filed a dissent.

Next up is bar admissions. There are a few individuals and two groups today. One group is from the Los Angeles County District Attorney’s Office, whose members will certainly find the argument engaging. The other group is from the Western New England School of Law. The school official or alumnus who presents the group draws growing laughs as he introduces his son, his nephew, his cousin, then a few non-relatives, and then another son, who is a member of a different state bar than the first son.

In his understated way, Roberts says, “Your motion is granted, and your relatives and the other applicants will be admitted.” This triggers a wave of laughter, and one person in the public gallery even claps at the quip.

The chief justice — he’s here all week.

But the mood quickly turns serious as Flowers v. Mississippi, the lone case for argument, begins.

As Amy Howe reported in her argument preview, this case involves Mississippi death-row inmate Curtis Flowers, who has been tried six times for the 1996 murders of four people in a Winona, Mississippi, furniture store.

Doug Evans, the local district attorney, served as the lead prosecutor at all six of the trials.

In Flowers’ first two trials, which involved a single murder charge, Evans used his peremptory strikes to eliminate all 10 potential African-American jurors. Flowers was convicted and sentenced to death, but both convictions were later reversed by the Mississippi Supreme Court, which found that Evans had engaged in intentional misconduct, such as introducing evidence of the other murders.

At his third trial, Flowers was convicted and sentenced to death for the murder of all four victims, as Howe wrote. But the Mississippi Supreme Court also overturned those convictions. Evans had used all 15 of his peremptory strikes to remove African-American members of the jury pool, the state court ruled, in violation of the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky.

When Flowers was tried a fourth time, Evans used 11 peremptory strikes to remove potential African-American jurors, resulting in a jury with seven whites and five African-Americans. That jury deadlocked, as did the jury in Flowers’ fifth trial, Howe noted. Evans used five peremptory strikes in that trial, but there is no record of the race of the jurors whom he struck.

At Flowers’ sixth trial, in 2010, six of the 26 potential jurors in the jury pool were African-American. Evans allowed the first one to be seated but then struck the next five prospective African-American jurors, resulting in a jury of 11 white jurors and just one African-American. Flowers was convicted and sentenced to death for all four murders.

That 2010 conviction was upheld by the Mississippi Supreme Court, and upheld again after it was remanded for reconsideration in light of the U.S. Supreme Court’s 2016 decision in Foster v. Chatman, which held that the use of peremptory strikes to remove potential African-American jurors, as reflected in prosecutors’ notes, was unconstitutional.

This most recent conviction is the one before the justices today, and they will consider whether the state high court erred in how it applied Batson.

When Sheri Lynn Johnson of Cornell Law School takes to the lectern representing Flowers, she asserts that Evans began the sixth trial “with an unconstitutional end in mind, to seat as few African American jurors as he could.”

She describes the numbers and some of the anomalies in the questioning and striking of potential African-American jurors, factual matters that will be batted around in great detail today.

Alito interrupts her with a question that will help set the tone for the argument.

“The history of the case prior to this trial is very troubling,” he says, and it is “cause for concern and is certainly relevant to the decision that ultimately has to be made in the case.”

But “if we were to disregard everything that happened before this trial, and we looked at the strikes of the black prospective jurors as we would in any other Batson case, do you think you’d have much chance of winning?” he says.

The evidence is that Evans acted with discriminatory motivation, Johnson says.

Alito, a former United States attorney for New Jersey, presses her on some of the relationships between many of the potential jurors and either the defendant or the victims.

“Again, put aside the history,” Alito says. “In the end, we can’t do it, but if you did, don’t you think a prosecutor or any attorney would be very wary of having a juror who had been sued by one of the parties?”

The argument will veer several times to the close-knit nature of small-town Winona, with a population of no more than 5,000. One prospective juror worked at the same retail store as the defendant’s father, or “the world’s smallest Walmart,” as the trial judge called it and Alito repeats in court.

“It’s a very small town where everybody knows everybody, apparently, or many people know many people,” Justice Elena Kagan says to Johnson. “And it’s a largely segregated town, where you might think that African Americans knew more African Americans than they would whites or vice versa. So does that account for some of the differential questioning?”

Yes, says Johnson, the Mississippi Supreme Court said that concern accounted for some of the differential questioning.

“There are more African American jurors who report relationships with defense witnesses or the defense family members,” Johnson says. “But there are five white jurors who report such relationships and whom the prosecutor did not ask questions about those relationships.”

Jason Davis, a special assistant attorney general of Mississippi defending the state high court’s decision, begins his time at the lectern by conceding that “the history in this case is troubling.”

Davis says that “if we disengage this troubling history … if we take that out of the case, we don’t have any taints.”

Justice Brett Kavanaugh tells him, “We can’t take the history out of the case. … It was 42 potential African American Americans and 41 are stricken, right?”

Davis accepts that description, which appears to apply to numbers from the first five trials but not the sixth.

The chief justice tries at various times to move the discussion toward a general principle.

“We’re sort of conducting this as if it were one case,” he tells Davis. “And in terms of a broader rule, do you recognize or do we recognize in our precedent any restriction on the prior history that can be brought up with respect to a current case?”

When Davis says no, the chief justice asks the question in a slightly different way, as if to make sure he is hearing the state’s lawyer correctly.

“My point is, is there anything in our precedent that suggests that there ought to be a limitation on looking to the history of the prosecutor involved?” Davis stands by his concession.

“There’s no limitation on the history,” he says. “I think certainly the precedent says that you have to consider it.”

Sotomayor, a former assistant district attorney in Manhattan, tells Davis that she tried to conduct some research on formalized principles for when a particular prosecutor should no longer be the one to keep retrying a case.

“At least my former state prosecutor’s office would have substituted attorneys long before the fifth, sixth trial,” she says. “[I]t does seem odd to me that any prosecutor would continue to try a case with this history.”

Davis agrees with her that it is “an unusual circumstance, an unusual case with these six trials having been all tried by the same prosecutor. But I would resubmit, again, that the decision of the Mississippi Supreme Court in this instance was not violative of Batson and its progeny.”

Roberts informs Johnson that she has four minutes for rebuttal. She rises and says, “Unless this court has further questions, I will waive rebuttal.”

Not so fast. Someone has a further question. Thomas has been leaning forward as if he were itching to ask a question, but he does that from time to time and it is usually just a tease.

Today, he will ask his first questions at oral argument since his 2016 questions in Voisine v. United States, a case about firearms possession by convicted felons. (The questions he asked that day were his first serious ones in more than 10 years.)

“Ms. Johnson, did you — would you be kind enough to tell me whether or not you exercised any peremptories?” he says.

She informs him she was not Flowers’s trial counsel, to which Thomas says, “Well, … were any peremptories exercised by the defendant?”

Yes, she says.

“And what was the race of the jurors struck there?” continues Thomas, who was the lone dissenter in Foster v. Chatman.

“She only exercised peremptories against white jurors,” Johnson says. “But I would add that the motive — her motivation is not the question here. The question is the motivation of Doug Evans.”

Sotomayor chimes in with some help, pointing out that the defendant’s lawyer didn’t have much opportunity to strike black jurors.

Johnson decides that she will make a concluding statement after all.

“When all of the evidence in this case is considered, just as in Foster versus Chatman, the conclusion that race was a substantial part of Evans’ motivation is inescapable, and the Mississippi Supreme Court’s conclusion to the contrary is clearly erroneous,” she says.

And with that, the case is submitted.

***

Past cases linked to in this post:

Batson v. Kentucky, 476 U.S. 79 (1986)
Foster v. Chatman, 136 S. Ct. 1737 (2016)
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)
Voisine v. United States, 136 S. Ct. 2272 (2016)

The post A “view” from the courtroom: Trials of Mississippi appeared first on SCOTUSblog.

The Atlantic Politics & Policy Daily: Mueller-ing It Over

On March 21, 2019 By admin

• Breaking News

What We’re Following Today

It’s Wednesday, March 20.

‣  President Donald Trump told reporters at the White House today that he thinks Special Counsel Robert Mueller’s final report on his investigation into Russian interference in the presidential election should be made public.

Here’s what else we’re watching:

Mother Russia: Maria Butina, the first Russian to plead guilty to attempting to influence American policy makers before the 2016 election, has had a bad year. She’s currently being held in a Northern Virginia detention center awaiting sentencing. But she still has powerful allies: An NGO partly funded by the Kremlin is paying her legal bills, and as Natasha Bertrand reports, “One of her backers has been trying to promote fringe separatist movements in the U.S. since well before 2016.” The mystery of Russian influence operations, and Butina’s role in them, continues.

A Segregated System: When data released by New York this week revealed that out of the 952 students accepted into the city’s elite Stuyvesant High School for the next school year, just seven were black, the city erupted in outrage. Black-student enrollment at Stuyvesant peaked in 1975, with 303 black students out of 2,536 total students. In 2000, that number dropped to 109. Last year, there were 24. This is the nth verse of the same story for elite New York schools, writes Adam Harris.

Facebook Folds: In a victory for civil-rights groups across the country, Facebook just settled in a landmark case. For years, Facebook’s platform allowed advertisers to  filter home or job postings from reaching specific groups such as women, people over 55, or African Americans. Facebook was slow to change, and the groups sued. After years of negotiating, the tech giant reached a settlement and agreed to create a separate advertising portal to help prevent such discrimination. “The good news is: By the end of the year, civil-rights protections will be equal on Facebook and the media platforms that came before it,” writes Alexis C. Madrigal. “The bad news is: all the years before that was true.”

— Madeleine Carlisle and Olivia Paschal

Snapshot

Senator Bernie Sanders greets workers at a rally at UCLA. Members of a union representing research and technical workers walked picket lines Wednesday at University of California campuses and hospitals in a one-day strike amid a lengthening stretch of unsuccessful contract negotiations. (Richard Vogel / AP)

Ideas From The Atlantic

Americans Are Seeing Threats in the Wrong Places (Janet Napolitano with Karen Breslau)
“In the four years I led the Department of Homeland Security, I learned from the inside that the greatest threats to our safety play out differently from how political speeches and news reports might have us believe. True security means educating the public about which dangers are real and likely and which are not.”→ Read on.

The Art of a Monster (Caitlin Flanagan)
“Through this terrible man, this destroyer, poured a force that can only be truthfully described as art. Michael Jackson’s dancing is no mortal enterprise: James Brown’s shuffle, Fred Astaire’s precision, and some other element that exists so far beyond anything as simple as influence, or talent, that we can only say we know it when we see it. It’s not a gift; it’s the gift itself. The ancient question: What moral stain awaits us if we cannot abandon the art of a monster? None.”→ Read on.

Sometimes the Supreme Court Sticks to the Law (Garrett Epps)
“The Court granted certiorari in four new criminal-justice cases that, by and large, lack a strong partisan valence. These cases will involve the Court doing, well, you know, law, and in particular, cleaning up some loose ends of its criminal jurisprudence.”→ Read on.

What Else We’re Reading

‣This South Dakota Law Is a Gift to Bad Cops (Matthew Harwood, Reason)
‣Andrew Yang, We’ll See You on the Debate Stage (Jim Geraghty, National Review)
‣Beto O’Rourke’s Health Care Proposal Is Not Medicare for All, but It Is Ambitious (Jordan Weissmann, Slate)
‣Meet a Network of Volunteers Helping With Assisted Suicide (Katie Engelhart, The California Sunday Magazine)
‣Immigration Officials Accused of Targeting Faith Leader and Religious Groups (Jack Jenkins, Religion News Service)
‣To Revive Rural America, We Must Fix Our Broken Food System (Austin Frerick, The American Conservative)

One More Thing…

Say It Ain’t So: Why aren’t more movies made about us journalists? In author Tom Rosenstiel’s opinion, “In political fiction at least, journalists don’t make great protagonists.”

We’re always looking for ways to improve The Politics & Policy Daily. Comments, questions, typos, grievances and groans related to our puns? Let us know anytime here.

Were you forwarded this newsletter? Sign up for our daily politics email here. We have many other free email newsletters on a variety of other topics. Find the full list here.

There Is No Way to Prevent the Next Cheating Scandal

On March 20, 2019 By admin

• Breaking News

The college-admissions scandal that led to federal bribery charges against dozens of parents last week unfolded at selective universities that pride themselves on “holistic” evaluations of their applicants. This process typically means that several admissions officers review a file and consider factors beyond grades and test scores, often intangible qualities that aren’t quantifiable and are usually gleaned from an applicant’s extracurricular activities, essays, and recommendations. This approach is nearly ubiquitous among selective schools.

Given this scrutiny of applications, among the questions raised following the Justice Department probe is how the actions of a few rogue coaches and SAT proctors could go totally undetected in these admissions offices. How did the alleged cheater not get caught?

Over the past four months, I have sat with admissions readers and committees at three selective colleges as they chose this fall’s freshman class, as part of research for a book I am writing about the inner workings of the admissions business. (None of the three schools I’m following for the book was named in the investigation.) While readers—as the people who review applications are called—would sometimes raise questions about absent pieces of information or other inconsistencies, the issues were usually minor: unfamiliar acronyms, missing scores for AP tests, or a recommendation that mentioned a school club not listed elsewhere in the file. Even in those cases, the readers usually didn’t have time to search the internet for additional information, so they moved on, assuming, perhaps, that these were oversights and nothing more.

[Read more: Why the college admissions scandal is so absurd]

Admissions counselors are not hired to be detectives. An ever-increasing number of applications have swamped admissions offices in recent years, resulting in faster reading of files. Whereas once readers could spend 16 to 20 minutes on a given applicant, the average is now around eight minutes. The high volume of applications and small number of staff leave the process vulnerable to embellishment or outright lying, especially at selective colleges where the competition for a scarce number of seats is fierce. Selective colleges—those that accept fewer than half of applicants—accounted for about a third of all college applications in 2017, but for only 20 percent of undergraduates enrolled in American higher education.

“The entire admissions process is built on trust,” says Michael Steidel, the dean of admission at Carnegie Mellon University. “There is a fear, as application pools grow and as time spent on a review is reduced, [that] there is opportunity for problems.” Moreover, even if deans suspect fraud, federal antitrust laws prohibit universities from exchanging information about applicants.

Admissions deans I spoke with say fraud like that at the center of Operation Varsity Blues—the FBI’s nickname for the investigation—is likely rare, but they readily admit that it’s difficult to track. Some recent incidents give admissions officials cause for concern.

Last year, The New York Times found that a private high school in Louisiana, T.M. Landry College Preparatory School, forged transcripts and fabricated stories for application essays so that students would get accepted into selective colleges, including Yale, Brown, and Princeton. Two years ago, Technolutions, a company that operates a popular database system used by nearly 1,000 universities to organize applications, found that more than a quarter of recommendations provided for applicants to a graduate business school were all written on the same computer. But Alexander Clark, the CEO of Technolutions, told me his company’s system, called Slate, is unable to similarly track the so-called metadata of undergraduate applications because they are transmitted to colleges on platforms operated by the Common Application or its competitor, the Coalition for Access, Affordability, and Success.   

Since the scandal broke last week, one element of the scheme troubling admissions deans is that a few of the schools named in the affidavit were allegedly betrayed by their own athletic coaches. Coaches had allegedly classified applicants as recruited athletes even though they had no experience playing the sport.

How colleges recruit athletes varies widely by school. In general, coaches recruit athletes well before their applications are submitted to the admissions office. At some schools, a specific number of slots are reserved for athletes. (Georgetown, for example, allocates about 158 slots a year to its coaches, according to the affidavit.) Typically, admissions officers “pre-read” the applications of highly rated athletes to see if they can make the cut academically, and most are officially accepted during the early-decision round of admissions in the fall.

[Read more: College sports are affirmative action for rich, white kids]

“When coaches say that this is a five-rated kid, we trust that,” says Chris Gruber, the vice president and dean of admission and financial aid at Davidson College in North Carolina, which competes at the Division I level. “At the same time, we have processes in place of checks and balances.”

When reviewing applications, Gruber and his staff keep an eye out for inconsistencies. For instance, if a student writes about the illness or death of a parent in the essay, that event is often reflected elsewhere in the application, perhaps in a recommendation. If not, “then you’re left wondering why no one else is talking about these things,” Gruber says.

Short of outright lying, high-school counselors I interviewed say the pressure on applicants to present a perfect picture in their application forces students to at times overstate their accomplishments or stretch stories in their essays. “Every student thinks they need a hook,” says Hannah Wolff, the college and career-center specialist at Langley High School in Virginia, who is also a part-time admissions reader at UC Berkeley. “They have an impression that being in the honor society, doing community service, getting all A’s in AP courses is not enough.”

All this has left admissions officers wondering if the overall application—test scores, grades, recommendations, extracurricular activities, and essays—remains an accurate portrayal of the student who is applying. “The concern I have is not fraud, but the overall fidelity of the correspondence they send us,” says one admission dean at a prominent university, who asked to remain anonymous to talk freely about the scandal. “Grades are inflated, activities are embellished, recommendations lack negative comments, and the standard now is test prep and multiple editors for essays.”

As a result, some admissions deans want to ask for different evidence of an applicant’s potential beyond the usual polished checklist. The coalition application, for instance, gives students a private virtual “locker” to upload materials, such as documents, photos, and videos, that they can later add to their application. For the past three years, students applying to Yale University have taken the option to use the coalition application to submit a document, image, audio file, or video instead of responding to two short essay prompts on the Common Application.

Meanwhile, a group of deans from selective colleges, including Bucknell University, MIT, and Swarthmore College, are examining the use of assessment tools to measure an applicant’s character attributes. “We are not saying throw out testing and replace it with noncognitive measures,” says William T. Conley, the vice president for enrollment management at Bucknell. “But we know that things like persistence and teamwork are important to success in college and afterwards, and they should be part of holistic admissions.”

Inevitably, whenever colleges shift what they want in their application, students change their own behavior in response, or new industries sprout up to assist them. As long as applications to elite schools are abundant and seats scarce, applicants will look for ways—even sometimes those that push up against ethical lines—to stand out. And because admissions officers tend to trust applicants and have neither the time nor the resources of the FBI to check out anything they might question, the only safeguard built into any admissions system (now or in the future) is cultural norms about honesty.

Opinion analysis: Washington state motor-fuel tax violates Yakama Treaty

On March 20, 2019 By admin

• Breaking News

With a three-justice plurality opinion, a two-justice concurrence in the judgment and two dissents, Washington State Department of Licensing v. Cougar Den appears unusually fractured at first glance. But the disagreements among seven of the justices are relatively small, turning largely on whether and why Washington’s motor-fuel tax really burdens the Yakama treaty right to travel. Only the dissent by Justice Brett Kavanaugh, joined by Justice Clarence Thomas, indicates a fundamental disagreement about the rules of tribal treaty interpretation.

Justice Stephen Breyer’s plurality opinion, joined by Justices Sonia Sotomayor and Elena Kagan, holds that an 1855 treaty guaranteeing the Yakama “the right, in common with citizens of the United States, to travel upon all public highways,” pre-empts a tax triggered when motor fuel “enters into [Washington] state.” The tax exempts entry by “bulk transfer,” i.e., by “pipeline or ship” rather than “ground transportation. The Washington Supreme Court found that the tax targeted the right to travel by highway with fuel, and the Supreme Court agreed. Relying on time-honored canons of treaty interpretation, as well as the agreed-upon history of the treaty negotiations, the plurality found that the right to travel with goods for sale or distribution was a key part of the treaty. Because the motor-fuel tax imposed a “tax upon traveling with certain goods,” it impermissibly burdened that treaty right.

At oral argument the state argued, and the justices seemed concerned, that ruling for Cougar Den would permit travel with fireworks, diseased apples, or other goods hazardous to health and safety. The plurality, however, emphasized that “we do not say or imply that the treaty grants protection to carry any and all goods,” or that “the treaty deprives the State of the power to regulate to prevent danger to health and safety.” The plurality analogized to earlier decisions finding that the treaty right to fish “in common with” the citizens of the United States did not pre-empt state regulations “necessary to the conservation of fish” or “indispensable to the effectiveness of a state conservation program.” The court suggested that the records of the treaty negotiations might support a state right to regulate highway travel for health and safety, but did not squarely announce a state right to regulate.

Justice Neil Gorsuch, joined by Justice Ruth Bader Ginsburg, concurred in the judgment. The concurrence was even more emphatic about why the 1855 treaty should be interpreted as the Yakama understood it: It was drafted by the United States in a language the Yakamas could not read, and the Yakamas gave up a vast territory in exchange for their reserved treaty rights. “The Tribe bargained for a right to travel with goods off reservation just as it could on reservation and just as it had for centuries. If the State and federal governments do not like that result, they are free to bargain for more, but they do not get to rewrite the existing bargain in this Court.”

Unlike the plurality opinion, the concurrence came down firmly in favor of the power of the state to regulate treaty travel. By guaranteeing the right to use the highways “in common with the citizens of the United States,” the treaty indicated that tribal members knew they would have to “accept regulations designed to allow the two groups’ safe coexistence.” This would include “critical safety regulation[s]” on the highways. Although diseased apples should be regulated where grown or sold, if they “somehow pose a threat to safe travel on the highways,” Washington could regulate them, “just as the State may require tribal members to abide nondiscriminatory regulations governing the safe transportation of flammable cargo.”

But if the concurring justices only wanted to express their opinion on something the Supreme Court did not decide, why concur in the judgment only, rather than in the opinion? Chief Justice John Roberts’ dissent suggests that the plurality held that the treaty pre-empts any law that burdens the Yakamas when traveling on the highways, while the concurrence relied more on the right to travel with goods, but the difference seems slim. Perhaps the concurring justices disagreed that the court should grant deference to the Washington Supreme Court’s interpretation of the state statute, or with the formalist approach the court took in determining that the fuel tax was a tax on travel. Both concerns would be consistent with Ginsburg’s 2005 dissent in Wagnon v. Prairie Band Potawatomi Nation, but both seem like something the five justices could have resolved in the course of issuing a majority opinion.

Roberts wrote a dissent joined by Thomas, Justice Samuel Alito and Kavanaugh. The dissent disagreed that the tax falls on travel with, rather than possession of, fuel, noting that the same per-gallon tax would apply if the fuel entered by rail, barge or pipeline. Because the tax burdens possession rather than travel, the dissenters argued, it does not affect the treaty right. The dissenters were also dubious that the treaty would permit state regulation of travel to protect health and safety.

Although the chief justice’s dissent did not raise any fundamental disagreement regarding treaty law, Kavanaugh proposed an interpretation that departs from past precedent. Joined by Thomas, he argued that the “in common with” language meant that the treaty guaranteed the Yakamas only the right “to travel on the public highways on equal terms with other U.S. citizens.” The state, therefore, could apply any nondiscriminatory laws to that travel. This is a possible interpretation of the treaty text, but it runs up against more than a century of Supreme Court precedent, as well as (Gorsuch slyly noted) the treaty’s “original meaning.”

In United States v. Winans, the Supreme Court in 1905 rejected precisely this interpretation of the same treaty’s guarantee to the Yakamas of rights to fish “in common with” U.S. citizens at their usual and accustomed fishing grounds. Winans called the argument that the treaty guaranteed no more than the fishing rights of any white man “certainly an impotent outcome to negotiations and a convention which seemed to promise more, and give the word of the Nation for more.” As Breyer’s and Gorsuch’s opinions noted, the Supreme Court has rejected Kavanaugh’s interpretation of the “in common with” language several times since Winans. Gorsuch also highlighted the “uncontested factual findings” establishing that this was not how the treaty was understood when drafted: “Our job in this case is to interpret the treaty as the Yakamas originally understood it in 1855–not in light of new lawyerly glosses conjured up for litigation a continent away and more than 150 years after the fact.” Although Kavanaugh’s questions during oral argument appeared receptive to the treaty argument, this opinion suggests a willingness to disregard established doctrines of federal Indian law.

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Past cases linked to in this post:

United States v. Winans, 198 U.S. 371 (1905)
Wagnon v. Prairie Band, 546 U.S. 95 (2005)

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