RUTHFULLY YOURS

Last Friday, President Trump signed an executive order listing “Core Principles” for reforming financial regulation, including the Democrats’ 2010 Dodd-Frank Act and the Consumer Financial Protection Bureau it created. Massachusetts senator Elizabeth Warren could hardly object to some of the principles — for example, “prevent taxpayer-funded bailouts” or “empower Americans to make independent financial decisions and informed choices in the marketplace” — because she herself had previously expressed similar sentiments. So instead, she quickly accused Republicans of “rushing to unleash the big banks” and “gut the consumer agency that has forced banks to give $12 billion back to customers they cheated.”

It’s time to retire these slurs, which Democrats have used for five years to attack any Republican who criticizes the CFPB or suggests ways to fix it. The vast majority of Republicans are not billionaires, or even millionaires, but they are all consumers, and they don’t enjoy being defrauded any more than Democrats do. Understanding economics and opposing policies that harm rather than protect consumers do not make one a bank worshipper.

Democrats’ latest talking point, that the CFPB has forced banks to give $12 billion back to their customers, is incorrect for the same reasons as the myth that the bureau forced Wells Fargo to return $185 million to its victims. The bank actually paid less than $5 million to the millions of customers who had unauthorized accounts opened in their names; the remaining fines disappeared into various government black holes.

It’s no surprise that Democrats and the liberal media shamelessly perpetuate such obvious lies about the CFPB, since its leadership by an ostensibly irremovable director, funding outside the congressional appropriations process, and ideological hiring turned the bureau into a political rather than professional organization. Just this week, Paul Krugman wrote in his New York Times column that the Wells Fargo “scandal only came to light thanks to the bureau.” In fact, a Los Angeles Times article exposed the fraud in 2013, and the CFPB allowed it to continue for three years while the Los Angeles City Attorney and Comptroller of the Currency led investigations that produced the $185 million settlement.

Those who defend the CFPB status quo by extolling the bureau’s “mission” are almost as dishonest as Krugman. Their straw-man argument implies that Republicans are calling for the bureau’s elimination, a goal all but its most strident critics abandoned years ago. Furthermore, the bureau almost immediately strayed from its official mission of consumer protection into consumer advocacy. The 20th century taught us that advocates most of all should never be given absolute power.

CFPB supporters are outraged that President Trump might remove Director Richard Cordray before he completes his five-year term. But Cordray has been director since January 4, 2012. He remains in office only because his illegal recess appointment was followed by confirmation 18 months later as Democrats threatened to change Senate filibuster rules. The Supreme Court subsequently held the three other recess appointments President Obama made on January 4, 2012, unconstitutional. However one feels about Cordray, he’s served a full term.

How would Republicans “gut” the CFPB? Exclusive jurisdiction over debt-collection laws could be returned to the Federal Trade Commission, and non-discriminatory–lending laws to the Department of Justice. Arbitration regulations could be limited to ensuring clear and meaningful waiver disclosures. The CFPB’s mission could be restricted to “establishing guidelines for consumer disclosure” and “evaluating financial products to eliminate the hidden tricks and traps that make some of them far more dangerous than others.”

In 2015, the New York Times wrote, fawningly:

Linda Sarsour is, in every sense of the phrase, a woman in a hurry. Only 35, she has already helped to partly dismantle the New York Police Department’s program of spying on the city’s Muslims and has worked with officials in City Hall to close public schools for the observance of two of Islam’s most important holy days, Eid al-Fitr and Eid al-Adha. From her base at the Arab American Association of New York, the nonprofit group in Bay Ridge, Brooklyn, where she is the executive director, Ms. Sarsour has taken on such issues as immigration policy, voter registration, mass incarceration, Islamophobia and the Police Department’s stop-and-frisk tactic. She has emerged in the last few years not only as one of the city’s, and the country’s, most vocal young Muslim-American advocates, but also as a potential — and rare Arab-American — candidate for office.

The profile was titled “Linda Sarsour Is a Brooklyn Homegirl in a Hijab,” but Sarsour is much more than that. Designated a “champion of change” by the Obama White House, she was a delegate to the 2016 Democratic National Convention and a Bernie Sanders surrogate. In January, she served as one of the four national co-chairs of the Women’s March on Washington. Currently, she is the lead plaintiff in a lawsuit filed against Donald Trump’s executive order on refugees.

The Times did not err in portraying Sarsour as a new left-wing champion, but like others who have lauded her, it omitted some details.

For starters, Sarsour has a number of curious opinions. In 2012, she suggested that the would-be bombing of a Detroit-bound flight (the so-called underwear bombing) was “the CIA all along.” In 2015, she told Rachel Maddow that Muslim “kids [are] being executed” in the United States. At December’s annual convention of the Muslim American Society and Islamic Circle of North America (MAS-ICNA), she told an audience that “the sacrifice the black Muslim slaves went through in this country is nothing compared to Islamophobia today.”

About “Islamophobia,” Sarsour’s quick to jump to conclusions — or make up incidents from whole cloth. In 2014, she penned an op-ed for CNN — “My Take: My Hijab Is My Hoodie” — in which she tied Trayvon Martin’s death to the 2012 death of Shaima Alawadi, a 32-year-old Iraqi Muslim woman fatally beaten at her home in El Cajon, California. Citing a note reportedly left at the scene that read, “Go back to your country, you terrorist,” Sarsour wrote that “bigotry against Muslims is quite acceptable,” and that Alawadi’s death was further indication of “the anti-Muslim environment we live in.” In fact, Alawadi was murdered by her husband, who was convicted in 2014 and sentenced to 26 years to life in prison.

It was also in 2014 that Sarsour fabricated a “hate crime” against herself. In September, Sarsour alleged that a man in her Bay Ridge, Brooklyn, neighborhood threatened to “cut off your head and see how your people will feel, you Arab b****” before throwing a garbage can at her. National media picked up the story, with ABC calling it “a violent act of hate” and Sarsour herself appearing for an interview on Melissa Harris-Perry’s MSNBC show. New York City mayor Bill de Blasio tweeted a reminder that the City “will never condone such glaring acts of bigotry and intolerance.”

In fact, Sarsour’s attacker was Brian Boshell, a mentally ill homeless man well-known in the Bay Ridge area for public outbursts. As National Review reported at the time, Boshell, a regular presence in the neighborhood for more than two decades, had been arrested nearly 60 times before accosting Sarsour, and even Muslim residents of Bay Ridge expressed skepticism that she didn’t know who he was.

The election of Donald J. Trump has thrust a number of self-righteous Jews on the left into a state of apoplexy. They lash out at his family, policies and anyone who associates with him.

Jared Kushner, his wife and extended family are relentlessly maligned. Other Jews connected or involved in any way with the Trump administration are fair game for verbal abuse, for having violated some alleged Jewish value.

Among those who have joined this assault is Jonathan Freedland, a columnist for English newspaper the Guardian. In an article in The Jewish Chronicle, the London-based Jewish weekly, entitled “Jews Must Oppose Trump’s New Order,” Freedland attacked Rabbi Marvin Hier, founder and dean of the Simon Wiesenthal Center, for blessing President Trump at his inauguration.

Freedland quotes Rabbi Jason Miller, an American Conservative rabbi, who claims Simon “Wiesenthal must be rolling in his grave knowing that the dean… of the center that bears his name will be bestowing a blessing on a man who bolstered his presidential campaign by genuflecting to the alt-right—a group that includes neo-Nazis and Holocaust-deniers. That Rabbi Hier would stand on such a public stage in front of the world and offer a blessing for a man who refused to distance himself from David Duke, a former Grand Wizard of the Ku Klux Klan, is completely anathema to his life’s work.”

Having served as director of the Simon Wiesenthal Center and having worked closely with Rabbi Hier and Simon Wiesenthal, I find Freeland’s assault on Rabbi Hier to be absurd, irresponsible and scurrilous.

Rabbi Marvin Hier’s participation in the inauguration was a true Kiddush Hashem, and not an act of “unprincipled opportunism,” as Freedland suggested. Rabbi Hier was selected because he is an internationally admired and respected independent moral voice.

For Rabbi Miller to claim that Wiesenthal would be “rolling in his grave” is ludicrous. I have no doubt that Simon Wiesenthal would have been extremely proud of Rabbi Hier’s participation and message. Inexplicably, Freedland did not mention that Rabbi Hier unequivocally protested when candidate Trump proposed a Muslim registry and the deportation of 12 million illegals. Nor, in contradistinction, is there a record of Freedland’s disapproval of the overt anti-Semitism of Rev. Wright and his longstanding relationship with Barack Obama.

Rich Lowry has a great column on our “overly sanctified” view of the judiciary. It comes amid the hysteria over President Trump’s rather mild rebuke of federal judges — particularly, James Robart, the district judge who imperiously issued a temporary restraining order (TRO) against Trump’s temporary travel ban excluding refugees and other aliens from seven countries. To a lesser extent, Trump has also groused about the three-judge panel from the Ninth Circuit Court of Appeals that on Thursday refused to overrule Robart’s TRO. (Note: This column was written before the Ninth Circuit’s decision was announced.)

Over the weekend, Trump notoriously tweeted that Robart is a “so-called judge.” On Wednesday, he conveyed exasperation over the previous evening’s Ninth Circuit oral argument, which the president saw as straying far afield of the clear statute that he argues — persuasively — authorizes the ban he has ordered.

I thought Trump’s comment about Robart was childish (and said so on Twitter). It was not the end of the world. After all, Robart’s order is appalling. It neither explains key conclusions nor addresses the clear statutory authority on which Trump relied. But Trump is the president of the United States now, not a celebrity commentator, and his dig was aimed at the judge personally, not at the poor quality of Robart’s work.

That said, can we dial back the hyperventilation over how Trump has purportedly called into question Robart’s legitimacy as a judge, or the legitimacy of the judiciary in general? “So-called” is something of a verbal tic with Trump when he is agitated — kind of like me muttering “jackass” (which I try to do under my breath rather than on Twitter). I wouldn’t read much into it.

I wouldn’t read much into it . . . but apparently Senator Richard Blumenthal (D., Conn.) would. With Judge Neil Gorsuch, Trump’s Supreme Court nominee, making the Senate rounds, Blumenthal took the opportunity to chat him up on the president’s remarks. There is now dispute between the Blumenthal and Gorsuch camps over whether the judge actually said he found Trump’s meanderings “demoralizing” and “disheartening.” Natch, it was enough to have the president burning up his keyboard with tweets about the senator’s misrepresentations — years back — about his military service during the Vietnam War. Sigh . . .

In any event, my objection to Trump’s tweet-burst had nothing to do with my tender sensibilities. It was tactical. As someone who used to do this sort of work for a living, I know taking a gratuitous swipe at a judge is never a smart move, especially when (a) it’s going to rub other judges the wrong way, and (b) the judge you’ve scorned is going to continue presiding over your case.

The Ninth Circuit is a tough enough slog for law enforcement on a good day; there was no need to give those guys reason to be more hostile. Plus, no matter what the Ninth Circuit decided to do there was a high likelihood the case would be sent back to Judge Robart for further proceedings. And as any litigator will tell you, a lot of things a judge decides in a case are not black-and-white. They are shades of gray as to which the judge has mounds of discretion. A judge holding a grudge can hurt you a million ways without triggering an actionable bias claim.

It’s often said that bad facts make bad law. In the case of the Ninth Circuit’s just-issued ruling continuing the nationwide injunction against Donald Trump’s executive order pausing immigration from seven jihadist or jihad-torn countries, it’s necessary to amend that saying. Bad facts combined with superheated politics can make terrible law.

Before addressing the court’s ruling, let’s refer back to some of the bad facts that made it more likely. Critically, the Trump administration issued a significant executive order (and then defended it in court) without laying any real factual foundation for its finding. Next, the administration enforced the order in a haphazard and unnecessarily cruel manner, initially including even green-card holders in its scope. By slamming the door (at least temporarily) in their faces, it created a crisis atmosphere that not only ramped up the political stakes, it told the court that the administration didn’t exactly know how to interpret its own order. This invites judicial meddling.

What does the opinion actually say? It made four critical rulings and one dangerous implication.

First, the court ruled that the states of Washington and Minnesota had standing to assert legal claims against the Trump administration — mainly on behalf of their state universities and the scholars and students impacted by the order. Here’s the court:

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.

Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants — merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary.

Second, the court held that it had the constitutional authority to review and determine the legality of the order. This is the least problematic aspect of the court’s ruling. I don’t agree with the administration’s assertion that it has “unreviewable authority to suspend the admission of any class of aliens.” The order should receive judicial deference, but it is still subject to judicial review. And that’s what the court said:

In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

President Trump’s immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy.

The Ninth Circuit Court of Appeals upheld a Seattle judge’s nationwide temporary restraining order against the refugee pause and travel suspension from seven countries with heightened terrorism risks. The court ruled that the government wasn’t likely to prevail on the merits in a suit brought by Washington state and Minnesota.

The liberals and never-Trump conservatives who’ve spent months predicting the arrival of American fascism are suddenly breast-beating about U.S. checks and balances. Apparently they lack confidence in American institutions unless they’re running them. But while we opposed Mr. Trump’s order on policy grounds, there is reason to worry now about judicial overreach.

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Remarkably, the three-judge panel’s 29-page decision doesn’t discuss the Supreme Court’s Youngstown doctrine, which teaches that the President’s actions are most legitimate under the Constitution when the executive works in concert with Congress. The plain text of the 1952 Immigration and Nationality Act gives the executive exclusive authority to suspend “the entry of any class of alien” that “would be detrimental to the interests of the United States.”

The Ninth Circuit also made a hash of the important limit on the judicial power called standing. The courts are only supposed to hear cases with specific and concrete injuries that they can resolve. Washington and Minnesota asserted vague and speculative harms to their public university systems, like being deprived of hypothetical talented immigrant students in the future. That’s not good enough under traditional Supreme Court standing doctrine.

Instead, the Ninth Circuit panel held that Mr. Trump’s order violated due process, such as ample notice of the new policy and a hearing for those affected. That might be true for lawful permanent residents travelling abroad, who were first included in the order and then excised under a memo from White House Counsel Don McGahn. (Then they, and not the states, should sue.)

But the Ninth Circuit’s due-process claims even apply to some categories of foreign nationals overseas who have yet to enter the country. The opinion repeatedly cites the Boumediene v. Bush decision of 2008, when the Supreme Court held that the enemy combatants at Guantanamo Bay have a right to challenge their detention by the government. CONTINUE AT SITE