From David French: Who Cares if the Whistleblower Is a Denizen of the Deep State?

The news cycle never sleeps. Public impeachment hearings are about to begin, today the Supreme Court hears oral arguments in a key constitutional case, a new study shows that millions of Americans just might value their job more than they value their spouse, and a Tennessee state court could help bring down the NCAA cartel. Today’s lineup:

1. Does it really matter if the whistleblower is a member of the deep-state #Resistance?

2. For the constitutional order to thrive, DACA must die.

3. “Workism” has a role in the decline of American institutions.

4. We’re all (LSU)(Auburn)(Memphis) Tigers today.

The whistleblower doesn’t matter any more.

Last week, just as House Democrats began releasing hundreds of pages of transcripts detailing the course of American diplomacy with Ukraine, I saw the president’s defenders ramp up their demands that the media publicly identify the whistleblower who helped launch the underlying investigation. Prominent Trump-supporting accounts began tweeting repetitively about the whistleblower, they identified him on Twitter, and Mollie Hemingway said his name on Fox News.

This is a distraction. It’s a misdirection designed to take the focus off the evidence and onto the “bias” that launched the investigation. I have no objection to the House calling the whistleblower if he has material, first-hand information regarding the underlying allegations, but at this point there’s so much first-hand evidence of a quid pro quo tying American aid to demands for Ukrainian investigations of the Bidens and Trump’s pet conspiracy theories that you could (and probably should) bring an entire impeachment case without once mentioning his name. The facts are the facts.

To put this in perspective, there are a truly enormous number of criminal prosecutions launched by informants or tipsters. And many, many of these informants or tipsters are motivated by pure animus against the target of their tip. Police should of course consider that animus when determining if the informant is sufficiently reliable to initiate a search, but if the informant has the goods, his animus doesn’t magically change the material facts.

If a neighbor tells the police that a man is cooking meth down the street, and the police find a meth lab in the man’s house, then it doesn’t matter one bit that the neighbor hates the meth cook with every fiber of his being. It doesn’t matter if the meth cook stole his wife and shot his dog. He’s still a meth cook, and there’s still meth in the house.

So we can just assume that the whistleblower is a Brennan CIA deep-state plant who keeps a life-size cardboard cutout of Rachel Maddow in his house, exclusively wears Women’s March hats in winter, and has four poodles he’s named Alexandria, Ayanna, Ilhan, and Rashida. That doesn’t change one single thing about the House deposition transcripts, Rudy Giuliani’s hare-brained diplomacy, or Trump’s allegedly “perfect” call.

One of my favorite classes in law school was a course on the ethics of criminal defense. Alan Dershowitz taught the class, and thanks to his celebrity we were able to hear from an all-star lineup of criminal defense attorneys, including attorneys for the mafia. There was one moment  I never forgot. A mafia lawyer related how he used Dr. Martin Luther King Jr.’s “Letter from a Birmingham Jail” during closing argument to get jurors to literally weep at the sheer betrayal by the FBI’s mob informant. The attorney had to emphasize the duplicity of the informant and the alleged unfairness and illegality of the process. Why? Because his client brutally murdered and dismembered his victims, and he certainly wasn’t going to defend that.

The jury wept, but it convicted his client anyway.

Process does matter, and if it seemed for a moment that the House was going to impeach on the basis of untested testimony by an anonymous informant, I’d be crying foul at the top of my lungs. But that’s not happening. If the House impeaches (and it likely will), it will do so on the basis of testimony of live witnesses who’ve been subject to thorough cross-examination. That’s entirely fair. The fact that these thorough examinations began in part through an anonymous allegation is entirely fair also. It’s fair enough to routinely initiate criminal prosecutions that deprive men of their liberty (and sometimes, through capital punishment, their lives). It’s certainly fair enough to initiate a constitutional process that can result in nothing more than removal from office.

DACA has to die for the Constitution to live.

By the time you read this newsletter, it’s likely that oral arguments will have just concluded in a Supreme Court case called Department of Homeland Security v. Regents of the University of California. Better known as the “DACA case,” DHS v. Regents represents an opportunity to right a constitutional wrong, limit the power of the presidency, and throw policy-making right back in Congress’s lap—where it belongs.

The facts of the case are relatively simple. As most Dispatch subscribers know, on June 15, 2012, the Obama administration issued a memorandum establishing a program now known as DACA, short for Deferred Action for Childhood Arrivals. The administration purported to exercise its “prosecutorial discretion” to defer immigration enforcement against otherwise-unlawful immigrants who arrived in the United States as children, had stayed out of trouble, and were either in school, had graduated from school, or were honorably discharged veterans.

As the Trump administration explained in its initial brief before the court, “Deferred action is a practice in which the Secretary exercises discretion to notify an alien of her decision to forbear from seeking his removal for a designated period.” According to relevant regulations, “[A]liens granted deferred action may apply for and receive work authorization for the duration of the deferred-action grant if they establish economic necessity.” Since the Obama administration implemented the program, roughly 800,000 Dreamers have enjoyed the benefits of deferred action, including the ability to work.

Putting aside for a moment the merits of the DACA policy, the Obama administration’s action suffered from a glaring flaw—it was a lawless abuse of executive authority. Congress is the lawmaker, not the president, and when Congress delegates rule-making to the executive branch, the executive branch has to go through the specific process outlined in the Administrative Procedure Act, which requires a public notice and comment period for proposed rules and imposes limits on rule-making authority. The Obama administration ignored that process. It simply wrote a memo.

When the Obama administration tried to expand DACA beyond childhood arrivals—through its so-called DAPA program—the Fifth Circuit Court of Appeals ruled that the administration violated the APA when it attempted to create yet another new immigration rule via mere memorandum. An equally divided Supreme Court affirmed the Fifth Circuit, and DAPA died.

DACA, however, clung to life. It was a popular program, and there were divisions in the Trump administration over its repeal. In September 2017, after Texas gave the Trump administration a deadline to rescind DACA or face litigation, the administration repealed the program. The Obama administration created the program by memorandum. The Trump administration ended it by memorandum.

Multiple plaintiffs sued in multiple jurisdictions, and courts in California, New York, and D.C. quickly enjoined the Trump administration’s actions. The Ninth Circuit affirmed the California injunction, and that case is now before the court.

Why would I possibly say that the Founders would cheer if DACA dies? It has nothing to do with the merits of the policy and everything to do with the structure of American government. The CATO Institute filed an outstanding amicus brief (shout-out to authors Josh Blackman and Ilya Shapiro), and I endorse very syllable of this paragraph:

The interest of amici here lies in preserving the separation of powers that maintains the rule of law at the heart of the Constitution’s protections for individual liberty. Amici generally support DACA-type policies that would normalize the immigration status of individuals who were brought to this country as children and have no criminal records. But the president cannot unilaterally make fundamental changes to immigration law—in conflict with the laws passed by Congress and in ways that go beyond constitutionally- authorized executive power. Nor does the president acquire more powers when Congress refuses to act, no matter how unjustified the congressional inaction is. The separation of powers prevents the president from expanding his own authority. Those same dynamics ensure that a subsequent president can reverse his predecessor’s unlawful executive actions.

DACA is good policy. It also happens to be bad law.

Moreover, the lower courts have compounded the problem. To protect the Obama administration’s program, courts have taken the curious position that a policy enacted in defiance of the APA can be repealed only through compliance with the APA. Or, put another way, judges are functionally ruling that Obama had the prosecutorial discretion to begin the DACA program, but Trump does not have the prosecutorial discretion to end it.

The Obama administration stepped outside of constitutional restraints, and many, many people cheered because they liked the underlying policy. Yet the growth of presidential power is an important contributor to political and cultural dysfunction. It neuters Congress, and it elevates the judicial branch as activists race to favorable courts to see nationwide injunctions against despised programs.

This entire trend increases national polarization. Why compromise when your partisan president can simply make the law? Progressive immigration advocates get DACA. Conservative immigration restrictionists get (part of) their wall. And then when courts step in, in those same partisans get furious. How dare you defy our president’s agenda. Thinking they can have it all, the activist often gets nothing, and bitterness continues to build.

The Trump administration is guilty of its own unconstitutional power-grabs. Its emergency declaration and wall-funding plan unlawfully circumvents congressional will. But here it is exactly right. Its decision to rescind DACA corrects an Obama-era abuse, and the Supreme Court should (and likely will) help stuff the presidency back into its proper constitutional box.

Can “workism” help explain the decline of American institutions?

Thanks to a Bradford Wilcox tweet, I stumbled across this rather interesting chart, from the Pew Research Center:

It comes from a Pew survey indicating that “the share of adults who have lived with a romantic partner is now higher than the share who have ever been married.” Wilcox called these numbers evidence of “workism,” which he defined as “making work the source and summit of your life.”

I was surprised by these numbers. Though I’m grateful for my career, it simply wouldn’t occur to me that it was more essential to live a fulfilling life than my marriage or my children. The chart brought to mind David Brooks’s memorable and important contrast between what he called “résumé virtues” and “eulogy virtues.”

The résumé virtues are the skills you bring to the marketplace. The eulogy virtues are the ones that are talked about at your funeral — whether you were kind, brave, honest or faithful. Were you capable of deep love?

We all know that the eulogy virtues are more important than the résumé ones. But our culture and our educational systems spend more time teaching the skills and strategies you need for career success than the qualities you need to radiate that sort of inner light. Many of us are clearer on how to build an external career than on how to build inner character.

When a culture is dominated by résumé virtues, it’s easy to see how institutions decline and people compromise their moral values. The creation and maintenance of a career becomes all-encompassing, and the very idea that one would risk their career for higher values or higher virtues is an anathema.

Not long ago, I wrote a piece for National Review called “Courage Is the Cure for Political Correctness.” I argued that there was a time, not long ago, when campus censorship was much worse than it is now. Universities enacted and enforced speech codes, and effective conservative legal organizations did not yet exist. I wrote:

These were the days of the Shadow University, the days before Twitter and today’s vibrant conservative media, when campus free-speech outrages occurred time and again without attracting the slightest bit of public attention. Even as a civil-libertarian resistance formed and began litigating on campus, many of the fact patterns were almost comically insane. University officials would destroy newspapers, force students to change their religious beliefs as a condition of graduation, and even—in one particularly memorable case—try a student group for the crime of desecrating the name of Allah after its members stomped on the flag of Hamas.

But those days are largely gone. The speech code regime has been defeated in court, and the minority of campuses that still maintain speech codes rarely enforce them, and if they do, they face an immediate and decisive legal response from one of several extremely well-funded and highly-capable conservative civil libertarian public interest law firms.

And yet, that freedom is largely squandered. Despite the prevalence of loud online voices and a few small (and sometimes-trollish) conservative campus organizations, vast numbers of conservative students—especially Christian conservatives—remain silent. They live in fear of their peers and their professors, and that fear continues to guide their actions and inhibit their speech when they graduate.

I’ve heard the same complaint time and time again: “I can’t risk my grades” or “I can’t risk my grad school recommendations” or “you couldn’t possibly ask me to risk my job.”

I raise the challenge of campus political correctness because that’s the phase of life when young adults start to form their professional habits and order their professional priorities. And outside of a small minority of voices that dominate the conversation, those habits and priorities are clear. Go along and get along. It’s worth it if you can strive and advance.

For quite a few people, when you ask them to take a stand for a particular set of values, like religious liberty or even the ultimate truths of their faith, it turns out that you’re asking them to risk the thing they value the most—the career they see as the summit of their life—for the thing they value less, the core virtues and values that build cultures and character.

Why won’t a politician speak the truth? Why won’t a pastor take responsibility for abuse in his church? Why do corporate executives turn a blind eye to rampant misconduct? Well, it turns out that when we ask for accountability and responsibility, we should understand that we’re asking leaders to potentially sacrifice the very thing that gives them more meaning and purpose than their relationship with their spouse or their own children. Workism has won.

Geaux Tigers, go Tigers, and—yes—go Tigers

I’ve got a few closing sports notes. First, if you’re an SEC football fan outside of Alabama, you’ve grown rightly weary of the long reign of Nick Saban and his Alabama Crimson Tide. So last weekend’s defeat at the hands of the LSU Tigers and Coach Ed Orgeron felt like sweet relief. Plus, it exposed more Americans to the greatest accent in college football. Was there ever a better match between coach and state?

But danger still lurks. If Alabama wins the rest of the way, it’s likely back in the College Football Playoff for what will feel like the 200th straight year. After all, it’s lost before, made the playoff, and won the national championship.

So we have to put our trust in another set of Tigers, the Auburn Tigers. LSU wounded the Alabama beast. It’s time for Auburn to put Alabama out of its misery. It’s done it before. It can do it again.

Finally, since we’re discussing Tigers as the instruments of American truth and justice, I’d be remiss not to pay tribute to the fighting spirit of the Memphis Tigers, warriors against the NCAA. Last week two of the most elite athletes in college sports—Ohio State defensive end Chase Young and University of Memphis big man James Wiseman—were subjected to questions about their NCAA eligibility.

Their “crimes” were petty. Young reportedly accepted a loan from a family friend so that his girlfriend could attend the 2019 Rose Bowl. He repaid the loan. Ohio State held him out of its game while waiting for the verdict from the NCAA. The situation involving Wiseman is slightly more complex. The Ringer’s Rodger Sherman explains:

Wiseman, a 7-foot-1 freshman who was considered the top recruit in the high school class of 2019, got dinged over payments his family received from Memphis head coach Penny Hardaway in 2017 when Wiseman’s family moved from Nashville to Memphis. The story is complicated. Hardaway, a Memphis alum and former NBA star, has turned the Tigers’ program into a national contender in his second season as head coach with a star-filled recruiting class highlighted by Wiseman. Wiseman’s attorney said Friday that Hardaway paid Wiseman’s family $11,500 in moving expenses and aid. But Hardaway was not Memphis’s head coach at the time of the payment—he was merely an assistant coach at a Memphis high school where Wiseman transferred and the namesake of the Team Penny program for whom Wiseman played his AAU ball.

The NCAA deemed Hardaway a “booster” even though—at the time—the only program Hardaway was “boosting” was his high school and AAU team, not the Memphis Tigers.

Ohio State is on the verge of a playoff bid, and it doesn’t want to do anything to jeopardize its potential title. As for Memphis? It’s taking the Leeroy Jenkins approach and is charging straight at the NCAA. It’s filed a lawsuit against the NCAA and is keeping Wiseman on the court. A Shelby County (Tennessee) Chancery Court judge issued a temporary restraining order against the NCAA, and it looks like Memphis has no intention of backing down.

Good. I’ve written about the NCAA many times before. It’s an organization that rakes in billions of dollars in rewards for the work of student-athletes and then actively suppresses the free market for their labor on and off campus. Thanks to state law, public pressure, and litigation, the NCAA is reconsidering its stance that prohibits athletes even from profiting from their own name, image, and likeness. That change can’t happen soon enough.

In the meantime, whether the battle is on the gridiron or in a Memphis courthouse, one thing is clear—we’re all Tigers today.