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9th Circuit Refuses to Issue Stay on Immigration Travel Ban Restraining Order

The court case over the travel ban on people from seven majority-Muslim countries won’t be dropped, as the 9th Circuit Court of Appeals rejected a request from the Justice Department to put it on hold until a new executive order is issued.

The DOJ asked the federal appeals court to put the case on hold after it had upheld a restraining order against enforcing the ban in mid-February. On Monday, the 9th Circuit declined to do so.

President Donald Trump is expected to issue a replacement order on Wednesday.

During the daily White House press briefing, press secretary Sean Spicer said he would not address the ruling because he had not a chance to read it, and asked for a chance to speak with the White House Counsel’s Office.

“The president has made a commitment right now to continue to defend what we did,” Spicer said, “because this is the strategy that he believes that we had the authority vested in US Code.”

“I think that it’s not a question of proving a point, it’s that the manner in which it was done in the first place,” he continued.

“And while the second executive order attempts to address the court’s concerns that they made, the goal is obviously to maintain the way that we did it the first time because we believe that the law is very clear about giving the president the authority that he needs to protect the country.”

On January 27, Trump signed an executive order that blocked people from seven majority-Muslim countries ‒ Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen ‒ from entering the US for 90 days. It also halted the US refugee program for 120 days.

Its rollout caused mass confusion, deportations and protests. There are at least 40 active lawsuits against the order in 17 states. On February 3, a federal judge issued a nationwide, temporary restraining order against enforcing the executive order. Days later, a three-judge panel for the 9th Circuit Court of Appeals upheld that TRO. Secretary of Homeland Security John Kelly took the blame for the poor rollout.

The ruling comes just hours after it was revealed that the president of UEFA, football’s governing body in Europe, said that Trump’s “America first” policies, including the temporary travel ban, could harm the United States’ bid to hold the 2026 World Cup.

“It will be part of the evaluation, and I am sure it will not help the United States to get the World Cup,” Aleksander Ceferin told the New York Times. “If players cannot come because of political decisions, or populist decisions, then the World Cup cannot be played there. It is true for the United States, but also for all the other countries that would like to organize a World Cup.”

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Oregon’s Governor and Attorney General took Campaign Money from Companies with Billions in State Contracts

As the state contemplates an income tax hike, Oregon’s corporate entities lined their pockets with taxpayer money.

In 2016, as politicians across America were fleeing voter wrath, Oregon’s governor and attorney general were blazing an unlikely trail – accepting hundreds of thousands of dollars in campaign donations from businesses with state contracts.

Since 1940, at the federal level, individuals and entities negotiating or working under federal contracts are prohibited from giving political cash to candidates, parties or committees. In Oregon, however, this political patronage is perfectly legal, at least for now.

Our analysis at American Transparency (OpenTheBooks.com) found 207 state contractors gave $805,876 in campaign cash to Governor Kate Brown ($518,203) and Attorney General Ellen Rosenblum ($287,673) since 2012. These businesses hold lifetime state contracts worth at least $2.6 billion. State contractor donations to the governor and attorney general represent 57 percent of current cash on hand in their campaign committees.

 We found the data by looking at a universe of companies or their affiliated employees funding Brown or Rosenblum’s campaigns since 2012. We then matched those company names with the contract database provided by the State of Oregon. It’s a trail of conflicts of interest paved with campaign cash and contractor payments.

Oregon Gov, Kate Brown speaks to the crowd of supporters after being elected at the Oregon Convention Center in Portland, Ore., on Tuesday, Nov. 8, 2016. (AP Photo/Steve Dykes)

We found 41 law firms holding state contracts with a lifetime value of nearly $50 million who gave political donations to Rosenblum ($196,093 in donations) and Brown ($89,958 in donations) since 2012. Oregon outsources legal work to these firms despite Rosenblum’s Department of Justice employing up to 1,228 staffers at an annual taxpayer cost of $74 million. Why put state employees to work when you can outsource it to potential donors? By comparison, the Attorneys General of Illinois and New York have 875 and 1,685 employees respectively.

State campaign disclosures show that firms themselves, or their affiliated partners, principals, and employees gave the following:

  • Markowitz Herbold PC – $25,084 in campaign donations to the governor and AG. Separately, the firm received new and amended state contracts valued at $13 million from 2013-2015.
  • Orrick, Herrington & Sutcliffe LLP – $16,331 in campaign donations to the governor and AG. Separately, the firm held state contracts worth a lifetime value of $2.995 million.
  • Stoll, Stoll, Berne, Lokting & Shalchter PC – $15,617 in campaign donations to the governor and AG. Separately, the firm held contracts worth a lifetime value of $2.71 million.
  • Tonkon Torp LLP – $6,560 in campaign donations to the governor and AG. Separately, the firm held contracts worth a lifetime value of $2 million.
  • Ball Janik LLP – $4,600 in campaign donations to the governor and AG.  Separately, the firm held state contracts worth $1.11 million over their lifetime that were initiated, modified, or amended during 2011-2015.

Before publishing, we pressed the five law firms for confirmation, comment and context. While three responded, only Ball Janik confirmed their contracts.

We also found major U.S. corporations who reaped Oregon state contracts worth millions of dollars in lifetime value while each business, or affiliated employees, gave campaign cash to the governor or AG since 2012. Some of these businesses include Alaskan Air (contracts worth $25 million); AT&T ($32.4 million); Hewlett Packard ($38.5 million); Microsoft ($15.6 million); Pitney Bowes ($9.8 million); Verizon ($57.2 million); FedEx ($22 million); CH2M Hill ($129.9 million); and PacificSource Health ($82.4 million).

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Immigrants Probably Built Your Home

Drive by any housing project, notice who’s working, and one realizes home construction depends heavily on immigrant labor. Yahoo’s Melody Hahm writes, “The tight supply in home construction results from a shortage in able construction workers. And, given President Donald Trump’s aggressive ambitions to crack down on undocumented immigrants, homebuilders may have an even tougher time finding workers in the future, according to [Lawrence] Yun.”

With the border being much tighter, it may lead to a greater construction worker shortage.A framer or carpenter may have the skills, but if he or she doesn’t have the papers, the Trump administration intends, “to publicize crimes by undocumented immigrants; strip such immigrants of privacy protections; enlist local police officers as enforcers; erect new detention facilities; discourage asylum seekers; and, ultimately, speed up deportations,” reports The New York Times.

Back in 2006, Sanjay Bhatt, writing in The Seattle Times, pointed out that “Locally, many inspectors, construction foremen and union organizers estimate that in the last few years [illegal immigrants] have come to represent anywhere from half to 90 percent of the work force at residential job sites in the Puget Sound region. They dominate unskilled-labor crews and are prevalent among drywallers, framers, roofers and other semiskilled trades.” It was (and is) no different in Las Vegas, Atlanta, or anywhere else where houses are being built.

Mr. Yun, who is the National Association of Realtors’ chief economist, tells Hahm, “It’s widely known but less discussed that there are many undocumented workers at construction sites. And with the border being much tighter, it may lead to a greater construction worker shortage unless America can crank out people with the skills in construction, plumbing, lumber framing, and welding,”

Mr. Yun should know that here in the U.S. we want every able bodied person to go to college and be, as the song goes, doctors, lawyers and such. The National Center of Education Statistics provides the numbers, “Of the 1,870,000 bachelor’s degrees conferred in 2013–14, the greatest numbers of degrees were conferred in the fields of business (358,000), health professions and related programs (199,000), social sciences and history (173,000), psychology (117,000), biological and biomedical sciences (105,000), and education (99,000). At the master’s degree level, the greatest numbers of degrees were conferred in the fields of business (189,000), education (155,000), and health professions and related programs (97,000).”

America is turning out business majors, not framers and bricklayers. “The US has approximately 200,000 unfilled construction jobs, which represents an 81% increase over the last two years, according to estimates from the National Association of Homebuilders,” writes Hahm.

“Homebuilders keep delaying as to when they can dig the ground,” Mr. Yun said. “They’re actively looking for workers, but there just aren’t enough.”

While Mr. Trump campaigned on the idea that illegal immigrants are flooding the borders, the fact is, after the housing crash, most workers scattered, many back to their native countries. “The construction industry in the U.S. has lost 570,000 Mexican workers since 2007, many of whom have likely returned to their home country and will not return to the U.S. because of increased immigration control and economic opportunities in Mexico, according to a report released Monday,” wrote Kelly Knaub for Law.360.com in 2015.

Two-thirds of builders can’t find enough carpenters and framers.With young people being lured to college, the average age of skilled construction labor is increasing fast. “That’s what keeps me up at night,” Doug Bauer, CEO, TRI Pointe Homes, said in a statement released in a report by John Burns Real Estate Consulting. “Electricians, plumbers, framers — their average age is about 50.”

The report says two-thirds of builders can’t find enough carpenters and framers, and 40 to 50 percent of other builders say they can’t hire enough masons, painters, electricians, plumbers and roofers.

Five years ago 53 percent of skilled-trade workers were more than 45 years old, and nearly 20 percent were aged 55-64. Those percentages have only gone up since.

Immigrants have built this nation from the beginning. Chinese and Irish immigrants built the transcontinental railroad. Mr. Trump’s home town of New York is dominated by immigrant-controlled neighborhoods. “Of the 55 [New York] City neighborhoods defined by the U.S. Census Bureau, nine have immigrant populations that exceed 50 percent of the neighborhood’s total population. In another ten, immigrants account for between 40 percent and 50 percent of the total population,” states a report from the New York state Controller.

As for immigrants from south of the border, a NBER study “has found that low-skilled Mexican immigrants are more responsive to changes in employment, and are quick to relocate when there is a period of high unemployment in the area they live in.” This flexibility is good for the U.S. economy which often has a number of jobs that go unfilled.

Fewer immigrants means less skilled labor, higher prices, and fewer homes built. How can this make America great again?

Douglas French


Douglas French

Douglas French is an Associated Scholar at the Johnson Center at Troy University and adjunct professor at Georgia Military College. He is the author of three books: Early Speculative Bubbles and Increases in the Supply of Money, Walk Away, and The Failure of Common Knowledge.

This article was originally published on FEE.org. Read the original article.

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Welcome Aboard, But First US Marshals Will Scan Your Retina

For some 15 years, airport security has become steadily more invasive. There are ever more checkpoints, ever more requests for documents as you make your way from the airport entrance to the airplane. Passengers adapt to the new changes as they come. But my latest flight to Mexico, originating in Atlanta, presented all passengers with something I had never seen before.

We had already been through boarding pass checks, passport checks, scanners, and pat downs. At the gate, each passenger had already had their tickets scanned and we were all walking on the jet bridge to board. It’s at this point that most people assume that it is all done: finally we can enjoy some sense of normalcy.

This time was different. Halfway down the jetbridge, there was a new layer of security. Two US Marshals, heavily armed and dressed in dystopian-style black regalia, stood next to an upright machine with a glowing green eye. Every passenger, one by one, was told to step on a mat and look into the green scanner. It was scanning our eyes and matching that scan with the passport, which was also scanned (yet again).

Like everyone else, I complied. What was my choice? I guess I could have turned back at the point, decline to take the flight I had paid for, but it would be unclear what would then happen. After standing there for perhaps 8 seconds, the machine gave the go signal and I boarded.

I talked to a few passengers about this and others were just as shaken by the experience. They were reticent even to talk about it, as people tend to be when confronted with something like this.

I couldn’t find anyone who had ever seen something like this before. I wrote friends who travel internationally and none said they had ever seen anything like this.

I will tell you how it made me feel: like a prisoner in my own country. It’s one thing to control who comes into a country. But surveilling and permissioning American citizens as they leave their own country, even as they are about to board, is something else.

Where is the toggle switch that would have told the machine not to let me board, and who controls it? How prone is it to bureaucratic error? What happens to my scan now and who has access to it?

The scene reminded me of movies I’ve seen, like Hunger Games or 1984. It’s chilling and strange, even deeply alarming to anyone who has ever dreamed of what freedom might be like. It doesn’t look like this.

Why Now?

I’ve searched the web for some evidence that this new practice has been going on for a while and I just didn’t notice. I find nothing about it. I’ve looked to find some new order, maybe leftover from the Obama administration, that is just now being implemented. But I find nothing.

The only change I find has to do with new rules for Homeland Security just imposed by the Trump administration. They make deportation vastly easier for the government. I have no idea if these rules are the culprit for the intensified emigration checks.

What people don’t often consider is that every rule that pertains to immigration ultimately applies to emigration as well. Every rule that government has to treat immigrants a certain way also necessarily applies to citizens as well.

Chandran Kukathas is right when he says that “controlling immigration means controlling everyone.”

Regulating immigration is not just about how people arrive, but about what they do once they have entered a country. It is about controlling how long people stay, where they travel, and what they do. Most of all, it means controlling whether or not and for whom they work (paid or unpaid), what they accept in financial remuneration, and what they must do to remain in employment, for as long as that is permitted. Yet this is not possible without controlling citizens and existing residents, who must be regulated, monitored and policed to make sure that they comply with immigration laws.

To be sure, there might have been some tip off that security officials received that triggered these special measures for this flight only. Maybe they were looking for something, someone, in particular. Maybe this was a one-time thing and will not become routine.

The point is that it happened without any change in the laws or regulations. Whatever the reason, it was some decision made by security. It can happen on any flight for any reason. And who is in charge of making that decision?

Think of it: there might be no getting out of the country without subjecting yourself to this process. On the plane, finally, my mind raced through the deeper history here. Passports as we know them are only a little over a century old. In the late 19th century, the apotheosis of the liberal age, there were no passports. You could travel anywhere in the world through whatever means you could find. Nationalism unleashed by World War I ended that.

And here we are today, with ever more controls, seeming to follow Orwell’s blueprint for how to end whatever practical freedoms we have left. And we are going this way despite the absence of any real crisis, any imminent threat? The driving force seems to be this: our own government’s desire to control every aspect of our lives.

Think of it: there might be no getting out of the country without subjecting yourself to this process. It’s a digital Berlin Wall. This is what it means to put “security” ahead of freedom: you get neither.

Jeffrey Tucker


Jeffrey Tucker

Jeffrey Tucker is Director of Content for the Foundation for Economic Education. He is also Chief Liberty Officer and founder of Liberty.me, Distinguished Honorary Member of Mises Brazil, research fellow at the Acton Institute, policy adviser of the Heartland Institute, founder of the CryptoCurrency Conference, member of the editorial board of the Molinari Review, an advisor to the blockchain application builder Factom, and author of five books. He has written 150 introductions to books and many thousands of articles appearing in the scholarly and popular press.

This article was originally published on FEE.org. Read the original article.

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Beauty and Truth: A Conversation on Liberty

A few months after my original article on “libertarian brutalism,” published by the Foundation for Economic Education, a very smart thinker named Robin Koerner reached out to me for an interview. It ended up being more of a discussion and then a co-led seminar. These interviews continued for three years. They have all been transcribed. You can download the full book here.

Robin was just discovering the fullness of the liberal tradition and I was just coming to terms with some intellectual failures in our ranks, failures that I worried were going to cause problems down the line. The many interviews that followed explored a huge range of topics in history, philosophy, economics, ethics, and aesthetics. They are all transcribed in FEE’s latest ebook, which you can find above. We are different people from different lands with different backgrounds but learned so much together during these times of incredible social and political upheaval.

The core of my case against brutalism is precisely that it imagines a libertarianism unhinged from the liberal tradition.

The interviews began only a little more than a year before Donald Trump appeared on the scene, and we both watched with morbid curiosity as vast numbers of former pro-liberty folks—people we had both imagined at least had the basics right—chase him all the way to the White House. Yes, it is hard for some to imagine why. And yet, the answer lies somewhere in these wonderful interviews we conducted, in which we chronicle the intellectual convolutions that happened in our ranks and to our country over the last few years.

Robin caught me at an interesting time. I had worked within one paradigm for most of my professional career, regarding the great struggle of our time as binary: a struggle between liberty and state, without complication or complexity. The state need to be eliminated, period. Within that paradigm, the answer to all problems seems obvious: get mad, get rid of the establishment, overthrow it, and watch liberty dawn.

I gradually came to realize that there are problems in the transition, so to speak. The revolutionaries can often pose a greater danger to public order than the state itself, and pose a different kind of threat to liberty (yes, I know that is unbearably obvious from a brief look at history). My proposed solution in avoiding this was to cultivate a more intense appreciation for the aesthetics of liberty as put on display within the liberal tradition itself, as exemplified by Smith, Hume, Jefferson, Tocqueville, and their successors.

The core of my case against brutalism is precisely that it imagines a libertarianism unhinged from the liberal tradition, boiled down to a few postulates and boiled back up again through anger and dogma. The results do not look and feel like liberty but rather the assertion of power. What is to be done? For libertarianism to become the humane outlook it is supposed to be, it needs to recapture its liberalism, without which it wouldn’t exist. (In fact, the words liberal and libertarian were definitionally indistinguishable to the postwar generation that first started using the term.)

Meanwhile, Robin knew exactly what I meant by that, having cut his teeth on the presidential campaign of 2012. He had come from a scientific background and for a long time, like many others, had accepted a statist outlook on politics by default, until he began to dig deeper and found himself attracted to the American Constitution and the English liberal tradition out of which it arose. His writings had made some waves during the years when Ron Paul was running for president, because of his capacity to speak to a broad range of humane concerns and in favor of diminishing the role of the state in our lives. He never took his outlook as far as I had mine: he stopped at what is called minarchism while I went all the way with an anarchist outlook.

And yet we had both begun to develop affections for the Hayekian view of society and politics as fragile, evolved, and contingent to some extent on time, place, and inherited tradition. Looking back at these conversations, I can see what we were both up to. We were struggling to shore up classical liberalism from the two great threats of our time: the ideological left and the ideological right. You can see as the conversations evolve that we grow ever more aware of this nature of this project and its challenges.

The future is unknown and yet shaped by the ideas we as a society hold in our hearts.

The thoughtfulness and calmness of these discussions belie the political moment in which we find ourselves. The left is out of ideas and out of money, soundly rejected at the ballot box in country after country. To the shock and amazement of many, the replacement hasn’t been a new liberty but a new threat. Arguably, a new anti-left movement rooted in nativism, nationalism, protectionism, and just as statist and sometimes more so than the left, has risen up to take its place. Some libertarians who had long been habituated to seeing only enemies on the left are a bit shell-shocked by the turn of events. You can see these things coming through in these discussions.

It became fascinating to both of us how, once having covered the ins and outs of current politics, we tended to veer toward the topics of beauty and truth, for these are both areas that are eschewed by the dogmatic left and right, and are all too often neglected within the libertarian paradigm as well. And yet these topics lie at the core of the meaning of our lives. Any political vision that neglects to insist on them is necessarily detached from human reality.

The political question really comes down to what institutions need to be in place to allow beauty and truth to thrive in society. Is there ever a role for the state to nudge the social order in the direction of what people think of as true and beautiful or do the statist means always tend toward the opposite—driving out what is true and beautiful? If libertarians do not grapple with this topic and provide compelling answers, we will necessarily fail to persuade.

Of this we are both convinced: the future is unknown and yet shaped by the ideas we as a society hold in our hearts concerning the look and feel of the good life. The defenders of freedom need to step up with public argument, hearts and minds all in, and we need to do so not with bombast and unhinged anger but with thoughtfulness and reason. These have always been the marks of genuine liberalism and will continue to be in the future.

Jeffrey Tucker


Jeffrey Tucker

Jeffrey Tucker is Director of Content for the Foundation for Economic Education. He is also Chief Liberty Officer and founder of Liberty.me, Distinguished Honorary Member of Mises Brazil, research fellow at the Acton Institute, policy adviser of the Heartland Institute, founder of the CryptoCurrency Conference, member of the editorial board of the Molinari Review, an advisor to the blockchain application builder Factom, and author of five books. He has written 150 introductions to books and many thousands of articles appearing in the scholarly and popular press.

This article was originally published on FEE.org. Read the original article.

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‘Monster’ ex-USA Gymnastics doctor charged with sex assault nine girls

A Michigan sports doctor who treated elite female U.S. gymnasts was charged Wednesday with sexually assaulting nine girls, including some too reluctant to speak up about the alleged abuse years ago because he was considered a “god.”

Roughly two dozen charges were filed against Dr. Larry Nassar, the first criminal cases related to his work at Michigan State University where he was the preferred doctor for gymnasts in the region who had back or hip injuries. He’s also being sued by dozens of women and girls, including 2000 Olympian Jamie Dantzscher, who described the assaults on “60 Minutes” Sunday.

“This guy is disgusting. This guy is despicable,” Michigan Attorney General Bill Schuette told reporters. “He is a monster.”

 Nassar, 53, was a doctor for Indianapolis-based USA Gymnastics, until summer 2015, accompanying the women’s team at international competitions, including the Olympics. Michigan State fired him last September after he violated restrictions that were put in place in 2014 following a complaint.

Nassar’s attorneys declined to comment Wednesday. He has denied abuse, and, in an email last fall to his Michigan State bosses, said, “I will overcome this.”

The charges were filed in two cases: one in Ingham County, the home of Michigan State, and the other nearby in Eaton County, where Nassar saw injured girls at Gedderts’ Twistars Club, a gymnastics club.

He’s accused of sticking his fingers in their vaginas, without gloves, during treatments for various injuries. Parents were asked to leave the room or Nassar used a sheet or stood in a position to block any view, police said. Two girls were under age 13, and seven were 13 to 16.

“Dr. Nassar used his status and authority to engage in horrid sexual assaults under the guise of medical procedures,” Schuette said.

A girl identified as Victim B, now 21, said she was sexually assaulted by Nassar “‘more times than she could count,'” Det. Sgt. Andrea Munford wrote in an affidavit.

“Victim B stated that she and all the gymnasts trusted Nassar and that he was like a god to the gymnasts. … Because it was happening to all of them, they thought it was normal,” Munford said.

Munford said Nassar sometimes gave gifts to girls to keep their confidence, including leotards and pins from the Olympics. One victim quoted Nassar as saying, “We don’t tell parents about this because they wouldn’t understand,” a reference to vaginal penetration.

Schuette said more charges are coming. Michigan State University Police Chief James Dunlap said he has more than a dozen people working on the Nassar investigation.

Nassar suddenly came under intense scrutiny last summer when former gymnasts accused him of abuse, following an August report in the Indianapolis Star about how USA Gymnastics handled sexual abuse complaints against coaches and others.

Lawyers suing Michigan State on behalf of victims have accused the university of failing to do more to prevent Nassar’s alleged acts. In court filings, gymnastics coach Kathie Klages is accused of downplaying complaints about him in the late 1990s. She suddenly quit last week, a day after she was suspended for defending him in front of her team.

Michigan State is conducting an internal investigation of Nassar’s work.

“I am deeply troubled by the emerging details and recognize the courage it takes to come forward with information about personally traumatic events,” President Lou Anna Simon said Wednesday.

Besides the new criminal cases, Nassar faces charges in two cases that were filed in 2016 and are unrelated to his work as a doctor. He’s accused of possessing child pornography and molesting the daughter of family friends. He remains in jail without bond.

Dantzscher spoke to “60 Minutes” about her experiences with Nassar.

“He would put his fingers inside of me, move my leg around,” she “He would tell me I was going to feel a pop and that that would put my hips back and help my back pain.”

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Steve Bannon Believes Winter Is Coming

“History is seasonal and winter is coming.”

No, that’s not a Game of Thrones quote. It’s the last line of a 2010 documentary called Generation Zero, written and directed by Steven K. Bannon. Perhaps you’ve heard of him.

Strauss and Howe claimed that history runs in cycles.

Bannon is President Donald Trump’s senior counselor and chief ideologist. So great is his sway over the “leader of the free world” that Time Magazine recently dubbed him “the second most powerful man in the world.” He allegedly wrote most of Trump’s scathing inaugural address. He recently secured a seat in the National Security Council. And many observers see his fingertips on much of the administration’s initial flurry of executive orders, including the controversial travel ban.

Given this power, understanding Bannon’s belief that “winter is coming” to America becomes urgent. His lurid documentary was entirely premised on a theory of history formulated by William Strauss and Neil Howe, authors of The Fourth Turning: An American Prophecy. Howe himself delivered the film’s ominous closing prediction.

The Vision

Strauss and Howe claimed that history runs in cycles, each lasting roughly 80 years. Each cycle, or saeculum, consist of four phases, or “turnings.” By “winter,” Howe and Bannon were referring to the hugely important “fourth turning,” a cataclysmic crisis that ends an era and ushers in the next.

According to Strauss and Howe, all of the last three fourth turnings in American history culminated in wars, each bigger than the last: the Revolutionary War, the Civil War, and World War II. In Generation Zero, Bannon argues that the country is due for another fourth turning, and that the 2008 financial crisis, bailouts, and ensuing Tea Party reaction represented the beginning of the next one.

According to David Kaiser, one of the historians featured in Generation Zero, Bannon believes the coming “winter” will continue the pattern of being even worse than the last. Kaiser recalled Bannon making the extrapolation during the production of the film:

You have the American Revolution, you have the Civil War, you have World War II; they’re getting bigger and bigger. Clearly, he was anticipating that in this Fourth Turning there would be one at least as big.

It’s reasonable to infer that “at least as big” as World War II implies World War III.

Bannon seems to elaborate on the shape of this global clash in remarks made in subsequent years. In 2014, Bannon told an audience of conservative Catholic activists that “we’re at the very beginning stages of a very brutal and bloody conflict” in which his audience would be compelled to fight for their beliefs against “this new barbarity that’s starting, that will completely eradicate everything that we’ve been bequeathed over the last 2,000, 2,500 years.”

“We’re In a War”

Bannon then detailed three “converging tendencies” leading to “this new barbarity.”

Bannon’s crusader rhetoric finds its mirror image in the ideology of ISIS.

The first consisted of two pernicious strands of capitalism that he regarded as antithetical to what he called “enlightened capitalism.” There was the crony capitalism that was his chief target in Generation Zero. He also condemned “libertarian capitalism” for commodifying human beings.

The second strand was “an immense secularization of the West” and especially the youth.

Then he raised the third strand, saying “we are in an outright war against jihadist Islamic fascism. And this war is, I think, metastasizing far quicker than governments can handle it.” He later added, “we’re now, I believe, at the beginning stages of a global war against Islamic fascism.”

Later in the Q&A period, Bannon said:

If you look back at the long history of the Judeo-Christian West struggle against Islam, I believe that our forefathers kept their stance, and I think they did the right thing. I think they kept it out of the world, whether it was at Vienna, or Tours, or other places…

In November 2015, over a year later, his position had not changed. Bannon said, “…we’re in a war. We’re clearly going into, I think, a major shooting war in the Middle East again.”

Bannon’s crusader rhetoric finds its mirror image in the ideology of ISIS, which explicitly seeks to eliminate what it calls the “grayzone” of religious and cultural co-existence and to polarize the world into two warring camps: the “Crusader Camp” and the “Camp of (extremist) Islam.” The jihadis, like Bannon, believe that a global, apocalyptic “clash of civilizations” is inevitable. They seek to hasten that crisis by using terror attacks to elicit brutal western responses (like persecuting immigrants and Trump’s recent child-slaughtering raid in Yemen) in order to alienate and radicalize formerly non-violent Muslims. ISIS reportedly celebrated Trump’s sweeping immigration order, even dubbing it “the blessed ban,” because it “shows that there is a clash of civilizations, that Muslims are not welcome in America etc.”

While he regards radical Islam as the most pressing conflict, it is not the only one. In March 2016, Bannon anticipated a war with China:

We’re going to war in the South China Sea in five to 10 years. There’s no doubt about that. They’re taking their sandbars and making basically stationary aircraft carriers and putting missiles on those. They come here to the United States in front of our face – and you understand how important face is – and say it’s an ancient territorial sea.

Many anti-war libertarians hoped that the Trump administration would not only end the neocon-led era of Middle East interventionism but also thaw the new cold war with Russia. But in his 2014 remarks, Bannon, Trump’s chief strategist, said that even Putin would eventually have to be dealt with and that any current detente was merely strategic, for the purpose of dealing with the more pressing Islamic threat:

Because at the end of the day, I think that Putin and his cronies are really a kleptocracy, that are really an imperialist power that wants to expand. However, I really believe that in this current environment, where you’re facing a potential new caliphate that is very aggressive that is really a situation — I’m not saying we can put it on a back burner — but I think we have to deal with first things first.

Bannon seems to see conflict everywhere he looks: paranoid visions of expansionist incursions from all directions. This is symptomatic of what Ludwig von Mises called “warfare sociology.” According to Mises, such an ideology rejects the classical liberal notion of a natural harmony of interests based on the universal benefits of social cooperation and the division of labor. Instead, warfare sociology is rooted in an underlying philosophy according to which no party can gain except at the expense of another. In such a “zero sum” world, conflict among opposing interests is unavoidably endemic. In left-wing ideologies, this manifests as class warfare and identity politics. In right-wing ideologies, it manifests as culture warfare and the many manifestations of nationalism: protectionism (of which Bannon is an ardent advocate), wars, and geopolitical power plays. As Mises wrote:

In principle class ideology is no different from national ideology. In fact there is no contrast between the interests of particular nations and races. It is national ideology which first creates the belief in special interests and turns nations into special groups which fight each other. Nationalist ideology divides society vertically; the socialist ideology divides society horizontally.

Double-Timing History’s March

Historical determinists are rarely content to sit back and watch history unfurl.

All of this amounts to a bleak winter indeed. It might otherwise be dismissed as harmless crackpottery if it was not weaponized by Bannon’s sway over the man with the nuclear codes.

True believers in rigid theories of history tend toward fanatical, impervious dogmatism. Every major development is interpreted as a portent that confirms their theory: as another step in the inexorable march of history. And all evidence to the contrary is ignored or dismissed as insignificant counter-currents within the grand, unidirectional flow.

And historical determinists are rarely content to sit back and watch history unfurl. Like the Marxists, they often feel compelled to help along and hasten the inevitable. And prophecies of an inevitable war tend to be self-fulfilling when the prophet is in the position to start one. Steve Bannon, in bringing on the very winter he foresees, could be Cassandra and Agamemnon in one.

Dan Sanchez


Dan Sanchez

Dan Sanchez is Managing Editor of FEE.org. His writings are collected at DanSanchez.me.

This article was originally published on FEE.org. Read the original article.

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Supreme Court to Decide whether Constitution Grants Protections to Mexican Boy Killed by U.S. Patrol

Two very different factual scenarios surround the June 7, 2010, death of a 15-year-old Mexican boy at the border where Juarez, Mexico, meets El Paso, Texas.

But only one set of facts will be before the U.S. Supreme Court as it takes up an important case about deadly force by law enforcement and whether the Constitution’s protections reach across the border to a non-U.S. citizen.

The case of Hernandez v. Mesa comes amid the wider debate about illegal immigration and the call to strengthen the U.S.-Mexico border, and against a background of a troubling number of cross-border shootings by U.S. agents. The case is scheduled for argument Feb. 21.

“There is a very human story here,” says Deepak Gupta, a Washington, D.C.-based lawyer for the parents of Sergio A. Hernandez Guereca. “There was a boy who was killed by a border guard. Unfortunately, there are many others like him. This case is about whether they can get a remedy in U.S. courts.”

CONFLICTING ARGUMENTS

According to the lawsuit filed by Hernandez’s parents, the boy was a soccer lover who wanted to become a police officer. On the day in question, he was playing a game with his friends, which involved daring one another to run up the U.S. side of a concrete culvert that separates Juarez and El Paso to touch a border fence before they ran back down.

While the boys were playing, a border guard on a bicycle seized one of the them, and the others fled across the culvert back to the Mexico side of the narrow stream of the Rio Grande that runs through the culvert, according to court papers.

Hernandez ran past Jesus Mesa Jr., a U.S. Border Patrol agent, toward a pillar beneath a bridge on the Mexican side. Mesa quickly drew his firearm and shot Hernandez in the head, court papers say. Mesa and other Border Patrol agents who swarmed the scene didn’t provide the boy medical aid of any kind. Instead, they got back on their bikes and left, the lawsuit says. Hernandez died on the spot.

The Hernandez family’s version of events will come before the high court as it weighs three legal questions that stem from the family’s civil rights lawsuit in federal court, which seeks to hold U.S. agencies and Mesa, individually, liable in the youth’s death.

Because the defendants—Mesa and the government—won dismissal at an early stage of the case, federal civil rules require appellate courts to accept the plaintiff’s version as true for the purpose of deciding the legal questions before them.

“The pitch here is quite modest,” Gupta says. “It is asking the court to rule that when an officer is standing on the border and using lethal force, there is at least some minimal constitutional protection to the right to life and the right to be free from an extrajudicial execution.”

In Mesa’s version of events, Hernandez threw rocks at the agent when confronted about what might have been the boy’s involvement in the smuggling of aliens into the United States.

Randolph J. Ortega, an El Paso lawyer who represents Mesa, said in a preliminary Supreme Court brief that Department of Justice records show Hernandez had been arrested twice in the United States for alien smuggling and been returned to Mexico because of his juvenile status.

“In this case, you have persons attacking a law enforcement officer on an international border with rocks—the choice of weapon for alien smugglers,” Ortega said in the brief. “When looking at the facts available to Agent Mesa at the time of his encounter with Hernandez, … it is plain to see that, at the time of the shooting, it could be reasonably assumed by Agent Mesa that Hernandez was breaking the law as an alien smuggler.”

NO KNOWN REMEDY

The main legal question in the case concerns the prohibition on unjustified use of lethal force by law enforcement agents as construed under the Fourth Amendment. The Hernandez family’s suit also raised Fifth Amendment protections, but their appeal in the high court relies primarily on the Fourth Amendment.

In the Hernandez family’s case, Gupta asks whether a “formalist” or “functional” analysis applies to the extraterritorial application of the Fourth Amendment right to be free of unjustified lethal force.

Gupta argues that the decision in this case by the 5th U.S. Circuit Court of Appeals at New Orleans—that a non-U.S. citizen who stands just outside the U.S. border and is shot and killed by a law enforcement agent on U.S. soil may not assert a Fourth Amendment claim—is an extreme example of the formalism that the Supreme Court rejected in its 2008 decision in Boumediene v. Bush.

In Boumediene, a case about the rights of detainees of the U.S. Naval Station at Guantanamo Bay, Cuba, the Supreme Court held in an opinion by Justice Anthony M. Kennedy that the Constitution’s extraterritorial applications “turn on objective factors and practical concerns,” not a “formal sovereignty-based test.”

Gupta argues that the 5th Circuit mistakenly applied the reasoning of a four-justice plurality in a 1990 decision, United States v. Verdugo-Urquidez, which embraced a formalistic test that required sufficient connections to the United States for extraterritorial application of a U.S. constitutional right (in that case, the Fourth Amendment’s warrant requirement).

“We’re not arguing for a global Constitution or a global Fourth Amendment,” Gupta says. “It would not be anomalous to our traditions to apply the constitutional protections in this case.”

James E. Pfander, a law professor at Northwestern University Pritzker School of Law who co-wrote an amicus brief on the Hernandez family’s side, says that as in Boumediene, and unlike the situation in Verdugo-Urquidez, there does not appear to be conflict of laws between Mexico and the United States about this case.

“In other words, applying the U.S. Constitution here would not project U.S. law into Mexico in a way that would disrupt expectations there or interfere with any Mexican regulatory interests,” Pfander says.

The government of Mexico also filed a brief on the Hernandez family’s side, saying that it respects the right of the United States to interpret its own constitution. But the 5th Circuit’s decision in this case “effectively means the families of those killed may not obtain any remedy, no matter how unjustified the agents’ actions, if the victims happened to be on the Mexican side of the border when the agent opened fire.”

The DOJ investigated the border shooting and concluded in 2012 that there was insufficient evidence to support a criminal prosecution of Mesa. The federal government also declined Mexico’s request to extradite the agent for prosecution south of the border.

In an initial Supreme Court brief, the U.S. solicitor general’s office said that Hernandez’s death was “tragic,” and that the 5th Circuit correctly concluded that the Constitution did not protect the boy in these circumstances.

The solicitor general’s office argues that the family’s Fourth Amendment claim would fail even under the functionalist approach they urge on the court.

“Since Boumediene, other courts of appeals have recognized that Verdugo-Urquidez continues to govern the extraterritorial application of the Fourth Amendment,” the office said in its brief.

(The Department of Justice has filed criminal charges against a Border Patrol agent in another fatal cross-border shooting.)

PROTECTION FOR THE PEOPLE

The second question granted by the high court involves qualified immunity for Mesa. His lawyer, Ortega, argues that it is undisputed that the 15-year-old victim was a non-U.S. citizen without presence in, or substantial connection to, United States territory when he was killed.

The family “has failed to prove, at the time Agent Mesa found himself in the alleged incident, that any Fourth or Fifth Amendment rights were ‘clearly established’ to protect Hernandez,” Ortega says.

Gupta argues that Mesa learned only after the fact that Hernandez was a Mexican citizen with no connection to the United States. “Here, no reasonable officer in Mesa’s shoes would have thought it lawful to open fire on an unarmed civilian posing no threat to anyone,” Gupta says.

The final question in the case is one added by the Supreme Court when it granted review: whether the family’s claims may be asserted under Bivens v. Six Unknown Named Agents, the 1971 high court decision that found an implied cause of action for those who allege violations of certain constitutional rights by federal agents.

Pfander of Northwestern says that in recent years, the Supreme Court “has been quite reluctant to recognize ‘new’ rights to sue under Bivens, although there’s good reason to believe that Congress has offered some legislative support for more routine rights to sue” for constitutional violations under the Westfall Act of 1988.

This case comes with tragic facts; multiple, complex legal issues; and a charged backdrop against an often-tense U.S.-Mexico border.

At a minimum, Pfander says, “we may learn about the law that applies to interactions along the Mexican border. The officer here faces a challenge in arguing essentially that no law governs his actions, at least no law that might give rise to a civil action for damages. A similar argument for a law-free zone in Guantanamo Bay helped to persuade Justice Kennedy that the Constitution did indeed apply.”

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West Virginia Judge is suspended for False Campaign Ads

A West Virginia judge has been suspended for two years and fined $15,000 for a campaign flier purporting to show his election opponent partying with President Barack Obama.

The Supreme Court of Appeals of West Virginia imposed the unpaid suspension against Judge Stephen Callaghan of Nicholas County in a Feb. 9 opinion (PDF), report the Charleston Gazette-Mail, the West Virginia Record, Metro News and the State Journal. The ad is included at the end of the opinion.

The incumbent depicted in Callaghan’s flier, Gary Johnson, had visited the White House for a federally required conference on fighting child trafficking. But he didn’t see Obama there, and there was no party and no function involving alcohol. The flier mailed out five days before the May 2016 election was “in every sense, materially false,” according to the decision. Callaghan won the election by 220 votes.

The flier placed digitally altered photos of Obama and Johnson next to each other. Obama was holding a beer and streamers were in the background. The caption read “Barack Obama & Gary Johnson Party at the White House.” The opposite side of the flier read, “While Nicholas County lost hundreds of jobs to Barack Obama’s coal policies, Judge Gary Johnson accepted an invitation from Obama to come to the White House to support Obama’s legislative agenda. That same month, news outlets reported a 76% drop in coal mining employment. Can we trust Judge Gary Johnson to defend Nicholas County against job-killer Barack Obama?”

After Johnson objected, Callaghan removed the flier from his Facebook pages and ran radio ads saying the flier’s “specific characterization of the White House visit may be inaccurate and misleading,” and “candidate Callaghan apologizes for any misunderstanding or inaccuracies.”

The case was heard by a retired supreme court justice and four circuit judges after the entire court recused itself. The court recused because it had hired Johnson as Supreme Court administrator.

Callaghan has argued the flier was rhetorical hyperbole or parody, and was not intended to be taken literally. Callaghan has filed a federal lawsuit contending that the disciplinary case violated his First Amendment rights. The federal court had put Callaghan’s suit on hold until the state court ruled.

Callaghan also made the First Amendment argument in the disciplinary case. The Supreme Court of Appeals said bans on knowing or reckless false statements by judicial candidates “have been universally upheld” and the ban was not unconstitutional as applied to Callaghan’s case.

The court also rejected Callaghan’s argument that the flier’s statements were substantially true. “Judge Johnson’s attendance at the meeting and conference is exaggerated, repurposed and mischaracterized to the point that it is rendered patently untrue,” the court said.

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MEMO Says Trump Might Use National Guard to Round Up Immigrants in 11 States

The Trump administration is considering a proposal to mobilize as many as 100,000 National Guard troops to round up unauthorized immigrants, including millions living nowhere near the Mexico border, according to a draft memo obtained by The Associated Press.

The 11-page document calls for the unprecedented militarization of immigration enforcement as far north as Portland, Oregon, and as far east as New Orleans, Louisiana.

Four states that border on Mexico are included in the proposal — California, Arizona, New Mexico and Texas — but it also encompasses seven states contiguous to those four — Oregon, Nevada, Utah, Colorado, Oklahoma, Arkansas and Louisiana.

 Governors in the 11 states would have a choice whether to have their guard troops participate, according to the memo, written by U.S. Homeland Security Secretary John Kelly, a retired four-star Marine general.

While National Guard personnel have been used to assist with immigration-related missions on the U.S.-Mexico border before, they have never been used as broadly or as far north.

The memo is addressed to the then-acting heads of U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection. It would serve as guidance to implement the wide-ranging executive order on immigration and border security that President Donald Trump signed Jan. 25. Such memos are routinely issued to supplement executive orders.

Also dated Jan. 25, the draft memo says participating troops would be authorized “to perform the functions of an immigration officer in relation to the investigation, apprehension and detention of aliens in the United States.” It describes how the troops would be activated under a revived state-federal partnership program, and states that personnel would be authorized to conduct searches and identify and arrest any unauthorized immigrants.

Requests to the White House and the Department of Homeland Security for comment and a status report on the proposal were not answered.

The draft document has circulated among DHS staff over the last two weeks. As recently as Friday, staffers in several different offices reported discussions were underway.

If implemented, the impact could be significant. Nearly one-half of the 11.1 million people residing in the U.S. without authorization live in the 11 states, according to Pew Research Center estimates based on 2014 Census data.

Use of National Guard troops would greatly increase the number of immigrants targeted in one of Trump’s executive orders last month, which expanded the definition of who could be considered a criminal and therefore a potential target for deportation. That order also allows immigration agents to prioritize removing anyone who has “committed acts that constitute a chargeable criminal offense.”

Under current rules, even if the proposal is implemented, there would not be immediate mass deportations. Those with existing deportation orders could be sent back to their countries of origin without additional court proceedings. But deportation orders generally would be needed for most other unauthorized immigrants.

The troops would not be nationalized, remaining under state control.

Spokespeople for the governors of Arizona, Utah, Nevada, California, Colorado, Oklahoma, Oregon and New Mexico said they were unaware of the proposal, and either declined to comment or said it was premature to discuss whether they would participate. The other three states did not immediately respond to the AP.

The proposal would extend the federal-local partnership program that President Barack Obama’s administration began scaling back in 2012 to address complaints that it promoted racial profiling.

The 287(g) program, which Trump included in his immigration executive order, gives local police, sheriff’s deputies and state troopers the authority to assist in the detection of immigrants who are in the U.S. illegally as a regular part of their law enforcement duties on the streets and in jails.

The draft memo also mentions other items included in Trump’s executive order, including the hiring of an additional 5,000 border agents, which needs financing from Congress, and his campaign promise to build a wall between the U.S. and Mexico.

The signed order contained no mention of the possible use of state National Guard troops.

According to the draft memo, the militarization effort would be proactive, specifically empowering Guard troops to solely carry out immigration enforcement, not as an add-on the way local law enforcement is used in the program.

Allowing Guard troops to operate inside non-border states also would go far beyond past deployments.

In addition to responding to natural or man-made disasters or for military protection of the population or critical infrastructure, state Guard forces have been used to assist with immigration-related tasks on the U.S.-Mexico border, including the construction of fences.

In the mid-2000s, President George W. Bush twice deployed Guard troops on the border to focus on non-law enforcement duties to help augment the Border Patrol as it bolstered its ranks. And in 2010, then-Arizona Gov. Jan Brewer announced a border security plan that included Guard reconnaissance, aerial patrolling and military exercises.

In July 2014, then-Texas Gov. Rick Perry ordered 1,000 National Guard troops to the border when the surge of migrant children fleeing violence in Central America overwhelmed U.S. officials responsible for their care. The Guard troops’ stated role on the border at the time was to provide extra sets of eyes but not make arrests.

Bush initiated the federal 287(g) program — named for a section of a 1996 immigration law — to allow specially trained local law enforcement officials to participate in immigration enforcement on the streets and check whether people held in local jails were in the country illegally. ICE trained and certified roughly 1,600 officers to carry out those checks from 2006 to 2015.

The memo describes the program as a “highly successful force multiplier” that identified more than 402,000 “removable aliens.”

But federal watchdogs were critical of how DHS ran the program, saying it was poorly supervised and provided insufficient training to officers, including on civil rights law. Obama phased out all the arrest power agreements in 2013 to instead focus on deporting recent border crossers and immigrants in the country illegally who posed a safety or national security threat.

Trump’s immigration strategy emerges as detentions at the nation’s southern border are down significantly from levels seen in the late 1990s and early 2000s. Last year, the arrest tally was the fifth-lowest since 1972. Deportations of people living in the U.S. illegally also increased under the Obama administration, though Republicans criticized Obama for setting prosecution guidelines that spared some groups from the threat of deportation, including those brought to the U.S. illegally as children.

Last week, ICE officers arrested more than 680 people around the country in what Kelly said were routine, targeted operations; advocates called the actions stepped-up enforcement under Trump.