Editorial Roundup: United States

Nov 28, 2023, 11:24 AM

Excerpts from recent editorials in the United States and abroad:

Nov. 27

The Washington Post on a new border deal

Republicans have one thing right about the border: The Biden administration’s strategy to keep asylum seekers from flocking to the United States is not working.

Many, including us, had high hopes. But last fiscal year’s 3.2 million “encounters ” with migrants — occurring either at official entry points or, more often, when the Border Patrol nabbed migrants entering illegally elsewhere — were the highest on record, by a very long shot. Chances are this fiscal year, they will be higher.

Democrats might flinch at the proposition, but the Republican idea that it should be tougher for asylum seekers to enter the United States makes some sense. Hundreds of thousands of people who reach the southern border every year hope to leave a dismal existence behind, but most are not fleeing persecution, in fear for life or limb. They seek asylum because the U.S. asylum system is the only door available to knock on.

Limiting access to asylum for many of these migrants — by, say, raising the standard of proof required to apply for those caught entering illegally, or staffing up immigration courts so they can adjudicate swiftly migrants’ asylum applications — might not only work as a deterrent, restoring calm to the border. It would also restore asylum to its purpose as route to safety for those who fear for their lives.

And, yet, Republicans must acknowledge that their proposals are not up to the problem. U.S. history is full of failed efforts to build an impenetrable border. These efforts have never been a match to the desperation driving migrants toward it. If Republicans want to put an end to the crush of asylum seekers at the border, they have to provide other options for migrants to come.

The Biden administration’s failure to deter migrants illustrates these points. In May, after the Biden administration stopped using the covid emergency as an excuse to expel them automatically, it said asylum seekers caught by the Border Patrol would be presumed ineligible for asylum, ejected and forbidden from returning for five years. Still, in October, 64 percent of the 189,000 captured were released with a notice to appear in court.

Of the 44,000 who arrived at official border crossings in that month, having made an appointment using the CBP One smartphone app while they were trekking through northern Mexico, pretty much all were waved through to see a judge later.

Because there are nowhere near enough judges to adjudicate these cases quickly — in June, there was a backlog of nearly 2.2 million people waiting to have their day in court — the final determination might take years. This is not a process that will persuade prospective migrants to decline to come because they have low chances of making it in.

There are reasons for this failure. One is a lack of resources: The Congressional Research Service concluded that to clear the backlog of asylum cases in 10 years would require at least 700 immigration judges on top of the 649 employed at the end of last fiscal year. The Biden administration, moreover, has refused to confine families or minors, which make up a large share of new arrivals, preferring to release them to wait for their cases to be heard than to confine them or expel them.

And yet it would be wrong to conclude that draconian policies such as those deployed during the Trump administration — when children were separated from their families and put in cages — would produce more effective deterrence; migrant encounters with the Border Patrol increased by 365 percent during the last 10 months of the Trump administration. There were more than 1.2 million pending asylum cases at the end of Trump’s term, up from 520,000 at the beginning.

Indeed, if there is anything to learn from the many attempts to fix the border crunch, it is that the best policies are those that open new doors. The offer of “humanitarian parole” for Cubans, Haitians and Nicaraguans applying from their home country radically cut border encounters. (It didn’t cut the arrivals from Venezuela in part because Venezuelans have a hard time obtaining passports, a requisite to apply.)

Efforts by Republicans to curtail new avenues for migration are counterproductive. If the objective is to transform migration into the United States from a crush at the border into an orderly process, the country should move beyond the efforts to harden the border — sensible though some might be — to create new doors into it.

A bipartisan agreement — more border resources and procedural reforms, in return for more avenues in — has the best shot of fixing the border.



Nov. 26

The Wall Street Journal on SCOTUS and the right to a trial by jury

The Supreme Court on Wednesday will hear the first of two landmark cases this term challenging the runaway administrative state. At stake in SEC v. Jarkesy is a bedrock constitutional principle that colonists fought to defend in the American revolution: the right to a trial by jury.

Congress in recent decades has expanded the enforcement powers of administrative agencies. The 2010 Dodd-Frank Act granted the Securities and Exchange Commission unbridled power to seek penalties administratively against any individual for violating securities laws. Democrats wanted to make it easier for the agency to punish misconduct.

Administrative tribunals let SEC prosecutors present hearsay evidence and unauthenticated documents that would be inadmissible in a traditional federal court. Defendants also enjoy fewer procedural protections including the tools of legal discovery. No surprise, then, that the SEC wins almost all cases it charges in-house. At the time of hedge-fund founder George Jarkesy’s administrative trial in 2014, the SEC had a 100% in-house victory rate versus 61% in federal court in 200 contested cases.

The SEC charged Mr. Jarkesy with securities fraud for allegedly inflating the value of fund assets, which the agency said allowed him to earn higher management fees. An administrative law judge (ALJ) ruled against Mr. Jarkesy. SEC commissioners upheld the ruling six years later, ordered him to pay a $300,000 penalty, and barred him from the industry.

Mr. Jarkesy appealed to the Fifth Circuit Court of Appeals, arguing that SEC tribunals violate his Seventh Amendment right to trial by jury. He also contended that multiple layers of for-cause tenure protections for ALJs from presidential removal offend the constitutional separation of powers. The Fifth Circuit ruled for Mr. Jarkesy on all counts.

In its High Court brief, the SEC argues the Seventh Amendment applies only when private—not public—rights are at stake. Earlier Court decisions have exempted claims from the right to a jury trial if they involve public rights such as government-granted benefits and privileges.

The SEC tries to muddy the public-private distinction by arguing that public rights are at stake whenever the government sues on behalf of the “public” to enforce laws. But as Mr. Jarkesy points out, the SEC is seeking to deprive him of a core right for a common-law offense that he allegedly committed against other private citizens.

The historical record supports his argument. Today’s administrative tribunals resemble those that the British government used to punish colonists and religious dissidents before the revolution. The British government used jury-less admiralty courts to impose civil penalties on colonists for violating the Sugar and Stamp Acts.

The Declaration of Independence cited the denial of “the benefits of trial by jury” as one of the colonists’ chief grievances. The Founders pushed to enshrine the right in the Constitution to prevent the new Congress from creating special forums to adjudicate civil penalties as Parliament and the King had done.

A jury trial in federal court ensures due process for defendants and protects against abuses of enforcement power. Underscoring this point, SEC enforcement staff were found in Mr. Jarkesy’s case and dozens of others to have improperly accessed privileged legal memos of agency lawyers involved in adjudicating their cases.

As for double removal protections for ALJs, the SEC says they are constitutionally permissible if deemed “best for the public interest.” But it proposes no limiting principle. ALJs can be fired only for “good cause” by a Merit Selection Review Board whose members can be removed only for “inefficiency, neglect of duty, or malfeasance in office.” In Free Enterprise Fund (2010), the Court struck down a similar scheme that insulated members of the Public Company Accounting Oversight Board with two layers of tenure protection.

Progressives say a ruling for Mr. Jarkesy would gut the administrative state, which is what they always say. But the SEC and other federal agencies could continue to litigate cases in-house that involve truly public rights such as veterans benefits and asylum claims. But they would have to go to federal court to impose civil penalties for common-law offenses.

Restoring the originalist interpretation of the Seventh Amendment would strengthen safeguards against tyrannical government.



Nov. 25

The New York Times on Israelis and Palestinians coexisting

It is said that wars end when both sides conclude they have nothing more to gain by fighting. By that logic, Israel and the Palestinians should have long ago agreed to the only solution that makes sense: separate states side by side. They’ve tried, again and again, but in this cauldron of religious passion and competing grievances, peace has always lost out. Is there any chance that things will be different when the guns fall silent this time?

On the face of it, it does not seem promising. The brutal attack by Hamas on Oct. 7 and the massive Israeli retaliatory assault on Gaza have already led to too much death and destruction and have ignited communal hatreds in the United States and beyond. Every eruption in the past — whether war, intifada or military raid — has only demonstrated that neither side can achieve its longed-for security, dignity or peace through violence. On the contrary, every eruption only hardens divisions and ensures more bloodshed next time.

In fact, what peace might look like is not a mystery: The shape of a Palestinian state has been explored in minute detail by successive peace conferences, meetings, negotiations and private initiatives, collectively known — or derided, in their apparent futility — as the peace process. The Oslo Accords of the 1990s were a major breakthrough in bringing hardened Palestinian and Israeli commanders to the table and establishing basic principles of coexistence. In 2000, Ehud Barak, Israel’s prime minister at the time, put a significant offer on the table to the Palestinian leader Yasir Arafat for a two-state solution, which he rejected as insufficient and failed to meet with any serious counteroffer. Several years later, Mr. Barak’s successor Ehud Olmert and the Palestinian Authority leader, Mahmoud Abbas, met 36 times over nearly two years to hammer out a detailed plan that involved swapping some land, sharing Jerusalem, creating a free passage between the West Bank and Gaza and cooperating on business and resources.

That initiative foundered, as they all did, through violence, politics and circumstance: the assassination of Prime Minister Yitzhak Rabin, a clash with Hamas in Gaza, Mr. Olmert’s resignation and Benjamin Netanyahu’s victory, the ouster of the Palestinian Authority from Gaza. Extremists — be it Palestinian Islamists determined to destroy the Jewish state or Israeli settlers determined to push Palestinians out of the West Bank — knew they could undermine any effort toward peace through provocation or terrorism.

The victims, as they always are in this cruel war, are the children, women and men who just want to live in peace. The victors, as always, are the zealots who pursue their absolutist goals by murder, provocation and deception, demonizing the other side. It is likely that Hamas launched its attack on Oct. 7 in part to undermine the movement toward an Israeli deal for normalizing relations with Saudi Arabia.

This board has called many times for an independent Palestinian state alongside Israel, and we have called for mercy and reason in the current conflict. We have based this on the presumption, the hope, that there are still enough people who see the futility and horror of the endless cycle of violence on both sides and that the United States, which has invested so much treasure and diplomatic effort into resolving the crisis and has given Israel unstinting support through the decades, still has some clout. We have to believe this, because the alternative is anarchy and blood.



Nov. 22

The Los Angeles Times on the Supreme Court’s new ethics code

The U.S. Supreme Court justices have adopted a code of conduct designed to assure Americans that they will behave ethically. The document released by the court last week, however, falls short of addressing all the concerns that have been raised about the justices’ outside activities and possible conflicts of interest. It also perpetuates a system in which individual justices have the final say about whether they will participate in a case.

Unlike lower-court federal judges, justices aren’t bound by the Code of Conduct for United States Judges. In 2019, Justice Elena Kagan said that Chief Justice John G. Roberts Jr. was studying a possible code for the court, but justices were apparently unable to reach a consensus.

Now, after embarrassing news reports about questionable conduct by some justices, it finally has brought forth a document designed to dispel “the misunderstanding that the justices of this court, unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules.”

Samuel A. Alito Jr., who were the subject of news reports describing their undisclosed luxury vacations paid for by wealthy individuals. Both justices have said they didn’t believe they were obliged to disclose the information. Earlier this year the Judicial Conference of the United States clarified its guidance to say that judges must disclose travel by private jet.

That the court finally adopted a code of its own shows that the justices can be influenced by public and congressional criticism. That doesn’t mean the code goes far enough. Amanda Frost, a judicial ethics expert at the University of Virginia Law School, told The Times that it was “a small but significant step in the right direction.” But Frost also noted that there was “no acknowledgment of past transgressions, no enforcement mechanism and no guarantee of increased transparency or accountability.”

The lack of enforcement is particularly a problem when it comes to requiring justices to refrain from participating in cases because their “impartiality might reasonably be questioned” — so-called recusal.

Recusal is admittedly a more complicated matter for Supreme Court justices than for lower-court judges, because a justice who withdraws from a case cannot be replaced the way a lower-court judge can be. According to the new code, the “rule of necessity may override the rule of disqualification.” A commentary attached to the code explains that the loss of one justice is “effectively the same as casting a vote against the petitioner.”

Even so, there are some circumstances in which recusal by a justice is necessary to maintain public confidence in the court. For example, it seems obvious that Thomas, whose wife, Virginia, was involved in efforts to overturn the 2020 presidential election, should not sit on any case arising from the prosecutions associated with attempts to overturn that election or the riot at the U.S. Capitol on Jan. 6, 2021.

Nor should an individual justice be the sole judge of whether he or she should recuse. In a recent op-ed in The Times, Erwin Chemerinsky, the dean of the UC Berkeley School of Law, cited two proposals for changes in the recusal process: the appointment by the chief justice of retired appeals court judges to decide recusal questions and, alternatively, a procedure in which a justice’s eight colleagues would decide whether recusal was necessary.

It’s important that the court toughen its ethics policies because it is unlikely that proposals in Congress to increase transparency and accountability at the court will win the necessary bipartisan support any time soon.

In July, the Senate Judiciary Committee approved the Supreme Court Ethics, Recusal and Transparency Act, which would strengthen ethics enforcement and provide a mechanism for reviewing a petition that a justice be disqualified from a case. But Republican leaders decry ethics reform as an attempt by Democrats to punish a conservative court whose decisions they don’t like.

That means maintaining the court’s integrity will be up to the justices. They should regard the promulgation of its new code as just a small step toward repairing the institution’s reputation with the public.



Nov. 23

China Daily on the joint patrols of the South China Sea by the Philippines and the U.S.

Although Manila claims the three-day joint maritime and air patrols of the Philippine and US forces in the South China Sea aim to “enhance regional security” and “foster a seamless partnership with the United States in safeguarding our shared interests”, the contradiction between the two objectives should be evident to all.

The joint patrols that finished on Thursday were part of a series of military cooperation moves by the Philippines and the United States since Ferdinand Marcos Jr took office as Philippine president in June last year. While he pretends his administration is engaged in balanced diplomacy, in actuality it adopts a pro-US stance, with the aim of the Philippines being an ass in a lion’s skin so as to gain the upper hand in its long-festering maritime disputes with China.

That’s a miscalculation, as it has never been part of Washington’s agenda to help settle the maritime disputes between China and the Philippines, or any other claimant countries in the region. Washington simply wants to protract and exploit the disputes so that it can sow the seeds of discord between China and its neighbors and also portray China as a bully.

For this purpose, the US provides a limited military input to create the illusion for countries such as the Philippines that they can always count on the US to deter what Washington hypes as China’s “aggression” and “bullying”.

As long as Beijing exercises restraint, as it is wont to do, knowing that a conflict will be detrimental to its own development prospects and those of the region as a whole, these countries feel secure and emboldened enough under what they imagine to be the protective wings of the US to try and encroach on China’s islands, reefs and waters.

Their plundering is just wishful thinking based on not only a misinterpretation of Washington’s strategic goals but also their underestimating of Beijing’s resolve to safeguard the country’s sovereignty and territorial integrity. The military drill of the People’s Liberation Army in waters not far from the joint patrol routes in the South China Sea should be a clear wake-up call to Manila, which has been lulled into drowsy dreams by Washington’s assumed solicitude.

Manila should be wary of the lullabies luring it into somnolence. With its agreement to open four new bases to the US military, at least two of which overlook waters to the south of China’s Taiwan island, the Pentagon is making the Philippines a key part of its regional theater setting.

Manila ought to know better than anyone that an important reason why the disputes in the South China Sea and the East China Sea, and the Taiwan question, have not flared up into conflict over the years is because of the composure Beijing has demonstrated. The Ukraine crisis and Gaza conflict should be ready reminders to Manila of the dire consequences of letting the Philippines be used as a US proxy.

There is a broad consensus in the region that inclusivity and cooperation should be the guiding lights for resolving the disputes. If Manila continues to speculate on the US enabling it to brush aside that consensus it will eventually come to realize that it has been racking up an ever-larger losing bet.


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Editorial Roundup: United States