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Why Due Process Matters, Part 2: Trump Administration Incompetence

 The Due Process Clause of the Fifth Amendment to the U.S. Constitution is certainly in the news with the Trump Administration claiming it can send certain aliens to a notorious El Salvadoran prison without due process.  Even  the conservative Supreme Court (without dissent) smacked down this outrageous argument.  To their everlasting shame, however, several conservative politicos have doubled down with the suggestion that "illegal immigrants" deserve no due process.  Probably, the most prominent example was J.D. Vance's tweet claiming that concerns about due process are nothing more than a subterfuge for a desire to prevent deportations altogether: "When the media and the far left obsess over an MS-13 gang member and demand that he be returned to the United States for a *third* deportation hearing, what they're really saying is they want the vast majority of illegal aliens to stay here permanently."  (Apparently, either Yale Law School needs to up its game in teaching constitutional law or Vance wasn't paying attention.)

As I noted in a previous post, however, even if you are a huge fan of rapid mass deportation, there are good reasons to still insist on robust due process.  Why?  Government officials make mistakes.  Huge mistakes.  Every day.  And in its zeal to reach high deportation numbers, it is clear that Trump officials are making mistakes--lots of them.  And U.S. citizens and immigrants with lawful status to be here are caught up in the resulting dragnet.

This week, the Department of Homeland Security sent an email  informing migrants that their temporary protective status was terminated, and that the recipient of the letter had seven days to leave the country.  The email said: "If you do not depart the United States immediately you will be subject to potential law enforcement actions that will result in your removal from the United States.  .  .  Do not attempt to remain in the United States — the federal government will find you,” it added. “Please depart the United States immediately.”

The problem is that several U.S. citizens received this email.  These include a retired Wisconsin university administrator,  a Massachusetts immigration attorney, a physician in Connecticut, and an accredited immigration representative in San Diego.  These are just the examples of press coverage I could find in doing a quick Google Search--there are likely many more.

In addition, as even the Department of Homeland Security now admits, the email also went to many immigrants  in error.  The email went to Ukrainians in the United States under the Uniting for Ukraine program – "only for the government to acknowledge those letters were all sent by mistake."  The email also apparently went to all immigrants who came to the U.S. using the CBP One App despite the fact that many had been successful in getting a different immigration status--or were in the process of applying for a different status.  And in Florida, "some green card holders – Cubans eligible for an expedited path to citizenship under the Cuban Adjustment Act – got the letters."

And ICE is apparently also erroneously placing immigration holds on U.S. citizens--one Georgia-born man (with an Hispanic name) was detained on such a hold in a Florida prison even after his mother showed a Judge his birth certificate.   And the stories of U.S. Citizens (Puerto Ricans and--oddly--Native Americans seem to be especially vulnerable) being arrested and detained by ICE has gotten so numerous that Congress has started asking questions.

In other words, this is a hot mess, and suggests that the Trump Administration is using a deeply flawed data base in determining who they can remove. Imagine if you received such an email or were detained by ICE.  Wouldn't you be concerned?  Wouldn't you want to make sure that you had a right to be heard before being deported (or worse, being sent to an El Salvadoran gulag).  As the retired university administrator who received the email noted, the fear of bad things happening are real:

He said he was worried about the possibility of immigration officials showing up at his home, arresting him and ultimately deporting him. As a retiree, he said he was also worried about a reference in the letter to losing benefits because he spent years paying into Social Security and Medicare.

“I was not naive enough to believe that the government never makes a mistake,” he said. “But my fear was that it could compound. And if it compounded, then what were the consequences for me?”

There are lots of reasons why due process is important, some of which I explained in my previous post.  One important reason to support due process is to guard against boneheaded governmental mistakes. If only citizens get due process, none of us are protected from being mistakenly listed as non-citizens. Unless you think government officials are infallible--and no conservative I know believes that--all of us benefit from  due process.  And due process can only protect us if there are no categorical exclusions. 

What the Trump Administration's War on Harvard (and other Universities) Means for Average Americans

 There are lots of reasons to be very concerned by the Trump Administration's war on Harvard and other elite universities.  If nothing else, it is disturbing the the Trump Administrations wants to use federal power to force governance changes and curriculum changes on the universities.  Yes, antisemitism is a problem, but Harvard already took significant steps to address this issue and the requested changes have nothing to do with antisemitism.

But for average Americans, the huge cuts in federal grants to Harvard, Columbia, Stanford,. and other universities will have a real and tangible impact on their lives and health.  Almost none of the federal grant cuts at Harvard affect Harvard's humanities and social science programs.  Indeed, almost none of the cuts even affect Harvard College itself.  Instead, the bulk of the cuts are to the Harvard Medical School and its affiliated hospitals.

As the Harvard Crimson reported:

Five independent Boston hospitals affiliated with Harvard Medical School — Massachusetts General Hospital, Brigham and Women’s Hospital, Boston Children’s Hospital, Dana-Farber Cancer Institute, and Beth Israel Deaconess Medical Center — collectively received more than $1.56 billion in National Institutes of Health funding in fiscal year 2024.
. . .

While the alleged violations are largely related to Harvard College and the University’s Cambridge campus, the consequences could fall mostly on the hospitals.

The Crimson analyzed the proposed Trump administration funding cuts and estimated that the five hospitals’ multi-year commitment from the NIH is over $6.2 billion and the University’s multi-year federal research funding exceeds $2.7 billion.

The combined figure nears the $9 billion cited by federal officials, but it remains unclear if the funding review is limited to these select grants.

 As we get more details on what specific federal grants have been cut, it is becoming increasingly clear that they are for medical research on illnesses that tragically affect all Americans.  For example, research on ALS has been suspended.  In addition, very promising research on tuberculosis (including animal trials a vaccine) and research on mitigating the side effects of radiation therapy have been cut.  

And Harvard is not a slouch when it comes to doing important medical research.  As Nicholas Kristof notes   "The university has 162 Nobel Prize winners, and scientists there are working on cancer immunotherapy, brain tumors, organ transplants, diabetes and more. It was a Harvard researcher who discovered the molecule that is the basis for the GLP-1 weight-loss medications that have revolutionized obesity care."

And these are just a few examples.  Harvard has a website listing all of the research at risk, and the list includes research on cancer, heart disease, neurodegenerative diseases, obesity and diabetes, infectious diseases and organs and transplantation.  

So while many MAGA types are applauding this latest Trump initiative to "own the libs", they ignore they real long term victims of  the attacks on universities--it is not merely university professors and students, but also includes all of facing diseases such as caner, tuberculosis and ALS.

My other relevant posts.

Our Vichy Moment, Part 2: Harvard Will Not Collaborate

Our Vichy Moment: Time to Stop Collaborating

Trump Is Apparently Pro-Parkinson's and Pro-Infectious Disease

How the Trump Administration is Endangering Medical Research and Innovation

Our Vichy Moment, Part 2: Harvard Will Not Collaborate

 In my blog post yesterday, I explained why institutions need to stop collaborating in response to the Trump Administration's illegal orders.  As I summarized,  "Fighting is hard.  Fighting is risky.  But the lesson of history is that not fighting authoritarians, in the end, never ends well."

I was therefore pleased to see today that my law school alma mater, Harvard, has decided to fight. I urge you to read the letter to the community from Harvard President Alan Garber.  Here are highlights: 

Late Friday night, the administration issued an updated and expanded list of demands, warning that Harvard must comply if we intend to “maintain [our] financial relationship with the federal government.” It makes clear that the intention is not to work with us to address antisemitism in a cooperative and constructive manner. Although some of the demands outlined by the government are aimed at combating antisemitism, the majority represent direct governmental regulation of the “intellectual conditions” at Harvard.

I encourage you to read the letter to gain a fuller understanding of the unprecedented demands being made by the federal government to control the Harvard community. They include requirements to “audit” the viewpoints of our student body, faculty, staff, and to “reduc[e] the power” of certain students, faculty, and administrators targeted because of their ideological views. We have informed the administration through our legal counsel that we will not accept their proposed agreement. The University will not surrender its independence or relinquish its constitutional rights.

The administration’s prescription goes beyond the power of the federal government. It violates Harvard’s First Amendment rights and exceeds the statutory limits of the government’s authority under Title VI. And it threatens our values as a private institution devoted to the pursuit, production, and dissemination of knowledge. No government—regardless of which party is in power—should dictate what private universities can teach, whom they can admit and hire, and which areas of study and inquiry they can pursue.

Our motto—Veritas, or truth—guides us as we navigate the challenging path ahead. Seeking truth is a journey without end. It requires us to be open to new information and different perspectives, to subject our beliefs to ongoing scrutiny, and to be ready to change our minds. It compels us to take up the difficult work of acknowledging our flaws so that we might realize the full promise of the University, especially when that promise is threatened.

I also urge you to read the remarkable demand letter from the Trump Administration. It is a clear violation of the First Amendment.

Harvard is to be applauded.  They are putting hundreds of millions of research grant dollars at risk.  But as President Garber concluded in his letter, "All of us share a stake in safeguarding that freedom. We proceed now, as always, with the conviction that the fearless and unfettered pursuit of truth liberates humanity—and with faith in the enduring promise that America’s colleges and universities hold for our country and our world."

Our Vichy Moment: Time to Stop Collaborating

 In my experience practicing law for nearly 40 years, I have learned that American institutions--corporations, individuals and non-profit alike--are very pragmatic when it comes to resolving disputes.  Clients may initially claim that they must stand on principle, but in the end will most often swallow principle to put a problem behind them. This is especially the case when the potential downside to an investigation or lawsuit is potentially catastrophic.

I am not surprised, therefore, to see a large number of universities and law firms rush to make a deal with the Trump Administration when faced with the potential of heavy financial penalties.  Law firms have been subject the Executive Orders with potentially devastating sanctions--prohibiting federal agencies from working with the sanctioned law firms, ceasing government contracts of clients that hire them, and suspending the security clearances that many lawyers need to do our jobs (certainly true of my practice).   While a hardly few have chosen to fight--most notably Perkins Coie, Jenner & Block, and Wilmer Hale--a larger number of the largest U.S. law firms have capitulated.  

Universities have been hit with the loss of huge cuts in federal grants (largely to science departments). In response, Universities have caved as well.  Columbia has agreed to Trump's demands (including placing an academic department under supervision) , and it looks like Harvard is on the road to caving as well.  It has changed the leadership of an academic department as well.

While I understand the desire to make a deal.  This needs to stop.  American institutions need to fight.  Michael Roth, the President of Wesleyan University calls this "a Vichy moment in American history . . .You can have preserved your school but you live in a sea of authoritarianism."   As Robert Kuttner elaborates:

In 1940, the French hoped to preserve part of “free France” by making a separate peace with the Nazis and setting up a puppet regime under Marshal Philippe Pétain based in Vichy, while the Germans occupied and ruled northern France. The arrangement lasted only until the Gestapo decided otherwise in 1942 and “free France” fell increasingly under direct Nazi rule.

Preserving a Columbia that is partly free is the same sort of fantasy. The rest of Columbia is free only until Trump decides to escalate his demands and seize more territory.
Wesleyan has the same kinds of federal funding streams at risk as larger universities: research grants from NIH and NSF, as well as Pell grants to students and the federal student loan program. I asked Roth if speaking out puts all of these at risk.

 “Of course, I think about that,” Roth said. “And then I think that’s the classic collaborationist dilemma, right? You know, you collaborate with authoritarians who you know are in the wrong, in order to keep them from doing worse stuff. And I think when you do that, when you engage in the collaboration, you actually encourage them to do even worse stuff.”

I agree with Roth.  The Trump Executive Orders against law firms and the actions against the Universities are unquestionably illegal,  unconstitutional, and dangerous. Every law firm to fight the Executive Orders has won in court--in cases decided by Judges appointed by both Republican Presidents and Democratic Presidents.     Similarly, there is no statutory authority for the actions against the Universities.  While Title VI of the Civil Rights Act allows for sanctions, these can only be imposed after a formal investigation and the remedies must be limited to the programs found to be in violation. Unless the violation involves the Chemistry Department, you can't take away its grants as a sanction. Moreover, it is clear that the Universities are being targeted because of speech--which makes them constitutionally suspect as well.

So what's the harm in collaboration if it protects your institution?  First, it is wrong-headed to think that this one deal will appease the tyrant.  It won't.  To the contrary, the evidence is that it will only embolden Trump to ask for more. Columbia has already learned this lesson.  After agreeing to Trump's terms, it has now learned that Trump is demanding that it be subject to a formal consent degree.  The law firms may soon learn this lesson as well.  They thought they were merely agreeing to do pro bono work for crime victims and other favored causes of the right.  Just last week, however, Trump suggested that the obligation might also include helping both the government with trade negotiations and the coal industry.

The lesson here is simple--caving only leads to more demands. As Michael Roth explains "I think that’s the classic collaborationist dilemma, right? You know, you collaborate with authoritarians who you know are in the wrong, in order to keep them from doing worse stuff. And I think when you do that, when you engage in the collaboration, you actually encourage them to do even worse stuff."

More fundamentally, collaboration normalizes the authoritarian actions.  Simply put, when Columbia and Paul Weiss caved, they made Trump even more eager to go after other universities and law firms.

Fighting is hard.  Fighting is risky.  But the lesson of history is that not fighting authoritarians, in the end, never ends well.

 

We Finally Found the One Thing Trump Can't Bully: The Bond Market

 

For anyone with a 401(k) account, the last week has been a roller coaster.  Stocks plummeted after Trump announced the largest tariff increase in American history, only to have the market see huge gains after the tariffs were paused.  Apparently, the fact that this was just a pause and still applies to our largest trading partner--and thus the Trump tariff chaos will continue--has resulted in yet another sell-off today.

But the stock market is not where you should focus.  By all accounts, it was not the stock market that caused Trump to pull back from his tariffs--it was the bond market.

James Carville famously said "I used to think that if there was reincarnation, I wanted to come back as the president or the pope or as a 400 baseball hitter. But now I would like to come back as the bond market. You can intimidate everybody."  

You would expect that when stocks are falling investors would flee to the safer Treasury Bond market.  That is what usually happens when stocks are falling and there are fears of a recession.  But that is not what happened.  Instead, after an initial drop,  the 10 year Treasury  Bond rate
jumped a full quarter point.  As the Guardian reported, "'This is a fire sale of Treasuries,” said Calvin Yeoh, a portfolio manager at the hedge fund Blue Edge Advisors. “I haven’t seen moves or volatility of this size since the chaos of the pandemic in 2020.'"

This means that investors ere less likely to view Treasury bonds as a safe place to put their money.  This should not have been a surprise--fully a third of all Treasury holdings are by foreign institutions--and even a small sale of these bonds can cause a large increase in interest rates.  Gordon Ip (one of my favorite financial columnists) explained this today in the Wall Street Journal:

As of last June, foreigners held $7 trillion of Treasury bonds (half by official investors such as central banks). That is about a third of the total held by the public. The federal budget deficit is running at around $2 trillion a year, or 7% of gross domestic product, and Senate Republicans just passed a budget resolution that would continue outsize deficits for the foreseeable future.

So the U.S. needs foreigners to keep rolling over the bonds they hold, and buying new ones. Even a small pullback would cause yields to jump. Jay Barry, head of global rates strategy at JPMorgan Chase, estimates that yields rise a third of percentage point for each $300 billion decline in foreign official holdings of Treasurys.

So why was this so scary to Trump that he pulled back--at least for 90 days--from the huge tariff increase? The concern is that the sell-off of the Treasurys could become a rout, resulting in huge increases in interest rates--which could have a devastating effect on the U.S. economy.  Already high mortgage rates skyrocket.  Of greater concern is that a sell-off could threaten the U.S. financial system.  Banks use bonds as part of their capital reserves.  As the bond prices drop, their capital reserves do as well.  As we saw in 2008, a large drop in bank capital can cause the financial markets to "freeze"--they stop making loans.

The long and the short of all of this is that Trump finally ran into an institution he cannot bully: the bond market.   

My other posts of the Trump Tariffs:

Are the Trump Tariffs even Legal?

A Few Observations About the Trump Tariffs

 

 

The Gulf of Mexico Returns: District Court Orders that the White House Restore AP Access to the Oval Office

 The Associated Press made an editorial decision to continue to call the Gulf of Mexico by the name it has historically had (and that is used by all Nations save One).  In response the Trump White House Press operation barred the AP from Oval Office events and East Room events to which the press is otherwise invited.  

Seems like a clear cut violation of the First Amendment to me.  The law is clear that while the White House does not need to give the press access to the Oval Office or other places in the White House, but if it does give access it cannot discriminate on the basis of speech.  It has a great deal of power to limit access to White House spaces, but there are limits.  One critical limit is that access to the White House cannot be be limited based on the expression of viewpoints.

Today the U.S. District Court for the District of Columbia agreed.  It ordered the White House to "immediately rescind the denial of the AP’s access to the Oval Office, Air Force One, and other limited spaces based on the AP’s viewpoint when such spaces are made open to other members of the White House press pool" and l immediately rescind their viewpoint-based denial of the AP’s access to events open to all credentialed White House journalists."

The court's opinion is lengthy, and well reasoned.  Here is its summary:

The Government repeatedly characterizes the AP’s request as a demand for “extra special access.” Gov’t Opp’n Br. at 12; see also id. at 10–11, 17. But that is not what the AP is asking for, and it is not what the Court orders. All the AP wants, and all it gets, is a level playing field. See Mot. Preliminary Inj. at 45 (“[T]he AP’s journalists seek access to a forum—opened by the White House—on the same terms as other journalists.” (cleaned up)); see also Hr’g Tr. at 186:1–187:25. In framing things otherwise, the Government fails to fully engage with forum analysis and retaliation caselaw. Rather than grappling with the implication of these doctrines, the Government tries to sidestep them. Defendants may pursue their favored litigation tactics, but the Court must address the merits of the relief requested.

The AP seeks restored eligibility for admission to the press pool and limited-access press events, untainted by an impermissible viewpoint-based exclusion. That is all the Court orders today: For the Government to put the AP on an equal playing field as similarly situated outlets, despite the AP’s use of disfavored terminology. The Court does not order the Government to grant the AP permanent access to the Oval Office, the East Room, or any other media event. It does not bestow special treatment upon the AP. Indeed, the AP is not necessarily entitled to the “first in line every time” permanent press pool access it enjoyed under the WHCA. But it cannot be treated worse than its peer wire services either. The Court merely declares that the AP’s exclusion has been contrary to the First Amendment, and it enjoins the Government from continuing down that unlawful path.

You can read the order and decision here. A victory for the First Amendment.