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Former FBI Bosses Under Fire, Pizza Delivery & Deportation, Sanders Snubs Son

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Jim Geraghty of National Review and Greg Corombos of Radio America react to reports that former FBI Director James Comey is described as “insubordinate” in the forthcoming inspector general’s report and former deputy director Andrew McCabe is asking for immunity before testifying to Congress about the Hillary Clinton email investigation.  They also push back against the outrage surrounding the arrest of an illegal immigrant delivering pizzas to a military base, pointing out the man told a judge he would leave the country eight years ago and never did.  And they’re puzzled by Sen. Bernie Sanders refusing to endorse his own son’s congressional bid when he’s been very active backing other candidates around the country.

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Uproar over Census Citizenship Question

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Democrats in multiple states are planning to sue the Trump administration to stop the 2020 U.S. census from asking whether people living in the U.S. are citizens, a move that may find initial success in the courts but may also be based on false assumptions.

The citizenship question appeared on every census form from 1820 through 1950.  From 1960 through 2000, it appeared on the long form sent to about one-sixth of U.S. residences.  2010 is the only census in the past 200 years not to include the question to anyone.

Nonetheless, left-leaning states like California and New York are headed to court to prevent the question from appearing on the census.

“Having an accurate Census count should be of the utmost importance for every Californian,” California Attorney General Xavier Becerra said in a statement. “The Census numbers provide the backbone for planning how our communities can grow and thrive in the coming decade. California simply has too much to lose for us to allow the Trump administration to botch this important decennial obligation.”

“This move directly targets states like New York that have large, thriving immigrant populations — threatening billions of dollars in federal funding for New York as well as fair representation in Congress and the electoral college,” said New York Attorney General Eric Schneiderman.

The concern from Becerra, Schneiderman and others is that people living in the U.S. who are either not citizens or not in the country legally will be far more reluctant to fill out the census, thus skewing the data received and depriving certain states the congressional representation they ought to have and the government spending it needs.

And while the U.S. census is under the control of the executive branch through the Commerce Department, don’t be surprised if the courts back the challengers.

“We’ll get a court to enjoin this.  There’s no question.  The reason for that is that if the Trump administration were to say the sky is blue, you could find a federal court at this point to enjoin that and say it’s not correct,” said Steven Camarota, director of research at the Center for Immigration Studies.

“There’s just so many judges out there who have a deep suspicion of every motive and every action of the administration, that’s they’ll find a reason,” said Camarota, who says the likely verdict of the Supreme Court on this is less clear.

But while plenty of attention has been paid to the blowback from Democrats, why is the Commerce Department adding this question back into the census?

“It came at the request of the Justice Department, which said that we’d really like to have this question because it would be helpful in enforcing voting rights law,” said Camarota.

At issue is greater scrutiny of racial and ethnic gerrymandering and whether the drawing of legislative districts is putting certain people under a greater burden to get to the polls.

“You’re allowed to gerrymander for political reasons but you’re not allowed to explicitly try to dilute political power among different racial minorities.  Or another example is the placement of a polling place.  You can have a situation where minorities are all in one part of the area but the polling place is very far away and very inconvenient,” said Camarota.

“The same kind of thing could apply to naturalized citizens.  Does the placement of polling places or does the gerrymandering tend to dilute or make difficult the voting of naturalized citizens.  That’s why you would ask the question they’re planning on asking,” added Camarota.

While the reaction to the citizenship question is falling largely along party lines, Camarota says on the surface it is reasonable to wonder it will lead to fewer responses and less accurate data..

“The question is does the benefit you get by asking this question offset the risk that you might reduce the quality of Census Bureau data,” said Camarota.  “I think it’s not an unreasonable concern.  I think it’s an open question.”

That being said, Camarota says the best evidence suggests there probably would not be much of a drop off, if any, if the question is added to the census based on what we see with other surveys.

“Every year we do what’s called the American Community Survey.  It shoots for about one and a half to two percent of the population and they ask all these detailed questions, several related to citizenship.  The second survey we have is the Current Population Survey.  It’s done every month.  It’s where we get the unemployment numbers.  It has also been asking about citizenship for many years now,” said Camarota.

He says Trump’s campaign and presidency seem to have little or no impact on the response rate.

“The argument is that there’s a kind of Trump effect, that in the new context of increased immigration enforcement, now we’re really going to see people respond (at different rates).  You don’t really see it.

“With the American Community Survey, Trump ran for office and won office in 2016, but the share of people who refused to take the survey didn’t change between ’15 and ’16, which is what you’d expect if people were reluctant to answer these questions,” said Camarota.

He says the rate of response is trending down but that development began long before Trump’s political rise.  In addition, the same pattern can be seen on the monthly surveys.

“You’d think they’d be really reluctant to answer the question and you can do an analysis to see if in fact people are not answering that question, leaving it blank or what have you.  There’s been no rise.

“Even if you try to put on a graph the months in which Trump did well – he announced his candidacy, or won the nomination, or won the presidency – and then look at several months after, there’s just no change in the continuity of the data,” said Camarota.

According to Camarota, the evidence just isn’t there to suggest returning the question to the census will skew the results.

“That would tend to undermine the idea that putting this question on is going to make much difference one way or the other.  I think it is harder and harder to gather data.  I think that has to do with the decline in trust for government.  It has to do with the decline in civic mindedness.  People don’t see it so much as their civic responsibility anymore.

“I think those things are true, but I don’t think it has much to do with the citizenship question,” said Camarota.

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Awards: Underreported Stories, Overreported Stories, Best Stories of 2017

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Jim Geraghty of National Review and Greg Corombos of Radio America focus squarely on the media in this episode of the Three Martini Lunch awards.  They begin by discussing two massive stories that media either ignore or are severely downplaying – one overseas and one here in the U.S.  Then they switch gears to reveal which stories received far too much coverage in 2017.  Finally, they choose what they see as the best stories of the past year.

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Trump’s Solid Court Picks, NFL to Stand? Crazy Left Targets Melania Over Books

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Jim Geraghty of National Review and Greg Corombos of Radio America applaud President Trump’s nomination of Don Willett and James Ho for spots on the Fifth U.S. Circuit Court of Appeals.  They also are cautiously optimistic that this NFL weekend might actually focus on football as three teams announce they will be standing for the national anthem.  And they throw up their hands as a anti-Trump elementary school librarian publicly rejects the donation of Dr. Seuss books from First Lady Melania Trump, while also slamming Education Secretary Betsy DeVos and falsely accusing Dr. Seuss of racism.

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Is Trump Second-Guessing Decision to Ditch Climate Deal?

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Key White House officials are denying any change in President Trump’s decision to withdraw from the Paris Climate Accords, but supporters of Trump’s position are increasingly concerned by the growing number of treaty supporters in the president’s inner circle and by he unwillingness to kill the treaty once and for all.

Over the weekend, the Wall Street Journal quoted European Union’s Commissioner for Climate Action and Energy Miguel Arias Canete as suggesting Trump may be mulling a change in policy.

“The U.S. has stated that they will not renegotiate the Paris accord, but they will try to review the terms on which they could be engaged under this agreement,” said Canete, according to the Wall Street Journal.

The Trump administration immediately sought to pour cold water on the report.

“Our position on the Paris agreement has not changed. @POTUS has been clear, US withdrawing unless we get pro-America terms,” tweeted White House Press Secretary Sarah Huckabee Sanders.

On Fox News Sunday, National Security Adviser H.R. McMaster called the speculation a “false report.”

“The president decided to pull out of the Paris accord because it was a bad deal for the American people and a bad deal for the environment,” said McMaster.

Trump’s top economic adviser also joined the chorus.

“Per the White House statement on Saturday and consistent with the president’s announcement in June, we are withdrawing from the Paris Agreement unless we can re-engage on terms more favorable to the United States,” said Cohn.

But that statement actually raises more questions than it answers for those concerned about Trump sticking with his decision to withdraw from the treaty.

“The position itself is inherently ambiguous.  What President Trump announced June 1 in the Rose Garden was that he was going to withdraw in November 2019, taking effect the year after that, unless he found better terms.  They have yet to define what those better terms are,” said Christopher C. Horner, a senior fellow at the Competitive Enterprise Institute who served on Trump’s transition landing team at the Environmental Protection Agency.

Horner says the debate within the White House before Trump’s announcement in June was a battle royale and he says it still hasn’t stopped.

“The struggle that led up to the June 1 announcement and was particularly acute in May among administration staff, not just Obama administration holdovers and not just career resistance types at the State Department, but some Trump appointees at the White House in the National Security Council and elsewhere, who are fighting to reverse this,” said Horner.

Secretary of State Rex Tillerson has consistently advocated for staying in the treaty.  On CBS’s “Face the Nation” Sunday, Tillerson said remaining in the deal is still possible.

“The president said he is open to finding those conditions where we can remain engaged with others on what we all agree is still a challenging issue,” Tillerson said.

Horner says Tillerson’s position is not surprising because the State Department bureaucrats are licking their chops to implement this agreement.

“This is the biggest boon for the State Department, possibly ever.  You’re talking about the creation of an enormous climate diplomatic corps,” said Horner.  “They think, oddly enough, when you rob Peter to pay Paul, Paul thinks it’s a great idea.”

“The politicos they’ve brought on board are not the ones you’d want if you wanted to keep the president’s promise,” said Horner.

Horner says the issue is simple.  On Trump’s present course, the debate could rage for another two years.

“The struggle continues.  Until President Trump sends that letter on November 5, 2019, this fight goes on,” said Horner.

Trump’s decision to exit the treaty via letter in 2019 is what aggravates Horner most, pushing fiercely for Trump to declare the agreement a treaty and force the Senate to vote on and likely kill the agreement.

He says by taking unilateral executive action, Trump’s decision is only good for the remainder of his presidency.

“If he wants a durable withdrawal, meaning something that President Warren cannot turn the key on on January 20, 2021, you’re going to have to have the Senate vote,” said Horner.

Horner sees multiple options by which Trump can bring an end to the issue, whether by submitting the treaty to the Senate now or renegotiating the plan and then submitting the amended plan for a vote that would still likely fail, since ratification requires two-thirds of senators to approve.

But Horner says one reason Trump may not be taking that action is because the Senate doesn’t want to touch it.

“So far the Senate has not stirred.  In fact, to my understanding, the Senate told President Trump they don’t want him to involve them,” said Horner.

The treaty is non-binding, leaving many to wonder why Horner and others are wringing their hands over a possible Trump reversal or his allowing his successor to rejoin the agreement.  Horner points out the deal tightens the screws on emissions every five years, so the longer we’re attached to the deal the more pressure we’ll be under to comply.

Already, he says the Germans are desperately trying to keep the U.S. in the fold.

“We have obtained records from the State Department, a cable, saying the Germans are worried that if the rest of the world doesn’t do this to themselves too they will lose billions,” said Horner.

“In other words, ‘It’s not fair that we did this to ourselves.  You’re mean if you don’t do it to yourself too,'” said Horner.

Horner also explained that the real strategy is for the climate change movement to enforce the plan – both at home and abroad – is to use the courts to their advantage.

“The United Nations, just before the president made his announcement, issued a report about how activists could use the Paris treaty to really put the screws to signatories who are claiming it’s not binding,” said Horner.

“The pointed to a decision out of the Hague that’s fairly recent, in which the court said, ‘I know you’ve got your agreement and you’ve got your number here and you’ve also got decades of saying I’m so awful.  I’m so responsible, I’m so obligated,'” said Horner.

Horner says the court at the Hague assigned an even more aggressive plan for reducing carbon emissions and liberal activists in the U.S. are already trying to get federal judges in the Ninth Circuit to enforce the treaty and make the terms even more burdensome.

“So you can say non-binding, but the people behind this know what they’re up to and they know who occupies our judicial benches here,” said Horner.

Not only does Horner warn that failing to get the Senate to vote on the treaty allows the next president to reverse Trump’s decision, but he says keeping the Senate out of the fray will permanently damage the separation of powers.

“This is simply a beginning point for the courts.  That’s a key reason why it’s so dangerous.  The other is, of course, that you have outsourced policy making to this body instead of to our Senate as our Constitution dictates.  You’ve gutted the treaty power, probably forever, if you just shrug at this usurpation of the Senate’s treaty role,” said Horner.

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Lower Courts Await Trump Nominations

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President Trump received wide acclaim from his supporters for the selection and confirmation of Supreme Court Justice Neil Gorsuch, but legal experts are urging Trump to make good selections soon for scores of vacancies on lower federal courts.

More than three months into his administration, Trump has sent just one nominee for a federal appeals court opening.  There are 18 others to fill.  He also has the opportunity to nominate more than 100 federal district court judges, but has yet to act.

Judicial Crisis Network Chief Counsel and Policy Director Carrie Severino says it is vital to get strong defenders of the Constitution on these courts as soon as possible.

“They’re incredibly important,” she said.  “All of these are lifetime seats on the federal courts.  Remember, the Supreme Court takes less than one percent of the cases appealed to it every year.  That means well upward of 99 percent of cases are decided at the lower courts.”

“Many of those district court cases don’t even get up to the appellate level.  They might end there.  So it’s a huge, huge impact on American law,” said Severino.

Severino says we can just look to the Obama years to see how much impact a president can have on the judiciary.

“Normally, a two-term president can turn over two-thirds of the judiciary.  Barack Obama certainly did that.  When he came into office, one out of the thirteen courts of appeal had a Democratically nominated majority of judges.  When he left, nine of thirteen did,” said Severino.

During the campaign, Trump rolled out a list of 21 possible choices for the Supreme Court vacancy.  The list included Gorsuch.  While Trump may not have a formal list for all these other vacancies, Severino fully expects the same careful vetting to pick quality judges.

“[Gorsuch] has been one of the signature accomplishments of his first hundred days in office.  I can’t imagine why the president would want to diverge from an incredibly successful strategy so far and frankly, some of the people on that list could be candidates,” said Severino, noting that District Judge Amul R. Thapar, who was on Trump’s list, is now nominated to serve on the 6th U.S. Circuit Court of Appeals.

A big reason for Severino’s confidence in the Trump administration to get these picks right stems from what she observed in the Gorsuch process.

“Candidate Trump always said, ‘I’m going to ask the smartest people and get all the experts.’  When it came to judges, boy, he really did.  He didn’t come up with a list for the Supreme Court by himself.  He knew the right people to ask and I think they know the right people to ask for these spots as well,” said Severino.

She says what they should be looking for is simple and should be familiar to Trump by now.

“You want someone who is going to be faithful to the text of the law, faithful to the original understanding of the Constitution, putting the law before one’s political instinct on where they want the case to come out.  We want people who are going to be judges first.  I think that’s what we got with Gorsuch.  I think it’s going to be the same type of vetting process,” said Severino.

With so many politically charged cases now coming before courts, Severino says it is vital to get judges whose character can withstand the firestorm.

“You don’t know what the next issue is going to be.  We couldn’t have seen all these issues coming when the people currently on the bench were nominated.  That’s why it’s so important to have a vetting process that doesn’t just say, ‘Here’s some topics.  How do you feel about free speech?  How do you feel about immigration or this and that?'” said Severino.

“We don’t need to know what their politics or policy preferences are in these things.  You need someone who actually understands the judicial philosophy here, because that’s what’s going to help them get the next question down the road – that we haven’t even seen yet – correct,” said Severino.

But while Obama, succeeded in steering the federal judiciary to the left, Severino says Trump can have a huge impact in the opposite direction.

“A two-term president gets to replace two-thirds of the judges.  Currently, our president is Donald Trump and it looks like he’s going to make some great picks for those slots,” she said.

Severino says Trump’s influence on the bench may actually be bigger.

“He may have more front-loaded opportunities than most presidents do, because this does seem like a very large number of vacancies.  There are a lot more, I think upwards of half the federal appellate judges who are either retired or eligible to take senior status.  So there could be many more coming,” said Severino.

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Transgender Battle Shifts to States, Local Schools

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Social conservatives and proponents of federalism are cheering the Trump administration’s decision to rescind the Obama policy requiring public schools to accommodate transgender students and personnel according to their gender identity, but the fight is far from over.

The battle now shifts to the a Supreme Court case, state supreme courts and countless school districts around the country, but Liberty Counsel Chairman Mathew Staver says this week’s Justice Department ruling is critical.

“Removing this lawless directive from the Obama administration will do a lot to get the federal government off the backs of these local schools,” said Staver, who says the Obama order put girls at great risk by placing them in vulnerable situations with biological males.

He says the backlash by liberals and the media is

“There’s such a big backlash about this in the liberal media, like there’s something horrible that he did.  Frankly, he’s just following the law.  The law does not include gender identity, or sexual orientation, or gender expression – or whatever you want to say – to the non-discrimination categories,” said Staver.

Staver notes that Congress has rejected such efforts to amend Title IX to expand the application of non-discrimination policies.  He further states that the authors of Title IX and the 1964 Civil Rights Act had no intention of extending such protections.

Despite the Trump administration’s move, the Supreme Court may soon weigh in the issue.  On March 28, the eight justices will hear arguments in in a high profile case out of Virginia.  Gavin Grimm, a biological male who identifies as male, is in a legal battle with the Gloucester County Schools.

However, Staver now believes the high court may defer on the issue as a result of Trump’s actions.

“It’s possible that the court may simply punt on this and dismiss the case because of this new development.  One of the questions before the Supreme Court is should they give deference to the administrative agencies for interpreting the statute.  That administrative agency has gone back to the original intent of the statute,” said Staver.

The Trump administration’s decision also impacts Staver directly.

“This comes at a good time for a case that I’m arguing next week before the Virginia Supreme Court.  In the next few days, I’ll argue before the Virginia Supreme Court on the Fairfax County case,” said Staver.

“That’s a school board in northern Virginia that, on its own, included gender identity, sexual orientation and gender expression to its policies.  Virginia doesn’t allow that.  It has to be set at the state level,” said Staver.

“Our case deals with something that many states have and that is that these non-discrimination categories have to be set at the state level, not at the local level.  You don’t want to have different policies at the state, county, and local level all conflicting with one another,” said Staver.

He says this battle is playing out around the United States.

“Just a few days ago, the Arkansas Supreme Court came down with the same thing.  Fayettevile added gender identity to its non-discrimination policy.  The Arkansas Supreme Court said no, you can’t do that.  It has to be set at the state level.  That’s exactly what I’m arguing at the Virginia Supreme Court,” said Staver.

Even more battles on this and other key issues will play out at school board meetings around the country.  Staver urges people to get active at the local level.

“It’s very important to get involved with the local school board because you can stop these policies before they occur.  That’s the first line of defense.  You need good people at the school board, not just for these policies but for other things as well.  We need good Christians and people of moral values to be on these school boards all across the country,” said Staver.

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Three Martini Lunch 2/23/17

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Greg Corombos of Radio America and David French of National Review applaud the Trump administration for rescinding Pres. Obama’s demand that all public schools embrace transgender accommodation and leaving the issue to states or local school districts.  They also slam the Fourth U.S. Circuit Court of Appeals for ruling that any gun can be banned if it’s “useful for military service.”  And David vents about the one of the worst trades in NBA history.

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