Higher education financing is maddeningly complex—state subsidies to schools, federal grants to students, for-profit schools, “nonprofit” institutions, student loans, seemingly limitless ways to handle loan repayments—and in the grand scheme of things whether college athletes can get paid beyond “educational expenses” is a pretty minor thing. Of course, it isn’t that minor if you are an athlete, or even if you were one of millions of people who loved playing college sports video games, which met their demise in part due to legal battles over compensating college players. (I bought my first ever sports video game—NBA2K17—because it had a small mode letting me play a few tilts as my beloved Georgetown Hoyas.) All of this is why legislation likely to be enacted in California, the Fair Pay to Play Act, is making big noise, threatening to pit our largest state against arguably the country’s biggest sports power: the National Collegiate Athletic Association, or NCAA.,
Who am I rooting for in this potentially monumental clash? Much though it pains me, the NCAA.
California’s legislation, which is likely to be signed by Governor Gavin Newsom (D), is intended to allow college athletes to benefit from their name, image, or likeness being used by others for profit. You may be familiar with the O’Bannon case, a lawsuit brought by former UCLA basketball star Ed O’ Bannon against the NCAA, video game maker Electronic Arts (EA), and the Collegiate Licensing Company (CLC). O’Bannon and other athletes sought compensation for the use of their likenesses, including in E's NCAA College Basketball series. EA and CLC settled with the plaintiffs, and the NCAA lost in court at first, but prevailed against non-educational compensation on appeal. The U.S. Supreme Court refused to hear the case, letting the no-compensation rule remain.,
Legislation likely to be enacted in California, the Fair Pay to Play Act, is making big noise, threatening to pit our largest state against arguably the country’s biggest sports power: the National Collegiate Athletic Association, or NCAA.,
I’m no fan of the NCAA, with its slick marketing emphasizing the “student” in “student athlete” while raking in over $1 billion, much of which goes to non-students, including coaches and president Mark Emmert. Indeed, the NCAA is basically the whole ivory tower in microcosm: a huge, profit-seeking undertaking that wants you to believe it cares about nothing but the good of others. And if I ran a college with a sports program, I would probably allow athletes to get compensated by others whenever they offered something of value, be it their likeness or labor.
Despite this, if we want a society that maximizes freedom, including the ability to voluntarily give up some autonomy, we should root for the NCAA. The NCAA does not—legally cannot—hold a gun to anyone’s head to join. Indeed, 250 colleges are members of the National Association of Intercollegiate Athletics, while college football’s famous bowls are independent of the NCAA. And as troubling as the NCAA can be, there are reasonable arguments for schools joining organizations that hold them to common rules, including barring outside compensation. If nothing else, curbing compensation could help to maintain some competitive balance. Top athletes looking to get some of that video game dough would have yet another reason to choose the high-profile University of Texas over Rice, or LSU over Louisiana-Lafayette.
Unlike the NCAA, California is looking to set athlete compensation policy for every college in the state, and government does ultimately do that at the point of a gun. Of course, California could require its public universities—Berkeley, UCLA—to adopt rules allowing outside compensation, but the Fair Pay to Play Act goes further, requiring private institutions—the University of Southern California and Stanford, among others—to do the same. Such centralized decision-making is a problem as a matter of principle—shouldn't a private school get to make its own decisions?—but it is also a practical problem: When it is not clear what the right policy is—and it is not obvious that compensation should outweigh competitive balance, or even a spirit of amateurism—it is better to let individual athletes, schools, and organizations make independent decisions. Allowing sundry arrangements to exist will reveal both what works better overall, and better for millions of unique individuals, while reducing the risk that comes when one answer, which could be the wrong one, is imposed on everyone.
There are often college matchups in which I root for both teams to lose (were that possible) because both irk me. Emotionally, that is where I am on California v. the NCAA. But if my head picks the side to root for, it is, reluctantly, the NCAA.Neal McCluskey is director of the Cato Institute’s Center for Educational Freedom and author of the book "Feds in the Classroom: How Big Government Corrupts, Cripples, and Compromises American Education."
We recently filed an amicus brief “in support of DACA as a matter of policy but [the government] as a matter of law.” The caption caused quite a kerfuffle on social media. “Is that a thing?” they tweeted. Yes, it is a thing. And the court would be well served to receive more briefs that expressly acknowledge the distinction between law and policy. Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief’s legal theory advances.,
Some policies we dislike are, regrettably, lawful. And other policies we favor are, regrettably, unlawful. DACA falls into the latter category.,
In Department of Homeland Security v. Regents of the University of California, the Cato Institute and Professor Jeremy Rabkin took a different approach. We affirmatively support as a matter of policy normalizing the immigration status of individuals who were brought to this country as children and have no criminal records. (See Cato’s immigration work if you have any doubts.) Moreover, as a matter of first principle, people shouldn’t need government permission to work. But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act. Indeed, our deep concerns about the separation of powers and abuse of executive power motivated us to file this brief. Presidents with different priorities come and go. The principle that Congress cannot delegate its legislative power to the president, such that he alone can fix the law, remains.
Through the Deferred Action for Childhood Arrivals program, known as DACA, the Obama administration took the position that the Immigration and Nationality Act authorized the secretary of homeland security to confer lawful presence and work authorization on roughly 1.5 million aliens. The Trump administration reversed course. Attorney General Jeff Sessions concluded that this reading of federal law had “constitutional defects.” He reached this decision in light of the United States Court of Appeals for the 5th Circuit’s injunction of the similar Deferred Action for Parents of Americans and Lawful Permanent Residents program, which the Supreme Court affirmed by an equally divided vote in 2015.
Several lower courts blocked President Donald Trump from winding down DACA, however, holding that the executive branch had failed to justify the rescission. These rulings are wrong because DACA is not authorized by the INA. But even if the court declines to reach that holding, the attorney general offered reasonable constitutional objections to the policy. If the Obama administration’s reading of the INA was correct, and DACA was within the scope of federal immigration law, then provisions of the INA violate the nondelegation doctrine. The attorney general prudently decided to wind down DACA to avoid enforcing an immigration scheme with such “constitutional defects.”,
DACA, which lacks “express statutory authorization” as defined in Reno v. American-Arab Anti-Discrimination Committee, cannot be supported by any “implicit” congressional acquiescence. Two general provisions within the INA cannot bear the weight of this foundational transformation of immigration policy. Moreover, it should not matter if Congress has stood idly by while previous presidents exercised materially different deferred-action policies. The president cannot acquire new powers simply because Congress acquiesced to similar accretions in the past.
In any event, DACA is not consonant with past practice. Each previous, broad deferred-action policy was sanctioned by Congress, and one of two qualifications existed: (1) the alien already had an existing lawful presence in the U.S., or (2) the alien had the immediate prospect of lawful residence or presence in the U.S. In either case, as one of us (Josh) put it in the Georgetown Law Journal Online, “deferred action acted as a temporary bridge from one status to another, where benefits were construed as arising immediately post-deferred action.” The 5th Circuit adopted this limiting principle in Texas v. United States: “[M]any of the previous programs were bridges from one legal status to another, whereas DAPA awards lawful presence to persons who have never had a legal status and may never receive one.”
These arguments are sufficient to confirm the attorney general’s conclusion that DACA is unlawful. The Administrative Procedure Act cannot be read to force the executive branch to continue implementing a policy that is contrary to law, regardless of how it chooses to rescind the policy. But even if the court disagrees — or declines to reach that issue — the executive branch has still provided adequate grounds to justify the rescission of DACA.
The attorney general reasonably determined that DACA is inconsistent with the president’s duty of faithful execution. Admittedly, the attorney general’s letter justifying the rescission is not a model of clarity. But it need not be. This executive-branch communication provides, at a minimum, a reasonable constitutional objection to justify DACA rescission. Specifically, it invokes the “major questions” doctrine — outlined by Justice Neil Gorsuch in dissent in Gundy v. United States – which is used “in service of the constitutional rule” that Congress cannot delegate legislative power to the executive branch.
In other words, if federal law in fact supported DACA, then important provisions of the INA would run afoul of the nondelegation doctrine. The attorney general, as well as the 5th Circuit, rejected this reading of the INA. Here, the Supreme Court should accept the executive’s determination of how to avoid a nondelegation problem: by winding down a discretionary policy. Indeed, if there were any doubt, Trump explained in his own words what the “constitutional defects” in DACA were. He declared that DACA was a “[t]otally illegal document which would actually give the President new powers.” In other words, DACA relied on a reading of the INA that would delegate legislative powers to the executive that he lacks. Stripped of all legal formalities, the presidential tweet concisely explains why DACA was inconsistent with the president’s duty of faithful execution. Candidly, it is far more descriptive than the attorney general’s letter. And it comes right from the commander in chief. (For once, the president tweeted something that helps his case!) The record amply provides enough ground to justify the rescission of DACA.
* * *
Returning to our theme of the difference between law and policy, we often offer similar advice to law students: Ask your professors to give examples of policies they like but think are not constitutional, or those they don’t like but think are. That question poses a real test of intellectual integrity. If your policy preferences and legal theories always align, you should reconsider the latter. Some policies we dislike are, regrettably, lawful — as the late Justice Antonin Scalia would say, “stupid, but constitutional.” And other policies we favor are, regrettably, unlawful. DACA falls into the latter category.
The president simply can’t make the requisite legal changes by himself to give this relief to the Dreamers. As one of us (Ilya) put it in the Washington Post, such unlawful executive actions both set back prospects for long-term reform and, more importantly for a Supreme Court case, weaken the rule of law. The justices should reverse the lower courts and restore the immigration debate to the political process — exactly where it belongs.Josh Blackman is associate professor of law at South Texas College of Law Houston and an adjunct scholar at the Cato Institute. Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute.
7 Dem Debate Questions Jorge Ramos Won’t Ask
by Michelle Malkin
These are the rules of the militant open borders media:
If you are a self-declared Donald Trump-hating “activist journalist” who works for an ethnic separatist TV network that unapologetically elevates illegal immigrants over American citizens, you get to be a “moderator” at the next Democratic presidential candidates’ debate.
Case in point: Univision’s Jorge Ramos.
But if you are an activist journalist who exposes immigration anarchy, investigates the global financiers behind it and unapologetically defends American sovereignty, you are dismissed as a “conspiracy theorist” and “racist” who will never be allowed to pose counterbalancing questions at any national political forum.
Case in point: yours truly.
If there is no mainstream media bias, why is it that the most buzz-worthy immigration questions asked by the media’s phony arbiters of neutrality are all framed from the perspective of illegal immigrants — and never American citizens?
If Democrats “don’t want ‘open borders,'” as anointed fact-checker at the Fishwrap of Record (a.k.a. Linda Qiu of The New York Times) claims, why is it that every last Democratic candidate marches lockstep on the side of exponentially expanding government benefits, rights and privileges for illegal immigrants — driver’s licenses, in-state tuition discounts, “Medicare for All” — and never limiting them?
And why has the fundamental concept of “sovereignty” never been deemed a worthy enough topic for a stand-alone national town hall — unlike guns or climate change?
Here is my top seven list of Democratic debate questions on immigration that Jorge Ramos (and the rest of the feckless Fourth Estate elites, for that matter) won’t ask:
1) This debate is taking place on the day after the 18th anniversary of the 9/11 attacks by 19 foreign Muslim hijackers, five of whom had overstayed their temporary visas. A bipartisan commission urged our government to build a biometric entry-exit program to track and remove visa overstayers — who comprise an estimated 40% of the total illegal immigrant population. But thanks to Open Borders Inc. lobbyists from the travel industry, universities and big business, the system has never been finished. In 2018, nearly 670,000 foreigners broke the rules and overstayed their visas. Will you protect America by fulfilling the 9/11 commission’s recommendation to implement a fully functioning entry-exit program?
2) This debate is taking place in Houston, long a “sanctuary city” for illegal immigrants. The deliberate failure to check the immigration status of criminal suspects and the willful decision not to cooperate with federal Immigration and Customs Enforcement agents has resulted in untold deaths, including the murder of Houston police officer Rodney Johnson in 2006. Johnson’s killer had been previously deported to Mexico, re-entered illegally and was arrested at least three times for drunk driving and child molestation charges before shooting Johnson, an Army veteran and Houston PD gang unit leader, fatally during a traffic stop. Do you support the right of American citizens such as widow Joslyn Johnson, whose loved ones were murdered by repeat illegal alien criminal offenders, to sue sanctuary cities that prevent cops from communicating with ICE agents about detainees’ immigration status?
3) This debate is taking place in Texas, where the notorious Mexican serial killer Angel Resendiz wantonly murdered more than 15 innocent men and women between 1986 and 1998 by exploiting our catch-and-release system. More recently, Kenyan serial killer suspect Billy Chemirmir was arrested in the gruesome smothering deaths of 12 elderly women and one grandfather across Texas. Those victims would still be alive today if Chemirmir had been deported after overstaying his visa, entering a fraudulent marriage to an American citizen and racking up multiple charges of assault and domestic violence. What is your plan — let’s start with planner-in-chief Elizabeth Warren — to prevent senseless and deadly violence committed by criminal illegal immigrant deportation fugitives?
4) Teenager Joshua Wilkerson was tortured and beaten to death by an illegal immigrant from Belize near the sanctuary city of Houston. Wilkerson’s mom, Laura, confronted Nancy Pelosi about the devastating impact sanctuary anarchy had and asked: “How do you reconcile in your head about allowing people to disavow the law?” Do you support the continued separation of American families by criminals in this country illegally protected by sanctuary policies? How do you reconcile Pelosi’s glib rhetoric that illegal immigrants are “law-abiding” with the bloody reality suffered by Rodney Johnson, Wilkerson and the dozens of victims of Angel Resendiz and Billy Chemirmir?
5) ICE agents have been doxxed, harassed, shot at and demonized as racist terrorists while trying to stop child predators, arrest drunk drivers, apprehend serial killers and prevent the next 9/11 plotted by visa overstayers, border crossers, deportation evaders and ID thieves. Do you condemn the reckless incitements to violence by the “abolish ICE” and antifa movements?
6) Will you renounce anti-ICE hate speech and return campaign donations from individuals and organizations who disseminate it? Let’s see a show of hands.
7) If you support every last gun control measure that might possibly “save just one life,” why don’t you support illegal immigrant crime control that could have averted the 100% preventable deaths of untold innocent Americans right here in Texas? Anyone? Anyone?
Michelle Malkin’s email address is MichelleMalkinInvestigates@protonmail.com.