Noah Feldman: Biden’s immigration order is built to fail

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President Joe Biden has issued an executive order that shuts down the southern U.S. border to all but a few asylum-seekers — a move reminiscent of former President Donald Trump’s efforts, which were blocked by the federal courts.

The political motivation is obvious: Immigration has become a serious worry for Biden in the presidential race, and Republicans in Congress have blocked bipartisan legislation that would have provided much-needed funding for border control and processing asylum applications.

Yet Biden’s order is both morally and legally troubling. If implemented, it would deny asylum to people who legally deserve it — those who would be persecuted in their countries of origin. And the order is almost certainly unlawful under the standards imposed by the courts on Trump’s similar orders. If federal judges are consistent, they will block Biden’s order from going into effect.

That’s the likely outcome. And it raises an important ethical problem at the intersection of politics and law: When is it justified for the executive branch to issue an order it believes will win some political points, but knows (or hopes) will be struck down by the judiciary? This cynical approach undermines the rule of law.

The legal issues are technical but can be summarized roughly as follows. Under current law, non-citizens (called “aliens” in legalese) who come to the U.S. and seek asylum cannot simply be sent home. They must be given an opportunity to make the case that, if sent home, they would be subject to persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Currently, federal law entitles them to a quick screening interview. Between 2014 and 2019, 83% of asylum-seekers passed this hurdle. In 2023, however, the Biden administration made it harder to get through the interview, and the number who pass that stage has since dropped to 52%. But, like the Trump administration before it, the Biden administration has now taken action to get the number a lot lower – essentially to zero.

Trump’s executive actions on the border relied on section 212(f) of the Immigration and Nationality Act, which says the president can suspend entry of any class of aliens if he determines their entry would be “detrimental to the interests of the United States.” To oversimplify a bit, the federal courts rejected Trump’s claim that this provision let him shut down the border to asylum applicants.

Other statutes say that people who have arrived in the U.S. “shall” be given the opportunity to claim asylum, irrespective of their manner of entry. The courts concluded, again oversimplifying a little, that section 212(f) did not allow the president to override those statutes.

Biden’s executive order also relies on, you guessed it, 212(f). The only real differences between Biden’s order and Trump’s are exceptions provided for unaccompanied minors and those subject to sex trafficking, and a statement that the border closure only applies while the number of “encounters” with asylum-seekers at the border stays above 1,500 per day. That number currently stands above 2,500 per day.

It’s hard to see why Biden’s exceptions should make a difference legally: If Trump lacks the authority to deem all asylum-seekers’ entry detrimental to U.S. interests, Biden shouldn’t have the authority to deem all asylum-seekers detrimental except for kids and people forced into prostitution.

The same logic holds for the supposedly “temporary” nature of the closure until the number of asylum-seekers at the border decreases. Asylum law isn’t about numbers. It gives each person the chance to seek asylum — and to get it — if the law fits his situation.

This brings us back to the ethical quandary. There can be little doubt that, if Biden’s order stays in effect, actual people who deserve and need asylum won’t get it. In the past, nearly a quarter of those who sought asylum received it or some other form of protection. Under the new order, many of those people would now be sent home to face persecution, from rape to torture to unjust imprisonment.

Yet the Biden administration surely knows that immigration advocates will challenge the order in court, as the ACLU has already indicated it plans to do. If the order is then blocked relatively quickly, as Trump’s orders were, then perhaps these asylum-seekers won’t be harmed. You can imagine someone thinking, “No harm, no foul” — and that order would be justified if it helps Biden get reelected. After all, in a Trump presidency, presumably, immigration opportunities would be even smaller.

The danger with this ends-justify-the-means thinking is that it undermines the idea of the rule of law itself. The Biden administration should have been more respectful of the precedent set by the courts under Trump. Now it’s up to the courts to make sure the law Congress passed is followed until Congress decides to change it.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.”

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What the Fed’s continued rate pause means for homebuyers and sellers

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Jeff Ostrowski | Bankrate.com (TNS)

Inflation is still running well above plan, and that means the Federal Reserve is keeping its finger firmly on the pause button. The central bank raised rates 11 times in 2022 and 2023, with the expectation that it would reverse course this year. But as inflation has stayed above 3%, it is standing pat. Following the Fed’s June 12 meeting, its fourth gathering of the year, Chairman Jerome Powell held steady again, announcing no change in interest rates. The Fed also signaled that it’s likely to cut rates only once this year, down from its previous estimate of three cuts.

“Mortgage rates, which have remained higher for longer, will likely remain in the high 6s until later this year,” says Lisa Sturtevant, chief economist at Bright MLS, a large listing service in the mid-Atlantic region. “Some homebuyers who have been sidelined by affordability challenges are going to wait until rates come down to buy. Increasingly, home sellers may have to do more negotiating to attract offers.”

The Federal Reserve and the housing market

Earlier in the inflationary cycle, the Fed had enacted increases of as much as three-quarters of a point. Now that inflation is down to 3.3% — still higher than its official target of 2%, but not terribly far off — that round of tightening appears to be over. However, until inflation drops down closer to that target, housing economists wonder when the anticipated rate cuts will begin.

“We still look for mortgage rates to drop to about 6.5% by the end of 2024,” says Mike Fratantoni, chief economist at the Mortgage Bankers Association.

In an effort to rein in inflation, the Fed boosted interest rates aggressively in 2022 and 2023, including a single jump of three-quarters of a percentage point. The hikes aimed to cool an economy that was on fire after rebounding from the coronavirus recession of 2020. That dramatic recovery has included a red-hot housing market characterized by record-high home prices and microscopic levels of inventory.

The Fed’s rate hikes have slowed the housing market. Home sales have dropped sharply. But home prices remain near record levels. Because home values are not driven solely by interest rates but by a complicated mix of factors, it’s hard to predict exactly how the Fed’s efforts will affect the housing market.

Higher rates are challenging for both homebuyers, who have to cope with steeper monthly payments, and sellers, who experience less demand and lower offers for their homes. After hitting 8% last fall, mortgage rates have dipped back down a bit. As of June 12, the average 30-year rate stood at 7.10%, according to Bankrate’s national survey of lenders.

How the Fed affects mortgage rates

The Federal Reserve does not set mortgage rates, and the central bank’s decisions don’t move mortgages as directly as they do other products, such as savings accounts and CD rates. Instead, mortgage rates tend to move in lockstep with 10-year Treasury yields.

Still, the Fed’s policies do set the overall tone for mortgage rates. Lenders and investors closely watch the central bank, and the mortgage market’s attempts to interpret the Fed’s actions affect how much you pay for your home loan. The Fed bumped rates seven times in 2022, a year that saw mortgage rates jump from 3.4% in January all the way to 7.12% in October. In 2023, mortgage rates went higher still, briefly touching 8%.

“Such increases diminish purchase affordability, making it even harder for lower-income and first-time buyers to purchase a home,” says Clare Losey, an economist with the Austin Board of Realtors in Texas.

What happens to the housing market if interest rates rise?

There’s no doubt that record-low mortgage rates helped fuel the housing boom of 2020 and 2021. Some think it was the single most important factor in pushing the residential real estate market into overdrive.

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When mortgage rates surged higher than they had been in two decades, the housing market slowed dramatically. And, while sales volume remains slow, prices are high. The nationwide median existing-home price for April was $407,600, according to the National Association of Realtors — up 5.7% year-over-year and perilously close to NAR’s all-time-high median price of $413,800.

In the long term, home prices and home sales tend to be resilient to rising mortgage rates, housing economists say. That’s because individual life events that prompt a home purchase — the birth of a child, marriage, a job change — don’t always correspond conveniently with mortgage rate cycles.

History bears this out. In the 1980s, mortgage rates soared as high as 18%, yet Americans still bought homes. In the 1990s, rates of 8% to 9% were common, and Americans continued snapping up homes. During the housing bubble of 2004 to 2007, mortgage rates were high, yet prices soared.

So the current slowdown may be more of an overheated market’s return to normalcy rather than the signal of an incipient housing crash. “The combination of elevated mortgage rates and steep home-price growth over the past few years has greatly reduced affordability,” Fratantoni says.

But if mortgage rates pull back, affordability will become less of a factor. For instance, borrowing $320,000 at the mid-June rate of 7.10% translates to a monthly principal-and-interest payment of $2,151, according to Bankrate’s mortgage calculator. Borrowing the same amount at 8% translates to a monthly payment of $2,348. That’s a difference of nearly $200 per month.

A continued decline in mortgage rates could create a new challenge, though: It will likely draw new buyers into the market, a surge that could further intensify the ongoing shortage of homes for sale.

Next steps for borrowers

Here are some pro tips for dealing with elevated mortgage rates:

—Shop around for a mortgage: Savvy shopping can help you find a better-than-average rate. With the refinance boom considerably slowed, lenders are eager for your business. “Conducting an online search can save thousands of dollars by finding lenders offering a lower rate and more competitive fees,” says Greg McBride, Bankrate’s chief financial analyst.

—Be cautious about ARMs: Adjustable-rate mortgages may look tempting, but McBride says borrowers should steer clear. “Don’t fall into the trap of using an adjustable-rate mortgage as a crutch of affordability,” he says. “There is little in the way of upfront savings, an average of just one-half percentage point for the first five years, but the risk of higher rates in future years looms large. New adjustable mortgage products are structured to change every six months rather than every 12 months, which had previously been the norm.”

—Consider a home equity loan or HELOC: While mortgage refinancing is on the wane, many homeowners are turning to home equity lines of credit (HELOCs) to tap into their home equity. The rationale is simple: If you need $50,000 for a kitchen renovation and you have a mortgage for $300,000 at 3%, you probably don’t want to take out a new loan at 7%. Better to keep the 3% rate on the mortgage and take a HELOC — even if it costs 10%.

(Visit Bankrate online at bankrate.com.)

©2024 Bankrate.com. Distributed by Tribune Content Agency, LLC.

The Supreme Court’s ruling on mifepristone isn’t the last word on the abortion pill

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By GEOFF MULVIHILL (Associated Press)

The Supreme Court ‘s ruling on technical grounds Thursday keeps the abortion pill mifepristone available in the U.S. for now, but it won’t be the last word on the issue, and the unanimous opinion offers some clues for how abortion opponents can keep trying to deny it to women nationwide.

Some state attorneys general have indicated that they’ll press ahead, though they haven’t laid out exactly how.

And while the ruling said the anti-abortion doctors who brought the lawsuit failed to show they’ve been harmed when others use the drug, that might not stop some other plaintiff from a successful challenge.

“The decision is good that the doctors don’t have standing,” said Dr. Rebecca Gomperts, director of Aid Access, an abortion pill supplier working with U.S. providers. “The problem is, the decision should have said that nobody has standing in this case – that only the women have standing.”

Justice Brett Kavanaugh’s opinion even provides a road map for people with “sincere concerns about and objections to others using mifepristone and obtaining abortions.”

“Citizens and doctors who object to what the law allows others to do may always take their concerns to the Executive and Legislative Branches and seek greater regulatory or legislative restrictions on certain activities,” he wrote.

That route would be more likely to work for them if Republican Donald Trump is elected president in November than if Joe Biden remains in office.

The Alliance for Hippocratic Medicine sued the Food and Drug Administration in 2022, a few months after the Supreme Court overturned Roe v. Wade and ended the nationwide right to abortion. Most GOP-controlled states had implemented new bans or limits on abortion by then. The anti-abortion doctors sought a ruling that would apply nationwide, asking judges to find that the FDA wrongly approved and eased access to mifepristone.

A federal judge in Texas and the New Orleans-based U.S. 5th Circuit Court of Appeals validated many of the group’s arguments, making some Democratic-controlled states nervous enough to stockpile abortion pills.

Most medication abortions use a combination of mifepristone, which is also used in miscarriage care, and another, misoprostol. The latter drug can also be used alone — but women are more likely to experience side effects that way.

About half the abortions across the nation involved such pills before Roe was overturned. By last year, the medication was used in nearly two-thirds, one survey found. Providers in some states are using telehealth appointments to prescribe and mail them to women in states with bans or restrictions. Underground networks distribute them, too.

After the doctors group filed suit, represented by Alliance Defending Freedom, a conservative Christian law firm, Republican attorneys general for Idaho, Kansas and Missouri tried to get involved. They were allowed into the case by U.S. District Judge Matthew Kacsmaryk, then denied an intervening role by the Supreme Court.

David S. Cohen, a law professor at Drexel University who studies abortion-related law, said that normally, intervenors like the states would not be allowed to continue if the main parties have their claims dismissed because they lack standing, but that’s not yet clear in this case, and the attorneys general aren’t giving up.

“We are moving forward undeterred with our litigation to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said on X.

When they were trying to intervene, the attorneys general contended that allowing mifepristone interferes with their ability to enforce their states’ abortion bans, and that state taxpayers could have to pay emergency room bills when women who use it have complications.

It’s no sure thing that the Supreme Court would accept such arguments as a reason to give the states standing, said Mary Ziegler, a historian at the University of California, Davis School of Law who studies abortion. “The court is leery of things that are speculative,” she said.

However, Ziegler said in a post on X Thursday that “One could read parts of this opinion as creating a roadmap to future plaintiffs.”

And she noted that the ruling made no mention of the Comstock Act, a 19th-century federal vice law that conservatives have argued can be invoked to prevent abortion pills from being shipped across state lines. The Biden administration does not interpret it that way — but another might. And if an abortion opponent takes charge as U.S. Health and Human Services secretary, they could revoke or alter the Food and Drug Administration’s approval of mifepristone.

Still another approach could be for Republican states to challenge the shield laws that seek to protect healthcare providers in some Democratic-controlled states when they prescribe pills to patients in states with abortion bans.

Jillian Phillips, a mother in North Brookfield, Massachusetts, who took mifepristone to help pass the remains of a pregnancy when she miscarried eight years ago, said it’s hard for her to think of Thursday’s ruling as a win for abortion rights, because of all it could lead to.

“My fear is always that when we make a step forward,” she said, abortion opponents “get even more desperate to put even more barriers in place and restrict things even further.”

___

Associated Press reporters Kimberlee Kruesi in Nashville, Tennessee, and Laura Ungar in Louisville, Kentucky, contributed to this article.

Class 4A baseball state semifinal: East Ridge 10, Forest Lake 1

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Luke Skinner went 2 for 3 with an RBI and two runs scored, and Alex Mazzetti added a two-run triple as third seed East Ridge beat Forest Lake, 10-1, in a Class 4A baseball state tournament semifinal at CHS Field.

Will Preimsberger pitched three scoreless innings for the Raptors (20-6), who advanced to defend their 2023 state title Monday at Target Field against the winner of the late afternoon game between Mounds View and top-seeded Wayzata.

Forest Lake bows out with a 14-12 record. The Rangers upset No. 2 seed Farmington, 1-0, in Thursday’s quarterfinals.

Jacob Reigert was 2 for 2 with two runs scored and a sacrifice fly and pitched two scoreless innings of relief for the Raptors. Jack Blink, Luke Ryerse, Bennett Skinner and Colton Widen also drove in runs for East Ridge, which finished the season 3-0 against its Suburban East Conference rival.

Trailing 10-0 in the fourth, the Rangers finally scored when TJ Heikkla opened the inning with an infield single, moved to second on a walk by Zach Schnabel and scored when the relay on a potential double play grounder went astray.

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Class 4A baseball state quarterfinal: East Ridge 7, Eastview 1