Well, I see legal differences, Kurt, even though I did focus on policy ones. Cuba was a huge exception in immigration law, and it was made less exceptional.
I've looked closely at the immigration laws of Canada and New Zealand, although I'm far from an expert in either. Their laws do seem to make sense. I have not looked at Australia's immigration law or policy, but will do so.
John
-----Original Message-----
From: Academy of Legal Studies in Business (ALSB) Talk [mailto:[log in to unmask]] On Behalf Of Kurt Schulzke
Sent: Sunday, January 29, 2017 1:51 PM
To: [log in to unmask]
Subject: Re: lawful choice v. good policy
Interesting policy argument. But I asked about legal differences.
But along policy lines, what do you think of the Canadian immigration model? I understand it's pretty much identical to Australia's and has worked famously for Canada:
http://www.immigration.ca/who-qualifies-for-canadian-permanent-residence-skilled-worker-immigration/
----- Original Message -----
From: "John Allison" <[log in to unmask]>
To: "Academy of Legal Studies in Business" <[log in to unmask]>
Sent: Sunday, January 29, 2017 2:40:54 PM
Subject: Re: lawful choice v. good policy
And I find it curious, Kurt, that you would view the two actions as equal. This does not calculate.
I certainly didn't agree with everything Obama did, but this action was a change from a policy that had given Cuban immigrants a free pass just for the purpose of opposing of opposing the Castro regime by siphoning off Cuba's best and brightest. The previous policy had continued long after it made any sense. And Obama's change was part of the larger objective of beginning to normalize relations with Cuba long after our attempts to isolate the nation made any sense.
John
John R. Allison
The Spence Centennial Professor of Business, and Professor of Intellectual Property Law McCombs School of Business University of Texas at Austin
I assume that Michael meant that what is lawful does NOT depend on who is President. Speaking of which, how does President Trump's ban compare legally to President Obama's buzzer-beater on Cuban immigration, which Prof. Volokh called a "cruel policy reversal."*
I find it curious that no one on this list questioned Obama's ban. Is this a double standard? Or are their legal distinctions to be made?
*See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/01/14/obamas-cruel-policy-reversal-on-cuban-refugees
----- Original Message -----
From: "Michael O'Hara" <[log in to unmask]<mailto:[log in to unmask]>>
To: "Academy of Legal Studies in Business" <[log in to unmask]<mailto:[log in to unmask]>>
Sent: Sunday, January 29, 2017 11:29:13 AM
Subject: lawful choice v. good policy
ALSBTALK:
Executive over reach is an unlawful choice. A very different question is whether the choice is good policy.
President Jefferson multiple times concluded the pressures of the moment on the office of the President urged as good policy acts he previously (when he did not occupy the office) had publicly categorized as executive over reach (e.g., act of war). Other Presidents were primarily different in that they had not spoken so publicly on the limits of the office prior to occupying the office.
Judicially, Justice Frankfurter famously observed that the altitude affects the attitude.
In short, a person's good faith perceptions might vary materially when the context of one's perception changes materially. Critically, what once was viewed as an unambiguously unlawful choice might come to be perceived as such a good policy as to be transformed into a lawful choice. At the same time and in the same context another observer might hold an invariant good faith observation of the range of lawful choices from which good policy choices are constrained to be selected.
Lawful does depend on who is President. Whatever criteria of lawful executive action is used for the 44th President ought be used for the 45th President: and visa versa. What does depend on who is President are (1) the viewer's array of preferred policy choices; and (2) the viewer's trust of the President in question.
I recommend legal analysis focused on the law rather than policy and person. Once the range of lawful choices is identified, to my view, only then can "good" policy be chosen since unlawful choices, in my experience, are not good policy.
Michael J O'Hara: from phone
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