Is There a Kavanaugh Effect in Academia? A Personal Account

The Kavanaugh confirmation hearings polarized America. It also energized conservatives and liberals. Have conservatives in academia been emboldened to silence or mute liberals?

The NYU Journal of Law and Liberty is a libertarian law review. Their point of view is that governments over-regulate, and violate basic human liberties. They favor freely operating markets, including labor markets.

The journal invited authors with differing viewpoints to write research articles on President Trump’s regulation of immigration via executive orders.

I wrote on the “Hire American” executive order. It seeks to bring “rigorous” enforcement to the H-1B visa program. This visa is for “specialty occupations”—typically, computer programmers. By law, 65,000 visas can be issued. Every year this allotment is filled in a few days.

President Trump’s executive order impairs this system by requiring petitions be granted only for the “highest paid or most qualified” people. I have emphasized the text to show that the real meaning of the order is to significantly draw down H-1B visas below the allowable limit. After all, 65,000 foreign workers cannot all be the highest paid or the most qualified. The impact for technology employers could be significant.

I make an argument—with census data, with visa data, and with the Trump administration’s harsh language about immigrants taking work from Americans— that the order is biased against Asian Indians, who comprise more than 50% of the H-1B visas and 70% of the technology labor market sector. The order seeks to displace Indian workers for white Americans.

I presented my paper in February with others at NYU—a normal experience. My paper underwent a lengthy and thorough substantive editing in August and September, where I made substantial revisions.

Today—on the eve of publication— the journal required me to make four significant changes, two of them major (below), and “offered” that if I don’t meet the new deadline, my article will be delayed (without any certain date of publication). I have withdrawn my article and will start over.

The journal’s main concern is my failure to discuss Trump v. Hawaii, the “travel ban” (Muslim ban) Supreme Court case, and the Trump administration’s removal of its press conference from the White House website.

Here is my brief reply:

The more germane question at this point is why you and your fellow editors are insisting on such extensive revisions on October 16, 2018 when you returned my paper to me for substantive edits during the Labor Day holiday weekend (and which I returned in early September) without raising this concern.

Trump v. Hawaii was decided on June 26, 2018. Why has it become such an important editorial matter today when you never flagged this as a concern in late August/early September?

I note, to your point, that the Trump ban upheld by the Supreme Court was not an executive order but Proclamation No. 9645, a third redraft of two earlier executive orders (and significantly more narrow) that were thoroughly discredited by judges across a broad ideological and geographical range.

If President Trump wants to revise and narrow the “Hire American” executive order two more times, as he did with the travel ban that the Supreme Court actually ruled on in June, then I will agree with you that my analysis is wide of the mark.

To your comment that “but the transcript is easily accessible from the error page by using the search bar to search for it. This undermines the section of your paper which suggests that the briefing was removed to conceal the discriminatory motive.”

This is an entirely unfair criticism of my paper. Essentially, you are saying that the motives for the order are transparent because, with enough internet skill and persistence, a person can work past the White House error page—which I verified on several occasions—and get to the “real” motive behind the executive order.

That type of executive branch transparency is more fitting for President Vladimir Putin, not a United States president who is pushing the boundaries of executive orders to new and untested limits.

In short, this has become your article, not my article—and your comments below evince more than skepticism of my analysis but an intent to eviscerate its primary thesis of racially discriminatory intent behind the executive order.

So what has changed, all of a sudden? I really don’t know … but I do wonder if this type of aggressive and retrogressive editorial policy (raising new issues late in the process, not earlier) is related to the right’s pushback over Justice Kavanaugh. In terms of timing, I cannot think of another reason.