Thursday, January 21, 2016

Cruising the Web

Jonah Goldberg wonders if Congress can ever get back the power that has been surrendered to the executive branch.
Congress has largely become a finger-wagging bystander. It’s great at expressing outrage. But when it comes to the messy work of legislating, it’s fallen down on the job.

This is true even when it writes “landmark” laws. The Affordable Care Act, for example, isn’t so much a piece of legislation as a letter of marque for the Health and Human Services secretary to chart whatever course she pleases. The law contains more than 2,500 references to “the Secretary,” as Philip Klein reported in 2010 in The American Spectator. In 700 of them, the law says she “shall” do X and in another 200-plus instances it says she “may” do Y. In 139 instances, it simply says the “Secretary determines.” This is just one example of how Congress routinely vests legislative power in the executive branch.

Other aspects of Congress’s authority have been hacked away and sold off in pieces. The Constitution says only Congress can levy taxes. The Founders had this crazy idea called “no taxation without representation.” And yet, numerous agencies are self-funding, raising money without having to worry about Congress’s power of the purse. For example, the Consumer Financial Protection Bureau gets its revenue from a skim of the profits from the Federal Reserve.

Not only are such arrangements a hate crime against the Constitution, they also make agencies less accountable to Congress and, by extension, the people. These agencies are, furthermore, often unaccountable to the judicial branch. Bureaucrats have their own administrative courts, which routinely deny traditional due process to plaintiffs.
This expansion of the administration is the subject of Philip Hamburger's book, Is Administrative Law Unlawful? It really is appalling how much of Congress's responsibilities they've handed off to the bureaucracy.

With this sort of attitude from the Iman of a radical mosque in Cologne, are we surprised at the attacks on women on New Year's Eve?
Warning women against “adding fuel to the fire”, the Imam of a Salafist Cologne mosque has said the victims of the New Year’s Eve attacks in that city were themselves responsible for their sex assault, by dressing inappropriately and wearing perfume.

Speaking to major Russian channel REN TV, Imam Sami Abu-Yusuf’s remarks came during a 12 minute segment bringing Russians up to date with the latest developments in the migrant invasion of Europe. Sandwiched between eyewitness-footage of migrant rampages in Cologne, women being sexually assaulted by apparently Arab gangs, and a segment on a surge of interest in self defence courses in Germany the Imam told the interviewer: “we need to react properly, and not to add fuel to the fire”.

Explaining in the view of Salafist Islam why hundreds of women found themselves groped, sexually assaulted and in some cases raped by gangs of migrant men in cities across Germany the Imam said: “the events of New Year’s Eve were the girls own fault, because they were half naked and wearing perfume. It is not surprising the men wanted to attack them. [Dressing like that] is like adding fuel to the fire”.

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Now that the Supreme Court has accepted U.S. v. Texas, the case challenging Obama's executive actions to grant lawful status to those here illegally who have had children born here. Under his actions, these illegal immigrants would be granted federal and state benefits. The states were now on the hook for paying those benefits and that gave them the standing to sue. Here is a primer on what you need to know about the case.
The states’ argument is goes to the heart of the matter. First, Obama and [Homeland Security Secretary Jeh] Johnson cannot simply will into existence new federal programs at any time they choose. Congress, in the Administrative Procedures Act (APA), required federal agencies to use what is called notice-and-comment rule-making when they promulgate new substantive rules.

Put another way, the executive branch can’t announce new programs of its own devising without first asking the American public for comment and then responding to those comments. Johnson did not utilize notice-and-comment rule-making before creating DAPA, so his memo directing DHS to create DAPA violates the law. This is what is known as the states’ procedural APA claim, and it is the basis of the district court’s ruling in the case.

Second, the states also have a substantive APA claim. This argument, which persuaded the Fifth Circuit Court of Appeals, is that Congress never authorized DHS to create DAPA in the first place. So, whether DAPA requires notice-and-comment or not, DHS cannot create the program.

This too is indisputably true. The Immigration and Nationality Act (INA) creates several forms of immigration relief, including temporary statuses, and when it does, it does so by name. For example, asylum, adjustment of status, cancellation of removal, the visa provisions, waivers, and conditional statuses are all explicitly provided for in voluminous statutory text.
But there is a real constitutional question at the heart of the case - do the President's action violate the Take Care Clause which states that the President "shall take Care that the Laws be faithfully executed."
The states’ Take Care claim goes like this: not only is DAPA not authorized by Congress (that’s the substantive APA challenge discussed above), DAPA is in fact directly contrary to the expressed will of Congress. Congress explicitly provided that a U.S. citizen (or lawful permanent resident) child of an illegal alien could not be the basis for legalizing an alien parent’s immigration status until the child turned 21 years of age unless, among other things, the removal of the parent would cause exceptional and extremely unusual hardship to the child.

Congress wanted it to be quite difficult for aliens to leverage U.S.-born children into lawful immigration status. DAPA ignores this policy goal and grants lawful status regardless of the age and hardship restrictions established by Congress in violation of the executive branch duty to take care that the laws of Congress be faithfully executed.
Over at The Volokh Conspiracy, David Bernstein, notes that there is very little background of the Court looking at the Take Care Clause. However, there is one part of a Scalia opinion from Utility Air Regulatory Group v. EPA from 2014 that was decided on a 5:4 basis and might give us a clue to how the justices regard such usurpation of power by the President.
Were we to recognize the authority claimed by EPA in the Tailoring Rule, we would deal a severe blow to the Constitution’s separation of powers. Under our system of government, Congress makes laws and the President, acting at times through agencies like EPA, “faithfully execute[s]” them. U.S. Const., Art. II, § 3…. The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.
Bernstein comments,
That’s a rather cursory discussion, and I don’t want to read too much into it. But it does provide some intriguing evidence that the conservative majority has had on its mind not just the statutory interpretation aspects of determining the scope of executive authority, but also how they relate to the president’s constitutional responsibilities under the Take Care Clause.


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Operation Fast and Furious is back in the news. You might remember that that was the totally bizarre ATF policy that Eric Holder's Justice Department implemented to allow guns into Mexico to supposedly track where they went except they neglected to actually track those weapons. One of those guns was used to kill a U.S. Border Patrol agent and other individuals in Mexico. And now we find out that El Chapo had one of those rifles.
A .50-caliber rifle found at Joaquin "El Chapo" Guzman’s hideout in Mexico was funneled through the gun-smuggling investigation known as Fast and Furious, sources confirmed Tuesday to Fox News.

A .50-caliber is a massive rifle that can stop a car or, as it was intended, take down a helicopter.

After the raid on Jan. 8 in the city of Los Mochis that killed five of his men and wounded one Mexican marine, officials found a number of weapons inside the house where Guzman was staying, including the rifle, officials said.

When agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives checked serial numbers of the eight weapons found in his possession, they found one of the two .50-caliber weapons traced back to the ATF program, sources said.
President Obama has been claiming executive privilege to keep communications about this operation from Congress. Well, a federal judge just denied executive privilege.
A federal judge rejected Tuesday the Obama administration's claim of executive privilege to block a congressional committee from obtaining records relating to a bungled gun trafficking investigation.

The very information that the administration sought to deny investigators with the House Committee on Oversight and Government Reform had been made public in 2012 by the Justice Department's inspector general's review of a Bureau of Alcohol Tobacco Firearms and Explosives operation known as "Fast and Furious,'' U.S. District Judge Amy Berman Jackson wrote in a 32-page opinion.

The trafficking operation allowed hundreds of firearms to fall into the hands of Mexican drug cartel enforcers and prompted numerous investigations and a protracted political fight in which the House voted in 2012 to hold then-Attorney General Eric Holder in contempt of Congress for refusing to turn over documents related to the ATF operation to the committee. The dispute prompted the committee's court challenge

"There is no need to balance the need against the impact that the revelation of any record could have on candor in future executive decision making, since any harm that might flow from the public revelation of the deliberations at issue here has already been self-inflicted,'' Jackson wrote. "The emails and memoranda that are responsive to the subpoena were described in detail in a report by the Department of Justice Inspector General that has already been released to the public.''
Jim Geraghty reminds us that one of the Muslim terrorists who attempted to murder those at the "Draw Muhammad" cartoon contest had a gun from Fast and Furious.
This week the scandal took on a new dimension with the revelation that Nadir Soofi, one of two Muslim terrorists killed attempting to murder attendees of a “Draw Muhammad” cartoon contest held in Texas in May, had acquired one of the guns he owned as a result of the Fast and Furious operation. This meant that the Bureau of Alcohol, Tobacco and Firearms was in the position of indirectly selling Islamic terrorists one of the weapons they may have used in an attack on Americans on American soil.

This was an absolutely ridiculous operation and the administration has been stonewalling Congressional insight for years. Perhaps we're on the verge to discover more about what was going on. The wheels of justice grind slowly, but they grind exceedingly small.

Geraghty also contrasts the ubiquity of Barack Obama on magazine covers in 2008
with that of Donald Trump.
(Sorry for having the wrong link before.)
Who would think that Republicans would be falling for the same trap of choosing someone on the aura of his personality rather on his record and ideology.

This is how bad it is for Europe's Jews: they're being offered refuge from Vladimir Putin.

This is a key exchange
from last week's Supreme Court hearing on the case regarding forced dues for teacher unions that might doom the union's argument.

Jim Geraghty reminds us of an April, 2009 appearance by Donald Trump on Larry King in which he praised President Obama as "somebody that people trust" and who is "doing a really good job." He defended the TARP bailouts. He hosted fundraisers for Charlie Crist and donated to Harry Reid in 2010. Amanda Carpenter also looks at what Trump has done to "promote the values that Palin's supporters have been advocating for the past eight years."
For starters, look at the three major issues that gave rise to and have animated the Tea Party since 2008 when then-Governor Palin burst on the national scene: The bailouts, the stimulus, and Obamacare.

At several points in her endorsement speech, Palin decried “the establishment,” a term that became popular in response to Republicans and Democrats cooperating to prop up Wall Street banks after the 2008 financial crash. Palin supporters, by and large, vehemently opposed the bailouts.

Did Trump? When the time came to choose between the Tea Party activists and his friends in the New York/Washington corridor, Trump chose the latter.

Donald Trump was no Rick Santelli. Trump was for the $700 billion bailout program, which is as establishment as it gets. He was for the subsequent auto bailout, too.

President Obama’s $787 billion stimulus bill? Yep. You betcha. Trump was for that.

Obamacare? Sure, Trump says he wants to repeal it, but his plan only seems to involve more government. “I’m going to take care of everybody…the government’s gonna pay for it,” he has previously said. Thousands of people protested against Obamacare in 2009, joining together in our nation’s Capital that March. Trump, most likely, would have been welcomed on the stage. But Trump wasn’t there. In fact, Trump wasn’t anywhere to be seen or heard from around that time -- When it mattered.

Robert Tracinski looks at Palin's rambling endorsement speech and finds some parts just ludicrous.
Then there were the outright howlers, like when she hailed Trump as being “from the private sector … where … you actually have to balance budgets” and as someone who “doesn’t get his power…off of…other people’s money.” This — about a man who is famous for using bankruptcy to slough off bad debts. The phrase “other people’s money” was coined specifically to refer to the kind of financial arrangements that Trump specializes in.

Palin denounced crony capitalism while endorsing a man who buys politicians.
Palin went on to denounce crony capitalism, while endorsing a man who boasts about buying politicians. She hailed his agenda as “pro-life, pro-Second Amendment, strict constitutionality,” all issues where he has long been on the other side. Then there’s the fact that she talked about Trump being hawkish and standing up to our enemies overseas, then diverted her speech to specifically endorse Rand Paul, the libertarian anti-interventionist, on foreign policy. Some hawkishness.

But that’s what shows us how we got here. You will look in vain in this endorsement speech for any kind of ideological substance or coherence. Instead, here is the real essence of Palin’s endorsement, in two sentences.

"Mr. Trump, you’re right. Look back there in the press box. Heads are spinning, media heads are spinning. This is going to be so much fun."

And:

"Trump, what he’s been able to do, which is really ticking people off, which I’m glad about, he’s going rogue left and right, man, that’s why he’s doing so well."

Plenty of people have observed before that Trump’s candidacy is based on media celebrity. This endorsement speech reminds us that it’s a variety of media celebrity that people like Palin perfected. It’s a kind of political celebrity that is light on ideological substance or coherence and heavy on “ticking people off” and “making media heads spin.”

How did we get from Sarah Palin in 2008 to Donald Trump in 2016? Because the Right has been tempted to sell its soul by putting personality over principle and emotion over reason. We have been tempted into embracing as our leaders and spokesmen a series of media personalities whose main selling point is that they are outrageous and controversial and like to stick a finger in they eye of the Mainstream Media and infuriate “the Establishment” and the “PC Left.”

All of which is well and good, if it is in pursuit of a coherent pro-freedom ideology, by which I mean a coherent view of the world and of the role of government as embodied in a broad and consistent political agenda. That’s what Rush Limbaugh used to do.

But when we embrace these media personalities, the danger is that we will end up just having the outrageous and flamboyant personality, without the coherent ideology.
Add in what Trump said about John McCain, the man whom Palin professes great admiration and loyalty and without whom, she would still be in Alaska. Clearly, ideology and history have no meaning for her.

Harry Reid has a plan to try to keep $600,000 of his campaign funds after he retires to fund a personal assistant.
Let’s see. Senator Reid is a champion of campaign-finance regulation who complains the FEC doesn’t do enough to purge money from politics. Yet he now wants to use campaign funds for personal use. This is supposedly kosher because if Mr. Reid had not served as a federal officeholder for 34 years, he would “bear no responsibility” to “appear before audiences to discuss his tenure in office” (read: give speeches for money). And if he can’t get a favorable opinion from the FEC, he’ll simply do what he wants anyway.

Mr. Reid seems to think that holding a powerful political office has its privileges even if he’s no longer in office. If you want to know why Americans loathe politics, Mr. Reid’s behavior is a prime exhibit.


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If you are one of the people who, like me followed all the rumors and arguments revolving around Deflategate, you might be surprised to learn how thoroughly debunked all the accusations against Brady and the Patriots have been. Dan Wetzel explains. I hadn't realized who was handling the NFL's investigation.
The NFL brought in the group Exponent to handle its scientific analysis of the game balls. Exponent, of course, has been accused for decades for being hired by corporations to study and provide favorable finding on things such as the dangers of second-hand cigarette smoke, asbestos, possible automobile design flaws and even whether the Exxon Valdez needed a second hull. Exponent denies this and says its science is sound.

In this case, even Exponent acknowledged that it couldn't "determine with absolute certainty whether there was or was not tampering." That didn't matter to the NFL. Exponent couldn't rule out foul play, either.
As Wetzel points out, scientists who have had access to the data from the Wells' report that used Exponent's investigations have been able to destroy the conclusions on which the NFL relied.
As time has allowed more serious analysis to come in, the results have been an overwhelming destruction of the conclusions of Wells, Exponent and the consulting work of Princeton professor Daniel Marlow.

It's been from all directions: the Massachusetts Institute of Technology (multiple studies), Carnegie Mellon University, the University of Chicago, Boston College, the University of Nebraska, the University of Illinois, the University of New Hampshire, Bowdoin College, Rockefeller University, where a Nobel Prize winner couldn't have lampooned it more viciously, and so on and so on.

Then there were unaffiliated retired scientists, climate experts, professional labs, even the conservative think tank American Enterprise Institute, which crushed the science of Wells' report. A fourth-grader in Sacramento discredited it for her school science fair.

And these are just some of the ones that received media attention.

About the only counter argument is all these people must all be Patriots fans (they aren't). Even if they all were, they'd be opening themselves up to scientific ridicule for their conclusions from other scientists who aren't Patriots fans.

Only no one is ridiculing them. No one is criticizing these critics. It doesn't appear anyone is fighting back.

Maybe there is a professor or study out there that, with the currently available information, defends Exponent, Wells and the NFL, but there aren't any readily found on the Internet or in scientific journals. They certainly aren't making themselves easy to find.

If every smart scientist who studied this case (and isn't affiliated with the league) says nothing happened, then how long does everyone keep saying something did?
This has become one of those stories in which people think they know what happened even though it's all false. It's like the Duke Lacrosse scandal. The more I read about this, the worse Goodell and the NFL look. Wetzel refers to this youtube video from MIT professor John Leonard that explains the science debunking Deflategate. I know zero about any of the science, but I can follow his explanation. Too bad the NFL didn't consult any real scientists.
I wish that ESPN and other venues would spend as much time discussing the debunking of the Deflategate allegations as they did just discussing them as if the leaks from the NFL were actual facts.

This past Saturday, four of my students from my Quiz Bowl team appeared on a local quiz show for high schoolers. If you're interested, you can watch their appearance. I'm quite proud of them; they're great kids to work with and really nice people.

4 comments:

Johanna Lapp said...

Golly, those two arrays of magazine covers are eerily similar...

Check your image links.

Johanna Lapp said...

And Europe's Jews are being offered refuge BY Putin, not FROM Putin.

Although they'll soon be wanting the latter if they're foolish enough to accept the former.

karmakelli2000 said...

Silly wabbit, the Supremes have already decided on DAPA and all related immigration questions, and it's WOW: Whatever Obama Wants.

As long as the Obama Minions have GPS status on Justice Roberts' grandkids, all decisions are preordained. SCOTUS has decided to hear the case now in order to cross all the Ts before Most Exalted's departure.

Once Trump starts measuring the drapes it'll be much harder for Juan and his 87 close relatives to belly up to our Welfare Bar.

tfhr said...

k2,

"GPS status"? I find some of Roberts' decisions to be unfathomable but insinuated violent reprisals is a bit much, even in jest.

While it's not good enough because of the important cases he has won, Obama's lost more than 50 percent of the time he's taken it as far as the Supreme Court. That's the lowest since Truman.

Here's an interesting article on the subject:
http://fivethirtyeight.com/datalab/despite-this-weeks-victories-obama-has-struggled-at-the-supreme-court/

I wouldn't get my hopes up on Trump fixing this mess by himself unless you're counting on a term of executive orders that can be rescinded the next time someone disposed to facilitating uncontrolled and illegal immigration is sitting in the White House.