Tuesday, January 24, 2017

Cruising the Web

Jan Crawford of CBS reports that Trump is leaning toward Judge Neil Gorsuch for his Supreme Court nominee. I had never heard of Judge Gorsuch so I headed to the go-to site on the Court, Scotusblog, for their profile of his positions on several important issues and was much encouraged. He sounds like the closest we might get to a worth replacement for Justice Scalia. I am especially encouraged by his strong opinions against the expansion of the administrative state, an issue where he is more conservative than the position that Scalia took.
In short, Gorsuch definitely has a different take from Scalia on the administrative state — one that grants it less power, and so accords even more closely with the conservative conception of small government. Indeed, this is an area in which Gorsuch is plainly a thought leader, expressing judicial sentiments many conservatives with similar concerns have rarely voiced, and which even Scalia might have bristled at. But given their parallel commitments to textualism and their parallel understandings of the relative roles of agencies and courts, even this seems like a bridgeable divide between Gorsuch and the justice he might replace. Gorsuch is still a very natural choice for any Republican president to nominate as a replacement for Scalia — someone who would espouse similar principles, stand firm on similar doctrinal commitments, reach similar outcomes, and even fill a similar role as one of the court’s most articulate defenders of conservative judicial theory.
He sounds like someone conservatives could strongly support. And, while the Democrats are going to be sure to demonize and attempt to Bork whomever Trump nominates, Gorsuch might be harder to do so than Judge William Pryor whom the Democrats already filibustered into the Gang of 14 stepped in to get onto the courts.

I suspect that Jan Crawford has good sources when it comes to the Supreme Court though I'm not sure how good her sources within the Trump administration are but maybe Trump's advisers on the Supreme Court nomination are within the same community from which Crawford got her information for her excellent book, Supreme Conflict, on the Court. I highly recommend her book if you're interested in the Supreme Court. TO a degree uncommon for mainstream journalists, she is particularly fair in how she covers the conservative justices, especially Clarence Thomas.

Allahpundit adds in this analysis about the strategic decision to nominate Gorsuch.
Maybe, though, the White House has calculated that Democrats will filibuster the first pick no matter who it is, in which case they’re better off leading with someone like Gorsuch who’s harder for the left to demonize than Pryor is. Gorsuch is from a purple state, Colorado; Pryor is from the deep south. There’s no Lawrence-style ammo against Gorsuch as there is for Pryor. Democrats will have a harder sell convincing the public that Gorsuch is an “extremist,” but if they end up filibustering anyway — as their base will probably demand — that’ll give McConnell a reason to eliminate the filibuster on more favorable political terrain.

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David Catron looks
at the executive order that Trump issued on his first day in office to slow down implementation of Obamacare anc concludes that it is more than a sop to his supporters to show that he means to end the law. Jonathan Adler writes on the same question to analyze how much can be unraveled through executive order. Since so much of what the Obama administration did with the law was through executive order, the precedents have been set for Trump.
Under normal circumstances, this would not mean much, as it would simply direct agency officials to use whatever discretion they have to loosen the ACA’s constraints and burdens on states, individuals and insurance companies, and the ACA offers only so much flexibility. Therein lies the rub.

The Obama administration was particularly aggressive in asserting the authority to grant waivers, defer burdens and delay implementation of various ACA provisions, even where the law did not authorize such acts. Put in the most charitable terms, the Obama administration took a particularly elastic view of what the executive branch could do under the law....

As [Nicholas] Bagley notes with regard to this EO, many of the Obama administration’s actions implementing the ACA will make it easier for the Trump administration to take equivalent actions of questionable legality. The lawfulness of executive action is often evaluated by reference to prior executive practice, so the Obama administration’s success in taking such steps (and the relative silence of the legal commentariat, Bagley excepted) will strengthen the Trump administration’s hand when it begins granting questionable waivers, suspends requirements under the guise of exercising enforcement discretion and opts to place a hold on unpopular provisions. And as the initial steps toward repeal-and-replace further destabilize insurance markets, this will only justify additional waivers and suspensions, all made in the name of minimizing disruption and enhancing administrability.
Nicholas Bagley, a law professor at the University of Michigan, warns about problems if Trump delays the individual mandate tax.
If the IRS “delays” the individual mandate, the insurance markets in many states could go into a tailspin. Rates for 2018 will skyrocket and some insurers could fold. In addition, delaying the mandate would preempt any debate in Congress about whether to keep the mandate in place during a transition period to a yet-to-be-disclosed replacement.
Josh Blackman comments about the instruction to the Secretary of HHS to grant waivers, defer, and grant exemptions for any provision of the ACA that places a "fiscal burden" on any state.
There is, of course one proviso: HHS can only act here “to the maximum permitted by law.” What is that extent? Under the precedents of the Obama administration, there are no meaningful bounds. Secretary Sebelius deemed it a hardship if anyone had difficulty affording insurance under the ACA, permitting a waiver of the individual mandate. (As Ezra Klein famously put it, “Obamacare itself is the hardship”). Trump’s order follows a similar pattern. If the Obamacare “tax” (thank you John Roberts) imposes a “burden” on individuals, the Secretary now has the authority to defer the mandate.

This discretion is not limited to states. Secretary Sebelius also permitted states to suspend enforcement of “minimum essential coverage,” and allow the sale of non-compliant policies, citing the unfairness of people whose plans would otherwise be cancelled. Thus, if “minimum essential coverage” impose a “fiscal burden on any state,” the Secretary can now suspend it. Using all of the precedents developed by the Obama administration, Trump can now take systematic steps to unravel Obamacare.
Blackman also points to this delicious irony.
On cue, ardent defenders of President Obama’s executive actions have now discovered the separation of powers:
I suspect that there will be many such delicious ironies in the future.

Byron York's analysis o
f Trump's first Monday in office is that he demonstrated how a president has the ability to change the conversation, something Trump really needed after a weekend spent talking about turnout numbers for the inauguration and the protests against his presidency.
There was dark speculation that the Trump White House had moved into an "alternative facts" era, lying with impunity while blocking the press's role as the representative of the public's right to know what its government is doing.

All that pretty much disappeared within an hour or two. The Trump White House pushed out word that the president would meet with business leaders in the morning, and with labor leaders in the afternoon, with a heavy focus on jobs. On trade, Trump signed an executive order pulling the United States out of the Trans-Pacific Partnership. He issued a freeze on the hiring of new federal workers. He re-instated the Mexico City policy. Then he met with a bi-partisan group of congressional leaders. Then a meeting with House Speaker Paul Ryan....

Trump's first day combined real substance with the imagery of Trump meeting with people in the Oval Office, in the Roosevelt Room, signing measures, discussing policy — in other words, the basic images of the presidency. Each act was covered breathlessly on television — We have new video just in from the White House! — reinforcing Trump's role.

The bottom line was that in the course of a few hours, Trump moved the political conversation far beyond the events of the weekend — so much so that critics who insisted on re-litigating the events of Friday, Saturday, and Sunday seemed behind the curve.
Hopefully, the Trump administration will learn from their mistakes and have more days like today and will better manipulate the power of the White House to change the subject of the media's conversation. Perhaps Trump can discover that he can dominate media coverage of what he is actually doing rather than what he's tweeting. But then, perhaps that is too much to hope for...

Maybe he does better in such staged and well-orchestrated events than he does when he's allowed to riff on his own as he did when he basically gave one of his stream-of-consciousness rally speeches when he visited the CIA this past weekend. He stood in front of the Memorial Wall for those who have died in the CIA and then started in on the equivalent of an oral tweetstorm on his favorite topics.
But Mr. Trump also couldn’t resist turning the event into an extended and self-centered riff about the size of his campaign rallies, the times he’s been on Time magazine’s cover and how the “dishonest” media misreported his inaugural crowds. He all but begged for the political approval of the career CIA employees by suggesting most there had voted for him.

Such defensiveness about his victory and media coverage makes Mr. Trump look small and insecure. It also undermines his words to the CIA employees by suggesting the visit was really about him, not their vital work. The White House is still staffing up, but was it too much to ask National Security Adviser Michael Flynn’s staff to write up five or 10 minutes of formal remarks that had something to do with the CIA?

Mr. Trump may think he’s succeeded by breaking the normal rules of politics and that he can keep doing it. But he’s now President, and Americans expect a level of seriousness and decorum that is consistent with the responsibility of the office. He should meet their high expectations, not live down to the media’s.
Then Trump spent time when he met with congressional leaders asserting that he should have won the popular vote.
Days after being sworn in, President Trump insisted to congressional leaders invited to a reception at the White House that he would have won the popular vote had it not been for millions of illegal votes, according to people familiar with the meeting.

Trump has repeatedly claimed, without evidence, that widespread voter fraud caused him to lose the popular vote to Hillary Clinton, even while he clinched the presidency with an electoral college victory.

Two people familiar with the meeting said Trump spent about 10 minutes at the start of the bipartisan gathering rehashing the campaign. He also told them that between 3 million and 5 million illegal votes caused him to lose the popular vote.
This guy just can't get over himself. I think of Ronald Reagan's attitude, “There is no limit to the amount of good you can do if you don't care who gets the credit.” Trump has the opposite attitude: "There is no limit to the amount you can do if you claim credit for things you have nothing to do with or didn't even happen.

The WSJ reports
on something that I hadn't seen elsewhere as the Obama Education Department slipped it by the public at the last minute.
In early January the department disclosed that it had discovered a “coding error” that incorrectly computed College Scorecard repayment rates—that is, the percentage of borrowers who haven’t defaulted and have repaid at least one dollar of their loan principal. The department says the error “led to the undercounting of some borrowers who had not reduced their loan balances by at least one dollar.”

The department played down the mistake, but the new average three-year repayment rate has declined by 20 percentage points to 46%. This is huge. It means that fewer than half of undergraduate borrowers at the average college are paying down their debt.
Hmmm, this administration certainly did have its problems in computer usage, didn't' they? The result is that loan forgiveness for borrowers could cost more than $108 billion.
The other scandal is that the Obama Administration used the inflated Scorecard repayment data as a pretext to single out for-profit colleges for punitive regulation. The punishment was tucked into a rule finalized in October allowing borrowers who claim their college defrauded them to discharge their debt. It requires for-profits in which 50% or fewer borrowers are paying down their principal to post the equivalent of a surgeon general’s warning in all promotional materials.

When proposing the regulation, the department claimed that its analysis of Scorecard data showed that a large number of for-profits have repayment rates below 50% while very few public or nonprofit schools do. The department said it would not be fair to “burden” public and nonprofit colleges with a regulation that would apply to so few. Yet based on the updated data, 60% of two-year public colleges and nearly all historically black institutions have repayment rates below 50%.

Marc Jerome, president of for-profit Monroe College in the Bronx, discovered the Scorecard rate inflation last August. In several emails to Education officials, he urged the department to hold off on finalizing the regulation. If the regulation were applied evenly, a large number of nonprofit and public institutions would fail to meet the standard. But then the justification for the department’s selective regulation of for-profits would vanish.

The department finalized the regulation in October anyway, perhaps anticipating a Hillary Clinton victory that would allow the repayment inflation game to keep going. Yet now it’s taking credit for discovering and fixing the Scorecard error that likely would have been uncovered by the new Trump Administration.

This combination of cynicism and incompetence is what made the Obama Administration’s regulatory machine so destructive. One of the biggest messes it leaves behind is the government takeover of student loans that is likely to saddle taxpayers with hundreds of billions in losses. The Trump Administration now has to begin the cleanup job.

Congress ought to use the Congressional Review Act to overturn the latest rule, while new Secretary Betsy DeVos will have to recruit a top-flight finance executive to do a top-to-bottom review of student-loan records for other goofs or deceptions. Then lay out the real facts to the American public as soon as possible.
Ed Morrissey writes,
Call it … bad math with a purpose. Had it just been a routine “coding error,” and without any malice, then Jerrome’s repeated entreaties pointing out the problem would have resulted in a correction and a new report. This looks more like a deliberate attempt to cook the books in order to blame student-loan defaults on poor career performance for those who matriculate from for-profit schools. Instead, we now know that long-term performance, as measured by student-loan defaults, looks about the same between the for-profit and not-for-profit education centers. That knowledge would have undercut the regulatory hostility toward the former for almost the entirety of the Obama administration, which is why the DoEd only revealed it on Barack Obama’s entry into retirement.

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There has been some discussion on the left that the Women's Marches on Saturday across the country could serve as the Democrats' version of the Tea Party movement. Perhaps this will be the start of a grassroots effort, united by their opposition to the President, that could mobilize for victories in 2018 just as the Tea Party movement did for Republicans in 2010. Jim Geraghty writes on this idea,
It now appears that as the Trump presidency dawns, angry liberals are building something akin to the Tea Party movement. It will look different, it will be geographically concentrated in different areas, and of course, it will get much more sympathetic media coverage. But it will be there, and it could be a big factor in 2018 midterms.

It’s also worth remembering that the Tea Party was ultimately a mixed bag for the Republican party. Yes, it brought them Mike Lee, Nikki Haley, Marco Rubio, Paul LePage, Trey Gowdy, Ron Johnson, etc., but it also brought Sharron Angle, Christine O’Donnell, Carl Paladino, and Richard Mourdock. An impassioned grassroots movement giveth, and an impassioned grassroots movement taketh away.
Dan McLaughlin adds in that the Democrats might want to be careful of what they're wishing for. First of all, there is the irony.
To start with, it’s worth remembering what Democrats thought, or at any rate said, until this week. First, they spent the past eight years calling the Tea Party a bunch of racist, unpatriotic terrorists — and now they want in on that! Second, they also spent the past eight years chortling about how self-defeating the Tea Party was for Republicans — and even if the outcomes in the House, the Senate and all the other states had been exactly the same, they’d still be saying the same thing today (even louder) if Hillary Clinton had won Pennsylvania, Wisconsin, and Michigan.
However, are Democrats ready for the disruptive forces that can be unleashed by such a populist forces. After all, as McLaughlin writes, The Democrats are "the same political party that gloried in using its superdelegates to cut off Bernie Sanders’ path to the nomination, and that takes great pride in its top-down organizing structure." But perhaps, they've learned their lessons. However, as the Republican establishment could tell the Democrats, the Tea Party movement also led to quite a few GOP incumbents losing out in primaries to Tea Party challengers. Some were quality candidates and some were extremely weak and led the Republicans to lose winnable seats with candidates like Christine O'Donnell in Connecticut and Sharron Angle in Nevada.
Tea Party challengers forcibly retired GOP veterans in the safest of deep-red states and districts, and they cost the party winnable elections in swing races (the Castle–O’Donnell primary being the most obvious example). Even if you think the movement has been on balance a boon to Republicans, the costs have been undeniable, and they fell disproportionately on the party’s efforts to control its own strategy.
As McLaughlin argues, if a Tea Party of the Left targeted the more moderate Democrats who come from red states such as Joe Manchin of West Virginia or Jon Tester of Montana, they might find themselves primarying themselves out of their most winnable candidates. They would do better to follow the model that Rahm Emanuel set for them in 2006 by running more moderate candidates in red districts and states. Of course, such strategizing for 2018 based on wishful thinking of how to mobilize the activism we saw this weekend is futile now, but it's still fun.

Jim Talent has an interesting proposal about the presidential pardon power concerning last-minute pardons and commutations.
There is a simple remedy available. Congress should consider a constitutional amendment making clemency decisions during presidential transitions provisional only, subject to reversal by the new president within 60 days after he assumes office, and inoperative, unless confirmed by the new president, until the 60 days had passed. (Special provision could be made for death-penalty cases.)

I see no reason why the debate on such an amendment should be partisan. Presidents Clinton and Obama may have opened Pandora’s box, but there is zero reason to believe that future presidents of both parties won’t take advantage of the precedent they have set. It would be a sign of health — a small but important step towards constitutional propriety — if Congress and the states acted on a bipartisan basis to prevent these abuses. By all means, presidents should have the power to extend mercy when they think it’s justified, but they also should be required to show some principle, and some courage, in how they do it.
Given that presidents have four or eight years for issuing the pardons and reprieves they want to do, I like the idea of channeling such actions to before the election.

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The MSM reporters in the White House pool are upset that Sean Spicer didn't call on the usual suspects in today's press briefing.
He first called on the New York Post. Then, the Christian Broadcasting Network. That was followed by Univision and Fox Business.

Spicer then took a question from Urban Radio Network, and then finally the Associated Press, which up until now has usually gotten the first question.

Fox News was next, followed by ABC.

Under Obama, the AP and Reuters had gotten the first shot at questions each day, followed by networks like NBC, ABC and CBS.

The unprecedented decision ruffled the feathers of some. NBC'S Kelly O'Donnell said Spicer was skipping over major news outlets that cover the White House all day, every day.

She tweeted later that the mainstream serves "the most Americans with expertise, depth of commitment to fair coverage."
They'll have to get used to there being a new sheriff in town. I like this idea that Spicer announced to allow four journalists from outside the DC region to Skype in to the press briefings. I think that's a neat idea.

Ah, the irony.
The limousine that was set on fire during the anti-Trump anarchist protest in downtown Washington on Inauguration Day is owned by a Muslim immigrant who says the damage could cost his company $70,000.

Muhammad Ashraf, the owner of Nationwide Chauffeur Services, spoke with the Washington Examiner's sister publication, Red Alert Politics, about what happened:
In an exclusive interview with Red Alert Politics, Ashraf said he wasn’t a supporter of Donald Trump during his campaign, but Friday’s protests were completely counter-productive.
“I have a different point of view,” Ashraf told Red Alert. “I did not agree with many of the things he said, but that still does not give me the right to go and affect someone’s livelihood.”
Ashraf noted that the Women’s March on Washington and in other cities around the country was a model for how to peacefully protest.
“I really don’t think we need to take this [violent] route.”
Ashraf’s employee, Luis Villarroel, 58, was dropping a client off at their destination when things turned ugly. Protesters smashed doors and windows in the vicinity, but then turned their attention to Villarroel and the limo. People began pounding on the car and started throwing stones and bricks in his direction. The driver ended up going to the hospital for cuts on his hands and arms from glass being shattered by thrown projectiles.