Tuesday, January 03, 2017

Cruising the Web

There are some who are still holding out hope that President Obama could recess appoint Merrick Garland to the Supreme Court today in the few minutes between when the Senate gavels out the 114th Congress and then gavels in the 115th Congress.
In those few moments the Senate will go into what’s known as an “intersession recess,” creating one golden moment when the president could test his recess-appointment powers by sending Judge Garland to the high court.
A smattering of activists has asked him to give it a try, but Mr. Obama has given no indication that he’s thinking about it.
Jonathan H. Adler explains why Obama won't do this. He's already tried to play games on recess appointments and the Supreme Court slapped him down.
The real problem with trying to make such an intersession recess appointment is that the Supreme Court has held that such an appointment would be unconstitutional in Noel Canning v. NLRB. Dayen and Kilgore purport to address Noel Canning — claiming it does not apply since the case concerned only intrasession recess appointments — but they ignore what Justice Breyer’s opinion for the court actually says. As Seth Barrett Tillman points out, Noel Canning clearly precludes such an appointment. From Justice Breyer’s opinion:
we conclude that the phrase “the recess” applies to both intra-session and inter-session recesses. If a Senate recess is so short [i.e., less than 3 days] that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, § 5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

If a three-day recess is too short, a three-second recess would certainly be as well and, contrary to Dayen’s and Kilgore’s suggestion, Justice Breyer’s opinion makes no distinction between intrasession and intersession recesses. All told, every justice on the court embraced an opinion rejecting the idea that such an intersession recess appointment would be constitutional.
I love the irony that Obama's overreach on recess-appointing his candidates to the NLRB when he determined all on his own that the Senate was in recess resulted in a unanimous ruling against him, including Sotomayor and Kagan, and that now blocks this too-tricky-by-half plot to finally get Merrick Garland onto the Supreme Court.

And the Republicans could come up with their own quirky legislative maneuver to obviate Obama's recess appointment.
Dayen rightly notes that it would be difficult to quickly arrange a lawsuit to challenge the constitutionality of Garland’s appointment (though such suits have been brought before). Yet such a suit would not be required. All that the Senate would need to do is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House anda president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.
Adler adds in another reason Obama won't do this.
I should have added that another reason this won’t happen is that recess-appointing Garland to the Supreme Court would create a vacancy on the U.S. Court of Appeals for the D.C. Circuit that could then be filled by President Trump.

Megan McArdle comments on this whole idea which she calls a "festival of wrongness.
Even if these moves could work, they wouldn’t work. The people proposing these ideas seem to imagine that they are making a movie about politics, rather than actually doing politics. The hero’s quest is to get a liberal supreme court, but they are stymied until -- third act miracle! A daring procedural caper! The gavel slams down on Merrick Garland’s “Aye” vote … cut to him taking his Supreme Court seat … fade to black as the audience cheers. In the real world, of course, there’s a sequel, called “Tomorrow.” And what do the Republicans do then? The answer, alas, is not “stand around shaking their fists at fate, while the moderates among them offer a handshake across the aisle and a rueful ‘You got us this time, guys.’”

If Democrats tried this sort of thing, there would be national outrage -- mostly from Republicans, but also from some moderates. When procedural hacks work, it’s because they’re too boring for readers to understand, or care, and therefore take place well outside of the media spotlight. This, by contrast, is pretty easy to understand, and what most voters will understand is that Democrats are trying to do an end run around the results of a legitimate election. Republicans could use that outrage to undo whatever it was Democrats thought they were accomplishing -- by, for example, increasing the number of seats on the Supreme Court. (Democrats may recall this maneuver; Franklin Roosevelt tried it in the 1930s).
As she goes on to write, both sides have used what she calls "procedural hacks." They can argue over who started it, but the end result is that they have both weakened our system.
Over the last decade, we’ve spent more and more time on these sorts of procedural hacks. Filibusters to prevent judicial nominations -- and parliamentary maneuvers to weaken the filibuster. Debt ceiling brinkmanship -- and whether Obama could mint trillion-dollar platinum coins to get around it. We have become less and less interested in either policy or politics, and more interested in finding some loophole in the rules that will allow one party or the other to impose its will on the country without the messy business of gathering votes and building public support. It started with the courts, but it certainly has not ended there.

Each procedural hack slightly undermines the legitimacy of the system as a whole, and makes the next hack more likely, as parties give up on the pretense that winning an election confers the right to govern, and justify their incremental power grabs by whatever the other party did last.
Don't look for this depressing chain of events to stop anytime soon.

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Trump tweeted at Chicago's Mayor Rahm Emanuel that if he can't bring down Chicago's murder rate then he should ask for federal help. Chicago really has faced a terrible record in murders with a massive increase.
2016 was one of the most violent years in Chicago history with the most homicides in two decades – more than New York and Los Angeles combined.

The nation's third largest city also saw 1,100 more shooting incidents last year than it did in 2015, according to data released Sunday by the Chicago Police Department.
Emanuel has shown himself totally unable to deal with the city's violence. But I wonder what the federal government can do. Is he talking about sending in the National Government? Does he plan to interfere with the Illinois legal system to make sure that those who are arrested are convicted and stay in prison? Does he think that there is a role for the federal government to strengthen a police department that faced major protests after the video of the fatal shooting of the black 17-year-old Laquan McDonald who was shot 16 times by a white police officer? Have police become more cautious about taking action against criminals since then and is there something the federal government can do about it?
But critics said they have no doubt that officers have become far more reluctant to do their jobs since the McDonald video was released and the officer who killed the teen was charged with murder.

'It's almost like a pull back so they (gangs) can kill each other sort of thing,' said the Rev. Marshall Hatch, a prominent minister in one of Chicago's most dangerous neighborhoods on the West Side.

[Chicago Police Superintendant] Johnson acknowledged in a recent interview with that officers have become more cautious - in part out of fear of becoming the next 'viral video'.

He also said a state law that took effect last January requiring officers to fill out lengthy contact cards when they stop someone has resulted in fewer stops, because the cards require more paperwork for officers and the cards are 'scrutinized' by federal judges.
He said those concerns are not lost on criminals.

'Criminals watch TV, pay attention to the media,' he said. 'They see an opportunity to commit nefarious activity.
Clearly, something must be done, but I'd like to hear more about what Trump thinks the federal government can do beyond throwing money at the city.

Heather MacDonald has one recommendation. She points to the violent mall brawls over Christmas weekend and notes that most of those involved are black teenagers and makes a connection to the Obama administration's pressuring schools to limit the disciplining of black students.
he media have assiduously ignored this fact, of course, as they have for previous violent flash mob episodes. That disproportion has significance for the next administration’s school-discipline policies, however. If Donald Trump wants to make schools safe again, he must rescind the Obama administration’s diktats regarding classroom discipline, which are based on a fantasy version of reality that is having serious real-world consequences.

The Obama Justice and Education Departments have strong-armed schools across the country to all but eliminate the suspension and expulsion of insubordinate students. The reason? Because black students are disciplined at higher rates than whites. According to Washington bureaucrats, such disproportionate suspensions can mean only one thing: teachers and administrators are racist. The Obama administration rejects the proposition that black students are more likely to assault teachers or fight with other students in class. The so-called “school to prison” pipeline is a function of bias, not of behavior, they say.

This week’s mall violence, which injured several police and security officers, is just the latest piece of evidence for how counterfactual that credo is. A routine complaint in police-community meetings in minority areas is that large groups of teens are fighting on corners. Residents of the South Bronx’s 41st Precinct complained repeatedly to the precinct commander in a June 2015 meeting about such street disorder. “There’s too much fighting,” one woman said. “There was more than 100 kids the other day; they beat on a girl about 14 years old.” In April 2016, a 17-year-old girl in Coney Island, Brooklyn, Ta’Jae Warner, tried to protect her brother from a group of girls gathered outside her apartment building who were threatening to kill him; one of the group knocked her unconscious. She died four days later. At a meeting in the 23rd Precinct in East Harlem in 2015, residents asked why the police hadn’t stopped a recent stampede of youth down Third Avenue. In April 2012, a group of teens stomped a gang rival to death in a Bronx housing project.

The idea that such street behavior does not have a classroom counterpart is ludicrous. Black males between the ages of 14 and 17 commit homicide at ten times the rate of white and Hispanic males of the same age. The lack of socialization that produces such a vast disparity in murder rates, as well as less lethal street violence, inevitably will show up in classroom behavior. Teens who react to a perceived insult on social media by trying to shoot the offender are not likely to restrain themselves in the classroom if they feel “disrespected” by a teacher or fellow students. Interviews with teachers confirm the proposition that children from communities with high rates of family breakdown bring vast amounts of disruptive anger to school, especially girls. It is no surprise that several of the Christmas riots began with fights between girls. School officials in urban areas across the country set up security corridors manned by police officers at school dismissal times to avoid gang shootings. And yet, the Obama administration would have us believe that in the classroom, black students are no more likely to disrupt order than white students. Equally preposterous is the claim that teachers and administrators are bigots. There is no more liberal a profession than teaching; education schools are one long indoctrination in white-privilege theory. And yet when these social-justice warriors get in the classroom, according to the Obama civil rights lawyers, they start wielding invidious double standards in discipline.
It wouldn't cut down Chicago's crime rate right away, but MacDonald's recommendation could do a whole lot for discipline in schools and thus send an important message to such students as well as allowing other students to learn in a nonviolent environment.
The Trump administration must tear up every guidance and mandate in the Justice and Education Departments that penalize school districts for disproportionate rates of school discipline. Absent clear proof of teacher or administrator racism, Washington should let schools correct student behavioral problems as they see fit. Students in classrooms where disruption is common are far less likely to learn; that is the civil rights problem that should get activists’ attention.

The WSJ writes on the same problems.
The American Civil Liberties Union has also targeted Chicago police, and the department in August 2015 agreed to track investigatory stops and pat-downs to avert a lawsuit. Officers must submit detailed two-page reports for each stop, which a former federal judge and ACLU review for bias.

Former Chicago Police Superintendent Garry McCarthy told CBS’s “60 Minutes” this weekend that the increase in paperwork has taken time away from proactive policing and made officers more reluctant to stop suspicious individuals. According to CBS, the number of stops declined from 49,257 in August 2015 to 8,859 a year later while arrests fell by a third to 6,900. While current Superintendent Eddie Johnson denied that police were retreating, he noted at a press conference this weekend that anger at police has “emboldened” criminals. He also blamed lax enforcement of Chicago’s strict antigun laws.

All of this suggests that the demonization of cops has contributed to Chicago’s surge of violence, with the principal victims being young minorities, many of them innocent bystanders. Perhaps the President could include an elegy for these black lives in his farewell.

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John Merline posts
one chart to pop the balloon of the administration's bragging about how great the employment picture has been this year. Merline points out that we're missing the context for the good jobs numbers and posts.
Take that 14.4 million job growth number. That sounds impressive doesn't it? But that job growth is stretched over almost six full years, during which time the working age population grew by 15.8 million.

In that respect, we've lost ground on jobs under Obama.

What's more, that 14.4 million increase in jobs is measured against when the job market hit rock bottom in February 2010. If you compare the current number of jobs to the previous jobs peak in January 2008 -- which is how job growth is normally measured -- the number of private-sector jobs has increased just 5.6 million.

During that time, the population grew by more than 20 million. In other words, there's a jobs gap of more than 14 million.

What about "labor force participation"? This is a measure of how many people are working or activity looking for a job. And while it's recently ticked upward, as the nearby chart shows it is still way below where it was when the jobs recession ended in early 2010.

Want more context? Compare these numbers to what happened during the Reagan recovery, when the job market exploded after bottoming out in December 1982. While the population grew 12.4 million in the following six years, the number of jobs shot up by 18.4 million.

As a result, the labor force participation rate -- which started out lower under Reagan than Obama -- zoomed upward as strong growth pulled people back into the job market.

Look to the Republicans in Congress to limit federal regulations.
The House is expected to take up two bills — the Midnight Rules Act and the REINS Act (which stands for Regulations from the Executive in Need of Scrutiny) — that passed on largely party-line votes in the 114th, 113th and 112th congressional sessions, but died in the Senate. The REINS Act would require that before any new major regulation could take effect, the House and Senate would have to pass a resolution of approval. The Midnight Rules Act would let Congress invalidate rules in bulk that passed in the final year of a presidential term....

Regulations are adopted by the executive branch to implement laws passed by Congress and signed by the president. Congress already has the power to repeal laws by passing a new bill and getting the president to sign it. And under the 1996 Congressional Review Act, Congress can pass a resolution of disapproval to block a rule if it acts within 60 days of notification from an agency.

The new legislation would further expand congressional power by preventing an administration from implementing rules without another vote. Under the REINS act, a proposed regulation would be deemed rejected if Congress was in session for 70 days and took no action. The bill allows for a major rule to take effect for a single 90-day period if the president determined it was necessary because of an imminent threat to health or safety or other emergency.
It's about time that the administrative state got reined in. And it is admirable that the Republicans in Congress are as willing to rein in a Republican administration as they were to do so for a Democratic one.

How cozy. Some of the journalists who were exposed through the WikiLeaks publication of DNC and John Podesta's emails to have been sucking up to the Clinton campaign will now be covering the Trump White House. There is just no shame.

Since choosing a candidate based on her chromosomes, why not start daydreaming about other politicians gifted with the correct chromosomes who could be president? The Hill has a list of nine women who could be elected president.

Gee, who would have predicted this? Well, except for just about every economist? Here is a headline from the Boston Globe: "As minimum wage rises, some employers cut back." The push for an increased minimum wage has been sweeping the country. And, sure it's nice for those who will get the increased wages. But someone has got to pay that money and employers aren't in business for charity.
For some small business owners in Massachusetts, however, the effect of the wage increases has been significant.

The owner of two family entertainment centers in Massachusetts said she has reduced her staff to 20 people, down from 50, over the past two years, to counteract rising payroll costs.

The employer, who asked not to be named because she feared repercussions from workers’ advocates, said she and her husband have cut their hours of operation, replaced their DJ with canned music, and are working more themselves to stay afloat. They have also stopped hiring teenagers in favor of more experienced workers.

At Winthrop Marketplace, Marc Wallerce estimates that his payroll will have risen $100,000 over the course of the three wage increases, which includes insurance and workers’ compensation costs tied to salaries. His older workers all make well over $11 an hour, so the raises have mostly been going to the students he employs at the grocery store....

On Sundays and holidays, the pinch is even tighter, when retailers in Massachusetts have to pay their workers time-and-a-half.

That means 16-year-olds will now be making at least $16.50 an hour on Sundays. Massachusetts is one of only two states with this Sunday requirement, and one of 11 that don’t have lower wages for teenagers, according to the Retailers Association of Massachusetts.

The increase to $11 an hour is particularly difficult to absorb for business owners outside the Interstate 495 loop around Boston, where the economy is not as strong, said Bill Vernon, Massachusetts director of the National Federation of Independent Business. And an increase to $15 an hour could be disastrous.

“I just think $15 is just something the Massachusetts economy, even inside 495, can’t handle,” he said. “It will help some people, but it will cost jobs. . . . And it’s the young, unskilled workers who are going to get hurt by this.”
All of this is so very predictable.

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House Republicans are making a foolhardy mistake.
House Republicans voted 119-74 Monday night in favor of a proposal that would gut Congress' outside ethics watchdog and remove its independence.

Republican Virginia Rep. Bob Goodlatte's proposal would place the independent Office of Congressional Ethics -- an initial watchdog for House members but without power to punish members -- under oversight of those very lawmakers.

House Speaker Paul Ryan and other top GOP leaders opposed the change to ethics rules, but rank-and-file members disregarded their views and voted to approve the new structure for ethics reviews going forward, according to a senior House GOP leadership source familiar with the closed door discussion.

The proposal would bar the panel from reviewing any violation of criminal law by members of Congress, requiring that it turn over any complaint to the House Ethics Committee or refer the matter to an appropriate federal law enforcement agency. The House Ethics Committee would also have the power to stop an investigation at any point and bars the ethics office from making any public statements about any matters or hiring any communications staff.

And the ethics office would no longer be able to accept or investigate any anonymous reports of alleged wrongdoing by members of Congress.
Part of the problem is that outside groups make accusations on a partisan basis which the office then has to probe. But it seems that there would be a way to limit such partisan investigations without neutering the entire panel. Don't throw the baby out with the dirty bath water.

Well, this must blow people's minds. After all, we've been told that the discussion is over and every scientist agrees.
Don’t look now, but maybe a scientific consensus exists concerning global warming after all. Only 36 percent of geoscientists and engineers believe that humans are creating a global warming crisis, according to a survey reported in the peer-reviewed Organization Studies. By contrast, a strong majority of the 1,077 respondents believe that nature is the primary cause of recent global warming and/or that future global warming will not be a very serious problem.

The survey results show geoscientists (also known as earth scientists) and engineers hold similar views as meteorologists. Two recent surveys of meteorologists (summarized here and here) revealed similar skepticism of alarmist global warming claims.

According to the newly published survey of geoscientists and engineers, merely 36 percent of respondents fit the “Comply with Kyoto” model. The scientists in this group “express the strong belief that climate change is happening, that it is not a normal cycle of nature, and humans are the main or central cause.”

The authors of the survey report, however, note that the overwhelming majority of scientists fall within four other models, each of which is skeptical of alarmist global warming claims.
And contrary to what you might think, those conducting the survey are not skeptics on man-caused climate change. They're horrified by the results of their own survey.
One interesting aspect of this new survey is the unmistakably alarmist bent of the survey takers. They frequently use terms such as “denier” to describe scientists who are skeptical of an asserted global warming crisis, and they refer to skeptical scientists as “speaking against climate science” rather than “speaking against asserted climate projections.” Accordingly, alarmists will have a hard time arguing the survey is biased or somehow connected to the ‘vast right-wing climate denial machine.’

Another interesting aspect of this new survey is that it reports on the beliefs of scientists themselves rather than bureaucrats who often publish alarmist statements without polling their member scientists. We now have meteorologists, geoscientists and engineers all reporting that they are skeptics of an asserted global warming crisis, yet the bureaucrats of these organizations frequently suck up to the media and suck up to government grant providers by trying to tell us the opposite of what their scientist members actually believe.

People who look behind the self-serving statements by global warming alarmists about an alleged “consensus” have always known that no such alarmist consensus exists among scientists. Now that we have access to hard surveys of scientists themselves, it is becoming clear that not only do many scientists dispute the asserted global warming crisis, but these skeptical scientists may indeed form a scientific consensus.

This past weekend was the centennial of the murder of Rasputin. I still remember making an oral report on Rasputin in sixth grade and the class seemed spellbound by the story - as well they should, since it's such a fascinating and bizarre tale. I think it was the fun of telling that story to my classmates that set me on the path of becoming a history teacher. Those are some of my favorite moments of teaching when I can see students get excited about history as we explore together some key moment in history.