Tuesday, January 31, 2017

Cruising the Web

The crafting and implementation of the travel ban order provides a case study in how not to approach public policy. What is amazing is how the administration bypassed even those people that are actually Trump's choices. I can understand that they didn't want to give the holdovers from the Obama administration involved in the drafting of the order. They have good reason not to trust those officials.

James Jay Carafano, a vice president of the conservative Heritage Foundation and a member of Mr. Trump’s transition team, said that little of that work was shared with career officials at the Homeland Security Department, the State Department or other agencies.

There was “a firewall between the old administration and the incoming one,” Mr. Carafano said.

One reason, he said, is that when the Trump transition team asked pointed questions suggesting new policies to the career officials, those questions were swiftly leaked to the news media, generating negative stories. So the Trump team began to limit the information they discussed with officials from the previous administration.
But what about Trump's own cabinet members?
Gen. John F. Kelly, the secretary of homeland security, had dialed in from a Coast Guard plane as he headed back to Washington from Miami. Along with other top officials, he needed guidance from the White House, which had not asked his department for a legal review of the order.

Halfway into the briefing, someone on the call looked up at a television in his office. “The president is signing the executive order that we’re discussing,” the official said, stunned....

Jim Mattis, the new secretary of defense, did not see a final version of the order until Friday morning, only hours before Mr. Trump arrived to sign it at the Pentagon.

Mr. Mattis, according to administration officials familiar with the deliberations, was not consulted by the White House during the preparation of the order and was not given an opportunity to provide input while the order was being drafted. Last summer, Mr. Mattis sharply criticized Mr. Trump’s proposed ban on Muslim immigration as a move that was “causing us great damage right now, and it’s sending shock waves through the international system.”
It sounds rather like they didn't consult General Mattis because they knew that he didn't like the idea but why ignore General Kelly, the head of Homeland Security who will be responsible for carrying out the order? Is that the sort of choice Trump would have made in his own businesses?

Allahpundit comments,
Two thumbs up for the crack Trump political team in cutting the single most respected member of their natsec team out of the policymaking process. I wonder how many more Bannon-style power plays like that it’ll take before Mattis decides he has better things to do with the rest of his life than serve as a front man for actions on which he has no input.
Just what I was wondering about both Mattis and Kelly. Now Mattis is working on submitting a list of those Iraqis who worked with us during the war so that they can get waivers from the executive order. You know, something that should have been done in the first place.

The result of this administrative incompetence was the chaos and misunderstandings and contradictory interpretations of the order that we saw this past weekend. Trump defended the sudden announcement and implementation of the order by saying that the "bad dudes" would have rushed to travel before the order went into effect. But it seems that that could have been avoided if they announced that the order would take effect in a week or so and then refused to issue new visas in the interim.

David French comments,
Let’s put this as plainly as possible. The hope that Trump’s best cabinet picks would have more influence than Steve Bannon just took a severe blow. His elevation to the principals committee of the National Security Council is also deeply troubling. The man who proudly announced that Breitbart was the “platform of the alt-right” shouldn’t even be working at the White House, much less potentially having a greater say on key homeland security and defense issues than Mattis or Kelly.

Moreover, given the incompetence of the rollout was inexcusable. The chaos of the weekend was mostly avoidable, and the indignities visited on green card holders and others who should be gaining admission to the U.S. even under Trump’s order were entirely unnecessary. Even people who found most of the order reasonable were shocked at the obvious confusion. Governing isn’t just about ideas. Implementation matters, and nothing about the last 72 hours has given anyone any assurance that the truly hard work will be done well.

During the campaign, Trump said he’d surround himself “only with the best and most serious people.” Show us, don’t tell us. If Steve Bannon is that close to the inner circle on decisions this crucial, then Trump is failing on a key promise.

And now the Acting Attorney General Sally Yates who is a holdover from the Obama administration since the Democrats have been blocking a vote on Jeff Sessions, has ordered the DOJ not to defend the executive order suspending immigration from seven Muslim majority countries because she doesn't think it's legal. John Yoo writes,
I couldn’t think of a more fitting capstone to the Obama record on Justice than its showboating on the immigration order. The legal arguments weigh strongly in favor of the administration — even though I find the policy misguided — and the Justice Department has a legal obligation to defend it. It can only refuse if there are no reasonable grounds on which to defend or the Justice Department has come to the conclusion that the law is unconstitutional, which it could only do it if disregarded existing statutes and case law. Once again the Obama Justice Department has put its left-wing politics before its legal duties.

On the other hand, this is meaningless showboating. Attorney General Sessions will be confirmed soon, and on day one he will direct DOJ attorneys to defend the order. But I couldn’t think of a more fitting end to the Obama Justice Department if President Trump were to call the Sally Yates, and say: “you’re fired.”
If you want to discount John Yoo because of his time working for the Bush administration during the war in Iraq, how about Jonathan Adler, a libertarian who isn't a fan of Trump?
First, the statement [by Yates] seems to indicate that the executive order was reviewed by the Justice Department’s Office of Legal Counsel, which apparently concluded that the executive order was lawful. Second, Yates does not claim that she cannot defend the executive order because it is unconstitutional or because the Justice Department would be unable to offer good-faith arguments in defense of its legality. To the contrary, Yates claims she is ordering the Justice Department not to defend the executive order because it is not “wise or just.” This is quite significant. I am not aware of any instance in which the Justice Department has refused to defend a presumptively lawful executive action on this basis.
Adler recommends that Yates should have resigned if she didn't want to defend the order, but she can't just decide not to defend a law because she just doesn't like it. If she can't claim that the order is illegal or unconstitutional, she just needs to keep quiet.

UPDATE: Well, that was quick.
President Donald Trump, on just his 10th day in office, fired the acting attorney general for refusing to defend his contentious refugee order. Trump said Yates, a 27-year veteran of the department with respect across the aisle, had “betrayed” the Justice Department, even as top Democrats lodged howls of protest. - See more at: h
Well, if a holdover from the last administration refuses to do her job simply out of her personal, not her legal opinion, then what do you expect? It actually feels a bit orchestrated. She got her grandstanding move and the expected firing. She can take that moment into her search for a new job. Somewhere there will be a liberal legal firm that will prize that ability to politicize her job. And the Democrats in the Senate will have a new talking point to slow down the inevitable confirmation of Jeff Sessions to Attorney General so that Trump will continue to have a headless, recalcitrant DOJ set to sabotage his actions.

National Review has an analogy that might resonate with liberals about why Yates had to go.
Like most Democrats, Yates objects to the president’s executive order. Fair enough. But she is not a political operative, she was a Justice Department official — the highest such official. If her opposition to the president’s policy was as deeply held as she says, her choice was clear: enforce the president’s policy or quit.

Instead, she chose insubordination: Knowing she would be out the moment Senator Sessions is confirmed, she announced on Monday night that the Justice Department would not enforce the president’s order. She did not issue this statement on the grounds that the order is illegal. She declined to take a definitive position on that question. She rested her decision, rather, on her disagreement with the justice of the order. Now, she’ll be a left-wing hero, influential beyond her heretofore status as a nameless bureaucrat. But she had to go.

To make an analogy, there are many federal judges who oppose abortion. They apply Roe v. Wade even though they disagree with it intensely, because their duty is to obey superior courts. As every official in the Justice Department knows, if one disagrees with the law one is called upon to apply, or the policy one is bound to enforce, one is free to resign. Staying on while undermining government policy is not an act of courage. It is an act of sabotage.

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his week we're covering the unit on the bureaucracy in my government classes. For Wednesday they're reading an article about how bureaucrats can sabotage the goals for their agency or department heads and how basically powerless Congress and the president are to stop prevent or even stop such sabotage. I've been assigning that article for 15 years now, but this year might be the first when kids will be able to come up with real-world examples from current events.

When we discuss the overreach of the administrative state and the tremendous growth of regulations, perhaps they'll understand Trump's executive order that Trump signed yesterday. The WSJ comments,
The Trump Administration is already a jumble of economic contradictions, but the “great” side of the ledger got an important new entry on Monday. President Trump signed an executive order adopting a “two-for-one” regulatory budget that will help accelerate growth and innovation.

The Obama years were a boom era for rule-making, but the truth is that obsolete and onerous rules have been accumulating for decades. In a working paper for George Mason’s Mercatus Center, Bentley Coffey,Patrick McLaughlin and Pietro Peretto estimate that the economy would be about 25% larger if the level of U.S. regulation had stayed constant since 1980. That’s now more than $4 trillion a year, or $13,000 per person.

The Trump order aims to prevent such waste by requiring the agencies to repeal two old rules for every new one they publish. This is in some sense a gimmick, since some regulations are far more significant, costly or distorting of investment choices than others. But the text of the order suggests that for every dollar of new cost imposed on the private economy, each agency will have to find two dollars of burden to relieve.

Democrats are freaking out about poisonous milk and killer toys, though many civilized countries use such budgets to manage the regulatory state and stay competitive. Canada requires every rule that creates another hour of paperwork for business compliance to be offset one for one. The United Kingdom and Australia have harder versions that require the costs of new rules to be offset by deregulation of comparable net value.

The permanent bureaucracy lives to justify its own existence, regardless of which party holds the White House, and rules inevitably beget more rules. Mr. Trump’s order starts to change the institutional incentives.

Under a two-for-one policy, each individual department will need to scrutinize its own books in search of offsets and rules needing modernization, which will make deregulation as high a priority as rule-making. The Environmental Protection Agency can’t poach savings uncovered at, say, the Fish and Wildlife Service. This could lead to more realistic cost-benefit tests, focus the bureaucracy on trade-offs and strengthen regulatory accountability.

Mr. Trump often talked about overregulation in 2016 and the issue may have been decisive in winning over many skeptical Republicans. Leaders of businesses large and small have been howling for relief for years, to no avail from the Obama Administration, or for that matter the George W. Bush Administration.

One key appointment to watch will be Mr. Trump’s choice to run the White House Office of Information and Regulatory Affairs (OIRA), who will be crucial to ensuring that the rollback will work in practice. The White House has failed to appoint a regulatory task force to supervise regulation until the OIRA job is filled, and this means that some agencies will now try to expand their writ while no one is watching. Democrats will try to delay approving a nominee for as long as possible.
This order won't get the wall-to-wall news coverage that his other orders have received, but this order might, eventually, have more long-term consequences for our government and economy. And the REpublicans in Congress can do their part to roll back the expansion of the regulatory state.
Meanwhile, the House this week will begin the job of repealing some of President Obama’s worst regulations. Republicans plan to rescind Mr. Obama’s midnight rules under the Congressional Review Act (CRA) that gives Congress an up-or-down vote on new rules. The House and Senate will vote on joint disapproval resolutions, which need only a majority before they are sent to the President.

On the chopping block is one EPA regulation related to streams that is estimated to threaten up to one-third of the remaining jobs in the coal industry. Another target is a Bureau of Land Management rule designed to undermine oil and gas fracking on federal land. A third is a Securities and Exchange Commission rule that forces U.S. companies to report payments to foreign governments, which can mean disclosing proprietary information that competitors can use against them.

The CRA is a exceptionally powerful reform tool, as our Kimberley Strassel reported last week. Amid the rush to pump out ever more rules, the Obama Administration may have failed to comply with many CRA mandates. The more the Trump Administration works with Congress to codify reform, the more durable the economic progress will be.

The deregulation project that began with Jimmy Carter and gained speed under Ronald Reagan became the bedrock of the 1980s economic boom, but the administrative state gradually reverted to its old habits. If Mr. Trump can break up the Washington central planning that is again misallocating resources, the resulting job creation and new investment would be a great legacy.

Yes, lying to the public is bad and the Trump people need to stop it. But let's not forget other lies that didn't get the MSM as excited as they have been since Trump took office. David Harsanyi argues for holding "all politicians accountable for lying, not just the ones we dislike."
This is a long way of saying: stop acting like Sean Spicer is the first White House press secretary to shamelessly tell untruths.

Just yesterday, as an example, Sen. Bernie Sanders (most Democrats use the same rhetoric) were telling voters that Republicans who want to cut government funding for the abortion provider Planned Parenthood are seeking to “deny” 2.5 million women “access” to clinics. This is a lie on a number of levels. It is meant to misinform people for political gain. This isn’t a debate about semantics or a dollar’s fungibility, it is wholly untrue. This goes on all the time on all kinds of issues.

False equivalence? So far, yes. The Trump administration has barely gotten started, after all. In 2009, when then-president Barack Obama repeatedly said, “If you like your health care plan, you can keep it,” his lie was no less consequential than “Our crowd was bigger.” Worse, actually, because it was a pre-fabricated line delivered in an effort to fool people into supporting legislation that would significantly change the lives of tens of millions of Americans — whether they approved of the legislation or not.

There was simply no way Obamacare’s regulatory oversight and mandates would possibly have allowed all Americans to keep their plans. None. Everyone knew this, yet no major newspaper or news network, as far as I can tell, called it a “lie,” “falsehood,” “untruth,” or even a “fib” at the time. Certainly not the The New York Times. There are probably a couple of reasons why. First, conceptually, it’s the kind of lie we’re used to hearing in political discourse all the time. Second, most journalists covering the president wanted ACA to pass. Only later, when events had caught up to the president, did anyone acknowledge it was a lie.
He also links to a tweet from Sean Davis reminding us about this headline from the NYT about Senator Richard Blumenthal when he was running for the Senate who lied about serving in Vietnam.
Candidate’s Words on Vietnam Service Differ From History
Hmmm. Isn't that the definition of a lie?

The Obama administration even admitted how they lied about the Iran nuclear deal. Surely, that was a worse lie perpetrated on the American people than lies about the crowds watching the inauguration. Yes, the Trump folks shouldn't be excused from their tendencies to outright lie, but let's hold both sides to a high standard.
None of this excuses the Trump administration’s mendacity (although getting sucked into hysterics every time the man says something ridiculous seems like a waste of time.) In the first days of Trump’s presidency, the White House press office has been turned into The Department of Alternative Facts because Hillary had a larger overall vote total (which is irrelevant) and Obama’s had a bigger inaugural crowd (same). All of this speaks to president’s personal insecurities.

Whatever the case, holding those in power accountable is a big improvement over the alternative. The problem is, the abdication of that duty for the past eight years has created an environment in which half the country doesn’t trust you. “Now more than ever” we need the press, they say. We needed it then, as well.

Some Trump critics call this kind of argument “whataboutism,” because they’d like to avoid talking about their own hypocrisy and bias. We can’t reset history every time it’s convenient. We can, however, do our best to call out both sides for lying when they do it.

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Rich Lowry refutes the baseless attacks demonizing Betsy DeVos.
Her nomination has elicited a motley collection of charges running the gamut from the silly to the serious, if wholly misleading:

She’s wealthy. Well, yes, most philanthropists are.

She once spoke of wanting to “continue to advance God’s kingdom.” Her critics might find this less threatening if they had more than a passing familiarity with how Christians talk and what they believe (every Christian wants to advance God’s kingdom).

She doesn’t necessarily care about punishing sexual assault. This is absurd innuendo built on the $10,000 in donations that she and her husband gave to the Foundation for Individual Rights in Education. The group is dedicated to protecting free speech on campus, but also advocates for due-process rights for the accused in sexual-assault cases.

The crux of the case against DeVos is that she is ruining education, as allegedly demonstrated by the experience of the charter schools that she has championed in Michigan. Her detractors argue that charters in Detroit in particular have been a disaster.

If Detroit’s charters are hardly world-class, they are demonstrably better than the city’s traditional public schools, which is the most relevant metric for Detroit parents. The traditional public schools have failed abysmally for generations (about half of adults in Detroit are functionally illiterate).

Jason Bedrick and Max Eden summarized the data on Detroit’s charters for the publication EducationNext. A study by Stanford’s Center for Research on Education Outcomes found that roughly 50-60 percent of charter schools outperformed comparable district schools. A report from a nonprofit called Excellent Schools Detroit rated 16 percent of charter schools as excellent or good compared with only 5 percent of district schools, whereas 62 percent of the district schools were weak or failing compared with 35 percent of the charters. Finally, a report from the conservative Michigan-based think tank the Mackinac Center reached similar conclusions.

If it is too much to ask that unions and their allies welcome marginal improvements in educational attainment in Detroit, perhaps they can at least avoid smearing it?
These wild accusations are a result of how the Democratic Party is a wholly owned subsidiary of the teachers unions so they are always taking the sides of the teachers unions against the children who are forced to attend failing public schools. Why don't they talk to the parents who have benefited from the spread of charter schools?
The ideological war over educational choice won’t be settled anytime soon. What’s clear is that poor parents value it, and that they have a friend in Betsy DeVos. The unions will never forgive her.
We will have to find out if Lisa Murkowski and Susan Collins will vote for DeVos. They haven't announced their decisions yet.
The press has enjoyed noting that Sen. Murkowski received campaign contributions from the DeVos family, but there’s more to the story. The National Education Association (NEA), the largest teachers union in the U.S., has also donated to Sen. Murkowski. The NEA endorsed her re-election in 2010 when she ran and won as an independent after she lost the GOP primary to a Tea Party candidate. Now the NEA wants the Senator to return the favor, like the undertaker in “The Godfather.”

The unions are pressuring these Republicans now because they know Mrs. DeVos would be the first secretary who didn’t dance to their tune since Bill Bennett in the Reagan years.

The unions have already cracked the whip on Senate Democrats, all 48 of whom oppose Mrs. DeVos. School choice was once bipartisan, and early advocates for charter schools included Bill and Hillary Clinton. Ditto for New Jersey Senator Cory Booker, who has announced he won’t support Mrs. DeVos, though he was on the board of the Alliance for School Choice when Mrs. DeVos was chairwoman. Mr. Booker is maneuvering to run for President in 2020, and much groveling to unions is required.

A Republican Senate approved President Obama’s Education Secretary John King last year, and Mrs. DeVos has done nothing to warrant defeat. If Democrats are so worried that Mrs. DeVos will “single-handedly decimate” the public-school system, as Senate Minority Leader Chuck Schumer claimed last week, perhaps they should support a bill reducing the department’s role in local education, as Nebraska Republican Ben Sasse suggested on Twitter .

One irony of the DeVos drama is the claim that her school-choice outfit, the American Federation for Children, donates to politicians to “buy influence,” which has been the union playbook for decades. AFC works almost exclusively in state and local elections, not in Washington, and its sole purpose is improving educational opportunity for all children.

At least the school-choice agenda improves educational outcomes, as students in charter schools typically gain months of additional learning. Teachers unions pay to preserve a monopoly that has failed to improve test scores or graduation rates. That long record of failure is reason enough not to let unions dictate who serves in the President’s cabinet.

Our good friends in peace, the Iranians:
CBS News national security correspondent David Martin reports that Iran tested a missIle on Sunday that flew 550 nautical miles and then exploded.

A defense official said that the missile test ended with a “failed” re-entry into the earth’s atmosphere. The official, speaking to The Associated Press, had no other details, including the type of missile. The official was not authorized to discuss the matter and spoke on condition of anonymity.
Don't you love these defense officials who aren't authorized to speak but do so anyway.

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KC Johnson and Stuart Taylor have a new book out, The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, that seems like a much needed corrective to the dangerous trends taking place on college campuses. They had paired up exposing what had gone on in the Duke Lacrosse case about how political correctness led to that fiasco, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case. That book and their reporting on the story were one bright spot amidst the injustices perpetrated in that story. What these two books have in common is how they are exposing how mobs trying to pressure school officials and investigators to deny the accused their rights. They have a post on Volokh Conspiracy explaining the injustices against the accused in sexual assault cases on campuses. And it all started with the Obama instruction to colleges.
Federal mandates, beginning with a 2011 Obama administration directive reinterpreting Title IX, combined with pressure from activists, professors and administrators, have resulted in campus tribunals where students accused of sexual assault are effectively presumed guilty, while encountered considerable obstacles to prove their innocence.
Some of the stories are horrifying and would never pass muster if the cases were treated as criminal investigations.
We lead the book, for instance, with a case at Amherst, in which the accusing student sent multiple texts on the night of the incident talking about her need to construct a lie. (The male student was the boyfriend of the accuser’s roommate, who was out of town for the weekend.) Amherst initially didn’t discover the texts, because the college couldn’t subpoena the accuser’s phone and didn’t bother to ask her regular correspondents if they had any texts from her. When the accused student tracked down the students to whom his accuser had texted, the college said he had produced the evidence too late. He then sued, and in a deposition the college’s hired investigator said she was interested only in evidence that corroborated the accuser’s account — not in evidence showing that the accuser had lied.
Sexual assault is a serious crime. Why should the accused be denied the rights they would have in a standard due process case? As the authors point out, the media have mostly ignored such horror stories.
Part of the mainstream media’s bias against accused students — almost all of whom are male — flows from a broader ideological commitment toward gender and racial identity politics. But understanding the dangers of gutting due process also calls for detailed exposure of the unfairness of campus procedures. And such analysis is not the strong suit of many journalists (or many of their readers), especially — though not only — those blinded by bias.

As for the universities, the power of identity politics has generally worked in tandem with the schools’ financial self-interest in appeasing federal officials who have the power to exact huge financial penalties to incubate unfairness toward accused students.
They also point out that four states (California, New York, Illinois, and Connecticut) have adopted "affirmative consent" laws that mandate that the accused prove that he received "affirmative consent" in every stage of every sexual encounter.
This standard “is flawed and untenable if due process is to be afforded to the accused,” a Tennessee state judge has ruled. While the peculiarities of campus tribunals have not yet spread to the criminal-justice system, a powerful faction of the American Law Institute is seeking to import into the criminal law rules very much like those used by the campus kangaroo courts.
Liberals used to care about due process rights. In fact they are quite vocal in certain cases, particularly when race is involved. But when sex is involved, all that concern flies out the window.