Wednesday, February 01, 2017

Cruising the Web

I certainly didn't support Trump in the campaign and, for the first time in my life, threw away my vote for the presidency. But his nomination of Judge Gorsuch last night fulfilled every hope that I had after the passing of Justice Scalia. At least from what we can tell now, he is everything I would have hoped for to replace Scalia.

Ramesh Ponnuru summarizes Judge Gorsuch's record and presents this excerpt from a tribute that Gorsuch gave after Scalia's passing that indicates that his judicial philosophy follows in the tradition of Justice Scalia.
Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best. As Justice Scalia put it, “if you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
Benny Johnson at the Independent Journal Review posts this picture of Gorsuch and Scalia together. It's a picture to make any conservative smile.

Of course, the Democrats are going to do everything they can to block his ascension to the Court. Who knows if they will launch a filibuster. I imagine that there will be such pressure from their base that they will feel compelled to, but there might be some Democrats from red states who will realize that launching a filibuster to prevent a vote for such an eminently qualified judge for whom they allowed to be confirmed by voice vote with no opposition when he was nominated in 2006 for the federal bench. Somehow they'll have to demonstrate that his rulings in the past decade are so abominable that they now justify a filibuster when they couldn't even raise their voices against him in 2006.

The Democrats are angry about how the Republicans blocked President Obama's nomination of Merrick Garland. I get that. I would have also been angry if the situation had been reversed. But they will have to confront their own hypocrisy on the whole situation since back when they thought that Clinton would win and that they would regain control over the Senate, Harry Reid had snapped his fingers and said publicly that, if the Republicans filibustered a Clinton nomination, the Democrats would extend the nuclear option to the Supreme Court nominations. John McCormack reminds us of Schumer's silence when Reid made that threat. Does anyone think that, if the situation were reversed that they would have allowed a GOP filibuster of a Clinton nominee to the Court to stand without changing the rule? Of course not.

Both sides are hypocrites about all this. If it had been a Republican president making the nomination after Scalia's death, there is no way McConnell and the Republicans would have held off until after the election to confirm that nominee. And the Democrats would have been the ones screaming that we had to wait until after the election so that the people would get a say. So let's not pretend that either side is the one acting on principle. Let's just have the hearings on Judge Gorsuch and have a vote. And if the Democrats want to filibuster, the Republicans can then treat the Democrats to a taste of their own nuclear medicine.

The only thing from Judge Gorsuch's statement last night that I would have quarreled with was his statement that "the Senate is the greatest deliberative body." Er....no.

Once Trump had made up his mind on Judge Gorsuch, it was smart to move the announcement up from the original day of Thursday. At least, this will change the conversation a bit from concentrating on the botched execution of his executive order.

If Democrats want to do more than oppose Gorsuch out of pique for the Republicans' blocking of Merrick Garland's nomination, they'll have to drum up reasons. Already, liberals are saying that they dislike Gorsuch's expressed skepticism of automatic judicial deference to administrative agencies' interpretations of ambiguous or vague laws.
Nan Aron, the president of the Alliance for Justice, a liberal group, said Judge Gorsuch’s stance on federal regulation was “extremely problematic” and “even more radical than Scalia.”

“Not requiring courts to defer to agency expertise when an act of Congress is ambiguous,” she said, “will make it much harder for federal agencies to effectively address a wide variety of critical matters, including labor rights, consumer and financial protections, and environmental law.”
Really? That's the best they've got - that courts should allow unelected bureaucrats to just make regulations up when they don't have the legislated authority to do so and not showing that sort of deference means that labor rights and the environment are not protected? This is how the WSJ explains Gorsuch's approach to what is called "Chevron deference."
Known as “ Chevron deference,” the doctrine stems from a 33-year-old Supreme Court ruling—Chevron U.S.A. vs. Natural Resources Defense Council—dealing with the Environmental Protection Agency’s interpretation of the Clean Air Act.

It instructs courts to defer to an executive agency’s interpretation of a congressional statute when there is doubt about what lawmakers meant to enact. If the legislative basis for a regulation is in doubt, but the rule seems reasonably constructed, judges are supposed to give agency regulators the benefit of the doubt.

Conservative legal thinkers, including Justice Scalia, embraced the doctrine at a time when President Reagan’s policy of deregulation was coming under judicial scrutiny. At the time, many conservatives felt that judges were improperly assuming the role of policy makers.

But during the Obama administration, many on the right came to see the doctrine and the wide latitude it grants agencies as a threat to separation of powers—and vesting too much authority in the executive branch.
Having just taught my students yesterday what the word "deference" means in discussing how the power of the bureaucracy has increased in preparation for their learning what administrative law is, I welcome public discussion of this principle. Somehow, I don't think that the public will be appalled at the idea that judges shouldn't automatically defer to bureaucrats.
Judge Gorsuch wrote a searing critique of the doctrine last August in a case concerning the U.S. Attorney General’s discretionary authority over an undocumented immigrant’s residency status.

Chevron deference, Judge Gorsuch wrote, “invests agencies with pretty unfettered power” and permits “executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

He called Chevron deference a “judge-made doctrine for the abdication of the judicial duty.”

It is unclear whether Judge Gorsuch’s presence on the high court would tip the balance against the doctrine, and, theoretically, pull some authority away from the president who nominated him.

The eight justices themselves are divided on the issue, with Justice Thomas most aligned with Judge Gorsuch. At the time of his death, Justice Scalia had been drifting away from Chevron deference, but hadn’t entirely discarded it.

Jeffrey Pojanowski, an administrative law expert at Notre Dame Law School, said the doctrine is likely to survive in the short-term. The professor said Judge Gorsuch’s elevation to the high court could make justices more likely to give it a harder look. Of course, a lot will depend on how and what Mr. Trump decides to regulate.
Ooooh! How scary the country would be if bureaucrats had to pinpoint where in the law they got the authority to craft the regulations that they write. Obviously, that way lies Armageddon.


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Kevin Williamson points to the whole Kabuki theater aspect of judicial confirmation fights. When the opposition has printed signs ready within minutes of the nomination, should we really believe that they would have accepted any nominee or that their opposition is a true grass roots movement? But they have to try to convince us now that he is "extreme and dangerous."
But, “extreme”?

Gorsuch sits on the Tenth Circuit Court of Appeals in Denver. He was confirmed to that post unanimously.

If he is an “extremist,” then Senate Democrats confirmed a right-wing extremist to one of the nation’s highest courts without a single vote against him. Why would they do that?

Why would Senator Obama have done that?

The word “extremist” of course no longer means anything. It is something like what George Orwell said of “fascism.”
It will be seen that, as used, the word ‘Fascism’ is almost entirely meaningless. In conversation, of course, it is used even more wildly than in print. I have heard it applied to farmers, shopkeepers, Social Credit, corporal punishment, fox-hunting, bull-fighting, the 1922 Committee, the 1941 Committee, Kipling, Gandhi, Chiang Kai-Shek, homosexuality, Priestley’s broadcasts, Youth Hostels, astrology, women, dogs and I do not know what else.
“Fascism,” he wrote, had come only to mean “something not desirable.”

I do sometimes wonder, sincerely, at what appears to me to be a genuine lack of self-respect on the Left. No one believes Chuck Schumer helped put a right-wing extremist on a federal court, and no one believes Gorsuch is an extremist. But the ritual incantation must be made, because that is what is demanded.

It gets very weird: Whatever else can be said of him, Donald Trump is more pro-gay than was Barack Obama when he was elected (Obama, remember, opposed gay marriage, based on, in his words, what “my faith tells me.”) But Democrat-affiliated gay groups denounce him as a monster even though he is closer to their position on gay-rights issues than any other man elected president has been. The streets are full of people protesting Trump’s attempt to restrict the travel of certain foreigners wishing to visit the United States — but these same people could not be moved when Barack Obama proposed stripping U.S. citizens of their constitutional rights with no trial, charge, or due process, and restricting their travel as part of a secret military-intelligence process. They cheered it, in fact, and said those who opposed this insane plan were soft on terrorism. President Obama went as far as ordering the assassination of U.S. citizens, and the Left became very angry with Chick-fil-A.

Perhaps our Democratic friends will pardon us if we do not take too seriously their insistence that Gorsuch is an “extremist.”

Perhaps they will pardon us if we do not take them too seriously about much of anything.


Tom Rogan point
s to the real problem with Trump's executive order on delaying visas - it doesn't address the problems we've faced with terrorists.
Trump’s travel ban is a counterterrorism Maginot Line: A fortress of arrogance that ultimately proves impotent.

Trump is preventing travel to the U.S. from seven terrorist-friendly nations. But just as the Maginot Line was circumvented by a Nazi blitzkrieg through Belgium, terrorists in the EU can circumvent Trump’s ban and attack America.

For an EU citizen who is not on a watch list, the visa-waiver program, which allows citizens of certain countries that have good relationships with the U.S. to enter without visas, makes traveling to America easy. ISIS is aware of this, and takes great effort to teach attackers it directs (the Paris plotters) and attackers it inspires (Omar Mateen) how to avoid detection when traveling between and within Western countries. As with 9/11, by the time an individual gets to the Customs line, it’s often too late. At that point, U.S. officials have few means of discovering whether a visitor is coming for vacation or to commit violence. ISIS and al-Qaeda not only understand this, they are existentially hateful towards America and are determined to attack us.

Don’t get me wrong. My argument is not that EU citizens should be included in Trump’s ban. My point is that the ban’s seven-nation-spray-from-the-hip approach is not a strategy.

And we should be under no illusions — Trump is spraying from the hip. While EU citizens holding dual citizenship from any of the seven listed nations are, apparently, banned from U.S. entry, dual citizens from countries not on the list are not. Notable absences include the former French colonies of Algeria, Tunisia, and Morocco (which yield a disproportionate number of terror suspects among French dual citizens) and Pakistan (the key source of dual-citizen British terror suspects).
Rogan argues that we could face real problems if someone who is an EU citizen came to the US and committed a terrorist attack. What then would Trump do? Ban EU citizens from coming to the US? That would be a disaster.
Ultimately, President Trump is right to recognize that countering terrorism requires a bold strategy. But it also requires introspection and careful implementation. The Maginot Line failed because the French government chose populist grandstanding over clear thinking. Trump must not make the same mistake.

Rich Lowry notices that somehow, as we all knew it would, calling someone you disagree with un-American is now back in style.
Democrats, who have spent the past half-century since Joe McCarthy objecting to the suggestion that anyone in this country might not be patriotic, can barely mention President Donald Trump’s immigration order without calling it un-American. Judging by their performance over the past few days, if Democrats ever take back control of Congress, their first act will be to reinstitute the House Un-American Activities Committee to investigate proponents of reduced immigration and their associates. (“Are you now or have you ever been an immigration restrictionist?”)

Trump’s immigration order is vulnerable to any number of legitimate criticisms, on its merits and particularly on its shambolic rollout. But it is not true that a months-long pause in immigration from seven Muslim-majorities countries, some of which lack functioning governments, and all of which are either war-torn or hostile to the United States, is a violation of the nation’s creed.

Nowhere is it written that the United States can never tap the brakes on immigration. For much of the political class and for an inflamed Left, any new restriction is tantamount to melting down the Statue of Liberty, an ahistorical attitude that desperately needs a corrective. President Trump, in blunderbuss fashion, is setting out to provide one.

Everyone knows that we are a “nation of immigrants,” although immigration has been highly contested throughout our history. “America,” the late political scientist Samuel Huntington wrote, “has been a nation of restricted and interrupted immigration as much as it has been a nation of immigration.”

....there is a lot of room to reduce immigration without shutting our doors entirely. A cut in half in legal immigration to the levels of the early 1980s would still mean roughly 500,000 new immigrants a year, a high absolute number compared with almost every other country in the world. Of course, the Trump policy that has caused such a reaction is not close to change of this scale.

Trump also has temporarily suspended the U.S. refugee program and capped it at 50,000 refugees. This is in the same ballpark as the figure for admittances from the past five years or so, when the number of refugees was typically between 50,000 and 70,000 a year. If we are using an overall level of refugees to judge our American-ness, 1976, 1977, 1978, 2002, 2003, 2006, and 2007 must have been woefully un-American years, because the number of refugees was less than 50,000 in each of them.
As Yuval Levin writes that the uproar over Trump's executive order is leading supporters to jump in with almost Pavlovian responses to defend the substance of the order. Just because people have criticized the White House's performance with this order doesn't mean that supporters should start arguing that, of course critics are wrong and there was no problem.
Reactions to this weekend’s implementation of President Trump’s executive order regarding immigration have tended to confound the ends and the means of the order—the substantive policy goals and the process involved in developing the policy. Critics have tended to see the shambolic process of crafting and announcing the order as part and parcel of a disordered morality embodied by the policy it sets. Defenders have argued that bold ends call for brash means. Even Trump himself has suggested that the purpose of the policy required that it be a surprise—apparently even to the highest levels of his administration and to the people charged with carrying it out.

These elements have to be untangled. Whatever you think of what this order set out to do (and I think that, as it was formulated, it elevates dubious political symbolism over governing substance and seems likely to undermine the national interest), you have to acknowledge that the order was produced in a way that set up the new president for failure. This should be only more troubling if you are more friendly to the policy involved....

Other problems were in evidence too, and the administration needs to make sure that its defensiveness in the face of its critics does not blind it to its own shortcomings. It should also be sure it does not partake of the error some of those critics have made by confounding ends and means and so does not take attacks against the process that led to this presidential order as simply attacks against the substance of the order—to be dismissed as a matter of ideological disagreement.

It’s early. And this new president’s team consists of people who haven’t done this sort of thing before. None of us outside critics should imagine we would have done better. It’s always safe to assume a new administration will face a steep learning curve and isn’t ready on day one. But after this weekend, we don’t have to assume it. It’s clear, and we can only hope the new president and his team see it too. The stakes are awfully high.

Hmmmm. What did the Obama administration do to help religious minorities threatened with death? Well, if those threatened were Christians, the Obama White House didn't act to help them.
The Unites States State Department even under Obama found that Christians in more than 60 countries face persecution from their governments or the surrounding neighbors simply because of their belief in Jesus. Yet what did Obama do about it? How many Democratic politicians and Hollywood actors and actresses complained about this?

An estimated 322 Christians are killed because of their faith each month. What is the estimate of Democratic politicians and Hollywood actors and actresses complaining about this?

A Pew Research Center Poll found that more than 75% of the world’s population centers are areas with severe religious restrictions, many of them Christian. What percentage of Democratic politicians and Hollywood actors and actresses are complaining about this?
Their silence is telling.

The WSJ points out that Barack Obama's legacy on refugees is not pure despite his insertion into the brouhaha over the executive order. His spokesman said that President Obama is against discriminating against people based on their faith or religion.
No one doubts that, but then Syrian refugees became a global crisis in large part because Mr. Obama did almost nothing for five years as President to stop the civil war, much less help refugees. Here are the number of Syrians his Administration admitted: fiscal year 2011, 29; 2012, 31; 2013: 36; 2014, 105; 2015, 1,682. Only in 2016 did he increase the target to 13,000, though actual admissions haven’t been disclosed. Mr. Obama also barely lifted a hand to help resettle translators who worked with GIs in Iraq or Afghanistan.

We oppose Mr. Trump’s refugee order, but it takes a special kind of gall for Mr. Obama and his advisers like Susan Rice to lecture anyone about “American values” and refugees from chaos in the Middle East.
The Obama administration admitted Syrian refugees from the refugee camps which automatically left out Syrian Christians because they were threatened with death if they stayed in those camps.

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Steven Hayward links to a Newsweek story about how a Russian shell company is funding environmental groups that are fighting against fracking.
Here in the United States, a Senate report found that the Sea Change Foundation funneled more than $43 million to environmental causes in 2011 -- padding the budgets of ardent anti-fracking organizations like the League of Conservation Voters, the Sierra Club and the Natural Resources Defense Council. The Foundation is heavily funded by a Bermuda-based shell corporation with direct ties to Putin and Russian oil interests. The shady firm is currently under indictment for offshore money laundering.

The influence of Russian propaganda and the influx of money funneled from the Kremlin to many of America's most extreme environmental outfits helps explain why anti-fracking attacks continue even though science has confirmed fracking poses no threat to public health.

A five-year study from the Environmental Protection Agency could "not find evidence that [fracking] led to widespread, systemic impacts on drinking water resources in the United States." Former EPA Administrator Lisa Jackson admitted there hasn't been a single "proven case where the fracking process itself has affected water."

The U.S. Geological Survey and the Groundwater Protection Council both found fracking caused no groundwater contamination. A recently concluded three-year study performed by geologists at the University of Cincinnati also found fracking had no impact on local water supplies.
Wow! How much publicity will this revelation get anytime fracking is in the news and we have a bunch of people come out to protest? Will reporters be asking these organizations about their support from Vladimir Putin? Isn't Putin interfering in our energy industry in order to prop up Russia's oil industry at least half as important as their involvement in leaking political communications from Democrats during the election? I think we all know the answer to all these questions.

Sarah Hunt at the American Legislative Exchange Council has put together a compendium of what Trump's nominees have said in their Senate hearings about climate change. As she points out, their answers "show a cabinet consensus on climate change that might surprise a person who does not read past headlines." What a shame for the environmentalists who are portraying these people as climate denialists. Trump might believe that climate change is a hoax, but his nominees don't. She concludes,
True, the nominees do not agree among themselves about what, if any, public policy responses are warranted to address climate change. And, true, for some of the nominees, even stating that climate change is “real” represents a new public position on climate. Their statements during their nomination hearings, however, are hardly the stuff of “denial.” Instead, the hearings show Republican administration officials who are open to a national discussion about climate change and the appropriate way to address the challenge.

All concerned about environmental stewardship and human health should welcome this open door to dialogue. “Climate denial” name-calling politicizes the issue and slams the door shut on what is an opening for bipartisan conversation about an important matter of public policy. The environmental Left must decide if they desire an open discussion about environmental protection or if they want to continue to deploy environmental concerns as a political wedge to advance a big government agenda. Casting the “denier” aspersion on a Republican leader is not justified because that person is reluctant to embrace climate policies inconsistent with their sincerely held limited government and free market values.
Jeffrey Carl adds his thoughts about how the left thinks that only their approaches to the environment are acceptable and all other positions are "denialist."
It’s not at all inconsistent to believe that climate change is an issue worth addressing but to think that the UN process is hopelessly corrupted, brings the wrong players into the room, and, through its elevation of moral preening and grandstanding in attacks on countries such as the U.S., does more to exacerbate the political problems on climate change than it does to solve them.

It’s not at all inconsistent to think climate change is an issue worth addressing and yet to want the government to avoid Solyndra-style taxpayer boondoggles.

It’s not inconsistent to think climate change is an issue worth addressing and yet wonder whether the almost $1 Trillion spent globally on clean energy investment globally over the last three years is being spent wisely.

It is not at all inconsistent to think that climate change is worth addressing and yet to think that most of the way the left deals with climate change has far more to do with virtue-signaling, Republican-bashing. and rank hypocrisy than it does with actually addressing the climate issue in a meaningful way.

This is wonderful. Go North Dakota!
After spending more than $22 million on the Dakota Access pipeline protest, North Dakota wants to make sure any paid activists remember to submit their state income taxes.

Tax Commissioner Ryan Rauschenberger said his office is keeping an eye out for tax forms from environmental groups that may have hired protesters to agitate against the 1,172-mile, four-state pipeline project.

“It’s something we’re looking at. I can tell you I’ve had a number of conversations with legislators regarding this very issue,” said Mr. Rauschenberger. “[We’re] looking at the entities that have potential paid contractors here on their behalf doing work.”
It’s no secret that millions have been funneled into the six-month-old demonstration via crowdfunding websites, and that more than 30 environmental organizations, including the Sierra Club, Indigenous Environmental Network, Food and Water Watch, 350.org and Greenpeace, have backed the protest.

If national environmental organizations are paying protest personnel, they’re not saying so publicly. Still, Mr. Rauschenberger said red flags will be raised if he doesn’t start seeing W2 or 1099 tax forms from those affiliated with the protest arriving at his office.
“It’s something we could possibly pursue if we don’t see 1099s coming in for the activity,” Mr. Rauschenberger said.

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How do we know
that Sally Yates was grandstanding rather than acting on true principles? She stayed on in the DOJ rather than resigning her job once she decided she couldn't support Trump's policies.
It’s wrong for such a person to deliberately put himself in a position where he either has to implement a policy to which he conscientiously objects, or resign and embarrass the new president. The obvious way to avoid that is simply to decline to stay on in the first place.

Anyone who has not been in a coma for the last 18 months had to know that one of the first things Donald Trump was likely to do as president was issue an executive order restricting immigration as part of a policy to protect the United States from terrorist attacks. Whatever flaws there may have been in the construction of the order, its scope was by no means more broad than could have been expected, given Mr. Trump’s quite clear position on the issue.

So the short of it is that, given the beliefs she has now expressed, Sally Yates should have left the Justice Department on the day Donald Trump took office. That she didn’t do so was either a mistake on her part, or as the editors of NR have suggested, a deliberate attempt to create visibility for herself as she went out the door. And it was risible for Yates to claim in her public statement that she could not conscientiously defend in court a legal position she thought unsound, given the Obama administration’s record of litigating a number of extreme legal positions that were likely to be, and were, repudiated by the courts.

In other words, if Yates has a problem defending executive actions that, in the words of her statement, she is not “convinced” are lawful, her scrupulousness on the subject is of very recent origin.
Even if she had decided to stay but then felt she couldn't defend the order, she should have honorably resigned at that point instead of her futile act of saying she wouldn't defend it in court when she knew that would lead to her firing. That is just moral preening to play to the liberal base and give them another talking point against Trump.

And this is why we need bureaucrats - to protect the narrow interests of one state.
Democratic Wisconsin Sen. Tammy Baldwin is asking President Donald Trump to help dairy farmers by enforcing the definition of milk to only mean what comes out of a cow or goat.

Allowing businesses to sell plant-based drinks as milk “is unfair to dairy farmers” who sell real milk, Baldwin argues in a letter to the president sent Tuesday.

“Products made from nuts, seeds, plants and algae do not provide the same nutritional profile as the dairy products they imitate, and they should not be able to use dairy’s good name for their own profit,” Baldwin says in the letter.

“I would encourage your administration to enforce laws on the book that allow the FDA to crack down on the mislabeling of non-dairy products with dairy terms including ‘milk,’ ‘ yogurt,’ and ‘cheese,’ Baldwin said.

Here's an example
of Judge Gorsuch's use of humor as he dissented from a ruling in favor of a police officer who arrested and sent a 13-year old student to juvenile detention for excessive burping in gym class.
If a seventh grader starts trading fake burps for laughs in gym class, what's a teacher to do? Order extra laps? Detention? A trip to the principal's office? Maybe. But then again, maybe that's too old school. Maybe today you call a police officer. And maybe today the officer decides that, instead of just escorting the now compliant thirteen year old to the principal's office, an arrest would be a better idea. So out come the handcuffs and off goes the child to juvenile detention. My colleagues suggest the law permits exactly this option and they offer ninety-four pages explaining why they think that's so. Respectfully, I remain unpersuaded.