Friday, June 02, 2017

Cruising the Web

What Donald Trump should do is submit the Paris Climate Change agreement to the Senate to be voted on. We should get back to the vision of the Founders that agreements with foreign countries need a two-thirds vote of approval from the Senate so the states' representatives have to agree to whatever the president wants to commit the nation to. Every year, I teach the Constitution, we go over the checks and balances in the Constitution and the students all learn about the requirement that the Senate ratify treaties. Then, a few units later we get to the unit on the presidency and they learn that presidents can negotiate executive agreements that don't have to be submitted to the Senate. And the students are amazed that the whole structure they had to learn a couple months earlier has this big loophole. I'd love to see more agreements ratified by the Senate. This agreement on the climate, just as the Iran deal, needed the ratification of a Senate vote. And just because President Obama knew he couldn't get it through the Senate, he didn't submit it as a treaty. And, as my students learn, the weakness of an executive agreement is that a subsequent president can find ways to pull out of it.

Eugene Kontorovich writes in the Washington Post that the Paris agreement doesn't fit the criteria for being what Obama treated it as, a sole executive agreement (SOE); instead it is a treaty that requires the advice and consent of the Senate.
Two features cut heavily against it being treated as the kind of arrangement that can be entered into by a president on his own authority. First, it has a four-year waiting period for withdrawal, quite unlike traditional executive agreements. Second, it is a large multilateral deal, and the other parties apparently believe it requires domestic ratification. Whatever that means for U.S. constitutional purposes, it does suggest that other countries should hardly protest if Trump merely follows their example to seek domestic ratification.
He goes on to explain something that you won't hear in all the media outrage about Trump's announcement. Other countries submitted the agreement to be ratified in their own countries.
Countries seem invariably to have accepted the agreement as a treaty that requires going through their internal treaty-ratification processes, typically submission to the legislature. Countries from the United Kingdom to China to Jamaica have ratified it through their legislatures. So has Brazil, Japan, the Philippines and Australia. In the latter, the question of whether it was a binding international accord requiring submission to Parliament received some discussion, and a parliamentary analysis concluded it was a “major treaty” that needed to be submitted.

I know of no country that has taken the U.S. approach. All countries seem to understand that ratification requires using the domestic procedure for ratifying treaties.

The universal interpretation of the agreement as a treaty cuts against Obama’s insistence that it is not one. (It should also be noted that SOEs for multilateral agreements are themselves almost unheard of, and certainly not for global ones.) A treaty is an international agreement, and in a multilateral treaty, the views of other signatories are at least probative of the question of whether it creates binding obligations upon ratification.

To be sure, the question of what kind of agreements must be submitted to the Senate is not governed by foreign countries’ rules about treaty ratification. The U.S. definition of “treaty” for constitutional purposes is considerably narrower than the definition of treaty in international law. The definition in various other countries’ constitutions may also be broader and narrower. So it is not the other countries’ decision to seek legislative ratification that is relevant, but rather, the view that it creates binding international commitments.

That is not to say that the status of agreement in international law and practice is irrelevant to its domestic constitutional status. Indeed, from the earliest cases, courts have looked to international law for the purpose of distinguishing treaties from other agreements.
Given how the liberals on the Supreme Court love to look to what other countries do in their rulings and the liberals in the media applaud that argument, shouldn't they agree that this agreement should be submitted to the Senate.

This is what Trump announced he was doing, but I think it would be a masterstroke. Make all those Democratic senators from red states vote on this agreement. A treaty ratification would have given this agreement permanence. But Obama knew that he couldn't have gotten a two-thirds approval. If this deal was so fantastic with only upsides, why wouldn't Obama have sent it to the Senate?

Of course, many in the media keep referring to the agreement as a treaty. Wrong.

What is funny is that the agreement does so very little. All this sturm und drang from both sides is a lot of sound and fury. Allahpundit writes,
[M]ost acknowledge that the Paris agreement doesn’t really do anything. It’s hortatory. It’s a symbolic gesture that climate change is Important, maybe a building block to a more formally binding international treaty later but a fart in the wind for now. To Democrats, that’s a reason to leave the agreement alone: Why withdraw if the accord imposes no burden on you? To Republicans, it’s the opposite: Why play along with a legal fiction instead of withdrawing? It’s a silly debate given that both positions leave you in the same place, with Trump’s administration doing next to nothing on curbing emissions over the next four years. But today’s decision matters symbolically as grave heresy against a core liberal quasi-religious conviction and as a bold nationalist statement that Trump will go his own way on foreign policy no matter how much other powers disapprove. That’s the deeper meaning of the “Pittsburgh” line. In the end, what Pennsylvania thinks matters more than what Paris does.
What the agreement does is set goals with no enforcement provisions. The goals were nonbinding and each country could set up its own benchmarks without any enforcement mechanisms. No wonder they could get all the countries to agree. Only something that didn't do much would get all the countries to sign on to. Even though the agreement wasn't binding, we were supposed to give more power over to the administrative state that would have been able to make all sorts of regulations that no one in the Congress would have any say over.

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As Charles C.S. Cooke writes, extremists on climate change want to deny that anyone who doesn't agree with their chosen policies must therefore actually hate the environment as if we don't breathe and have children who breathe.
As today has shown once again, one of the key problems with our debate over the ideal climate policy is that those who drive the conversation simply refuse to draw a bright enough line between the problem and the response. It is possible for a person to hold simultaneously that a) man is having some effect on the climate; b) that our discussion of this effect is prone toward alarmism; and c) that what to do about this problem is a matter of legitimate and necessary debate. Indeed, an awful lot of people hold exactly these positions. Do those hyperbolizing over the withdrawal from the Paris Accord understand that?

It seems that they do not. For far too many environmentalists, disagreement with their coveted remedies – or even their nonbinding accords! — is akin to “denial” of the ailment per se. Thus to oppose, say, a carbon tax is to be accused of “hating science”; to dislike the Paris Accord is to be “pro-coal”; and to propose that we are just as likely to lower emissions sustainably by replacing traditional methods of energy procurement with fracking or nuclear power as to give carte blanche to Tom Steyer is to be a wannabe killer of Indonesian kids. Today, as ever, the debate over the best course has been marked by all-or-nothing propositions. Believe that climate change is real? Then you must believe New York will soon be underwater. Don’t believe New York will soon be underwater? Then you don’t believe climate change is real. Etc.

AEI reminds us of the outrage when George W. Bush withdrew from the Kyoto treaty, a treaty that Clinton never submitted to the Senate because he knew they wouldn't approve it. Liberals assured us that this was a disaster wrought by an idiot president. Sound familiar?
Of course, the predicted apocalypse never happened. To the contrary, the Wall Street Journal reports that after Bush’s withdrawal the US “reduced emissions faster than much of Europe thanks to business innovation—namely, hydraulic fracturing that is replacing coal with natural gas.” It turns out that technology, not treaties, is the best way to curb emissions – and to do so without harming consumers by dramatically increasing the cost of electricity. In the years after Bush’s Kyoto withdrawal, electricity prices in the US were half of the European Union average (which went up by 55% from 2005 to 2013) and one-third of the price in Germany—where emissions, ironically, went up thanks to the abandonment of nuclear power.

No matter; the left-wing outrage machine savaged Bush anyway, just as it is savaging Trump today for his pending announcement of America’s withdrawal from the Paris climate agreement signed by Barack Obama.

Keep the pangs of outrage in perspective. We’ve seen this movie many times before. Republican president withdraws from cherished international agreement. Left goes into apoplexy. Rinse and repeat.

It’s like Groundhog Day.

The same thing happened when Bush withdrew the US signature from the Rome Statute of the International Criminal Court. The Guardian declared it would “provoke anger from the international community, and provide further evidence for what many see as the Bush administration’s increasing unilateralism.” Judge Richard Goldstone, the chief prosecutor at The Hague war crimes tribunal on the former Yugoslavia called it “unprecedented” and “a very backwards step” that “smacks of pettiness” adding, “The US have really isolated themselves and are putting themselves into bed with the likes of China, the Yemen and other undemocratic countries.”

The same was true when Bush withdrew from the ABM Treaty barring ballistic missile defenses—which then-Senate Foreign Relations Committee chairman Joe Biden warned would lead to an arms race. Now, as North Korea gets closer to developing a missile that can reach the US—and the US tests a “kill vehicle” that successfully intercepted and destroyed a mock ICBM—most Americans are grateful for Bush’s decision.

Whenever the GOP kills fatally flawed treaties and agreements, the left howls. So the hysteria over Trump’s withdrawal from the Paris agreement is no surprise, and is not further evidence that he is unfit for office. It is evidence that he made the right decision. If Trump is being attacked hysterically for doing something conservative (rather than for his tweets) it’s a good day for conservatives.
AEI points out that Trump might have gone the other way on the Paris agreement. After all, his daughter and son-in-law were reportedly urging him against this action. He might have been persuaded to stay in by arguing that he would lose the support of the Democrats for the rest of his agenda. But since the Democrats in Congress have determined to oppose Trump straight down the line so that argument wouldn't have worked.

Here is the evidence that the WSJ gives about the progress in America versus Europe and how the Paris agreement would have harmed our country.
While legally binding, Kyoto’s CO 2 emissions targets weren’t strictly enforced. European countries that pursued aggressive reductions were engaging in economic masochism. According to a 2014 Manhattan Institute study, the average cost of residential electricity in 2012 was 12 cents per kilowatt hour in the U.S. but an average 26 cents in the European Union and 35 cents in Germany. The average price of electricity in the EU soared 55% from 2005 to 2013.

Yet Germany’s emissions have increased in the last two years as more coal is burned to compensate for reduced nuclear energy and unreliable solar and wind power. Last year coal made up 40% of Germany’s power generation compared to 30% for renewables, while state subsidies to stabilize the electric grid have grown five-fold since 2012.

But the climate believers tried again in Paris, this time with goals that are supposedly voluntary. China and India offered benchmarks pegged to GDP growth, which means they can continue their current energy plans. China won’t even begin reducing emissions until 2030 and in the next five years it will use more coal.

President Obama, meanwhile, committed the U.S. to reducing emissions by between 26% and 28% below 2005 levels by 2025. This would require extreme changes in energy use. Even Mr. Obama’s bevy of anti-carbon regulations would get the U.S. to a mere 45% of its target.

Meeting the goals would require the Environmental Protection Agency to impose stringent emissions controls on vast stretches of the economy including steel production, farm soil management and enteric fermentation (i.e., cow flatulence). Don’t laugh—California’s Air Resources Board is issuing regulations to curb bovine burping to meet its climate goals.

Advocates in the White House for remaining in Paris claim the U.S. has the right to unilaterally reduce Mr. Obama’s emissions commitments. They say stay in and avoid the political meltdown while rewriting the U.S. targets.

But Article 4, paragraph 11 of the accord says “a party may at any time adjust its existing nationally determined contribution with a view to enhancing its level of ambition.” There is no comparable language permitting a reduction in national targets.

Rest assured that the Sierra Club and other greens will sue under the Section 115 “international air pollution” provision of the Clean Air Act to force the Trump Administration to enforce the Paris standards. The “voluntary” talk will vanish amid the hunt for judges to rule that Section 115 commands the U.S. to reduce emissions that “endanger” foreign countries if those countries reciprocate under Paris. After his experience with the travel ban, Mr. Trump should understand that legal danger.

The Big Con at the heart of Paris is that even its supporters concede that meeting all of its commitments won’t prevent more than a 0.17 degree Celsius increase in global temperatures by 2100, far less than the two degrees that is supposedly needed to avert climate doom.

It’s also rich for Europeans to complain about the U.S. abdicating climate leadership after their regulators looked the other way as auto makers, notably Volkswagen , cheated on emissions tests. This allowed Europeans to claim they were meeting their green goals without harming the competitiveness of their auto makers. The EPA had to shame the EU into investigating the subterfuge.

The U.S. legal culture will insist on carbon compliance even if Europe and China cheat. Even if Mr. Trump would succeed in rewriting U.S. emissions targets, his successor could ratchet them back up. That possibility might deter some companies from investing in long-term fossil-fuel production.

The simplest decision is to make a clean break from Paris.
Yup, Germany has surely demonstrated how going green and avoiding other types of energy, including nuclear energy, is so beneficial. As John Hinderaker writes,
Just ask the Germans how “green” energy has worked out for them. No one has ever explained how producing energy inefficiently can possibly benefit anyone, other than the “green” rent-seekers with political influence who make millions at the expense of taxpayers and electricity ratepayers.

It's funny that we're hearing arguments that Trump should have stayed in the agreement because it didn't really do anything. Sean Davis ridicules this argument.

Jamie Horgan demonstrates how little will change because of Trump pulling out of the agreement.
The GCF [Green Climate Fund] was also the biggest sticking point between delegates during negotiations in Paris a year and a half ago, in large part because it’s an imperfect solution to a two-headed problem that has dogged attempts to address climate change over the years. The first question any top-down approach to climate change has to reckon with is how to equitably distribute responsibility for the current state of the planet. Most developing countries point to the fact that it’s the developed world that has done the lion’s share of the polluting up until today. The second is who will have to do most of the cutting. The Green Climate Fund was the tool the Paris deal used to paper over those cracks: the developed world would pay to help the developing world make the painful cuts, and adapt to the already unavoidable impacts of climate change already in the mail.

Trump taking issue with the GCF isn’t an uncommon objection. He is expressing a fear that is shared—spoken or not—by policymakers in every developed nation. No country wants to be on the hook for a blank check issued to the developing world to help install anything with affixed with an “eco-” or “clean” prefix. Furthermore, the fund has thus far failed at its only two tasks: raising money and spending it. Even the most optimistic estimates show the GCF to be $40 billion short of its $100 billion annual goal this year, and what cash it has managed to raise from the West, it has struggled to spend in the developing world. There are real causes for concern that the GCF cash that has been doled out hasn’t been spent in a smart manner. Anyone familiar with the foreign aid world could have told tell you that this was all but inevitable.

So what changes now that the U.S. has jumped ship? In real terms, almost certainly not as much as wailing greens would have you believe. Again, since Paris was an entirely voluntary deal, Trump’s climate policies weren’t constrained in any meaningful way by our participation in it. Conversely, his climate policies won’t be substantively different now that we’re pulling out of Paris.
So mostly what the impact of Trump's decision is symbolism.
No, this wasn’t about measurable change, it was about optics, pure and simple.

Domestically, Trump just fulfilled a campaign promise and mollified many in his base who might have been concerned about his steadfast commitment to scuttling ‘globalist’ international treaties. He stuck it to the Left, and simultaneously dismantled the last important piece of Obama’s green legacy. (At this point, President Obama has precious few lasting environmental policy successes to point to from his time in office. That’s an inherent problem with governing by the executive action, as Obama chose to do. Of course, there’s a bright side to that fact for greens: Trump is also unlikely to make a large impact on environmental policy through Congress, so his legacy on that front should have a similarly short shelf life.)

Internationally, Trump has flipped the bird to world. Developing countries will be gnashing their teeth at the thought of America backing out its financial commitments. Don’t be surprised to see a kind of domino effect, with leaders in the developing world jumping ship now that the cash flow promised them through the GCF could be drying up. As for the richer countries, they will see it as something akin to green treason.

China may try to exploit the opening, and talk a big game about joining the EU in taking on a climate leadership role. If this comes to pass, understand that it will be nothing more than posturing. China is far and away the global leader in greenhouse gas emissions, and for all of the EU’s stern tone and finger wagging on climate change, the bloc’s latest data show that its emissions actually increased 0.5 percent in 2015. Contrast that with the United States, which saw emissions drop a whopping 3 percent last year as a result of the continuing (shale-enabled) transition from coal to natural gas.

And that gets us to the heart of the issue. One’s opinion of the new climate course Trump just charted for America will ultimately depend on how much faith one puts in climate diplomacy as the holy grail for addressing climate change. The truth is, climate diplomacy has always been more about preening, posturing, and moralizing—about optics—above all else. What happened today was also all about optics (intentionally so) and that’s why greens committed to finding “diplomatic” solutions are pulling their hair out today.

But let’s not forget that Paris was a next-to-worthless agreement, and U.S. climate policy is going to look very much the same without it as it would have if Trump had announced a decision to stick to the deal. America’s real climate impacts will be determined by how quickly we can transition to a more energy efficient information economy and, more importantly, by our ability to develop and adopt new technologies (the pairing of hydraulic fracturing and horizontal well drilling being the most important example of the past decade). Paris had nothing to do with any of that.
But international agreements are so much better for people to beat their breasts over and pretend that they're doing something about the climate. And it provides such a handy hammer to beat opponents over the head with. That's what seems to be truly important to so many.

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And virtue signaling and symbolic optics are what liberals think is going to save the world.
But amid the outrage, the aggrieved still haven’t gotten around to resolving the central Paris contradiction, which is that it promises to be Earth-saving but fails on its own terms. It is a pledge of phony progress.

The 195 signatory nations volunteered their own carbon emission-reduction pledges, known as “intended nationally determined contributions,” or INDCs. China and the other developing nations account for 63% of annual global CO 2 emissions, and their share is rising. They submitted INDCs that pledged to peak the carbon status quo “around” 2030, and maybe later, or never, since Paris included no enforcement mechanisms to prevent cheating.

Meanwhile, the developed OECD nations—responsible for 55% of world CO 2 as recently as 2000—made unrealistic assurances that even they knew they could not achieve. As central-planning prone as the Obama Administration was, it never identified a tax-and-regulation program that came close to meeting its own emissions pledge of 26% to 28% reductions from 2005 levels by 2025.

Paris is thus an exercise in moral and social signaling that is likely to exert little if any influence on atmospheric CO 2 , much less on global temperatures. The Paris target was to limit the surface temperature increase to “well below” two degrees Celsius from the pre-industrial level by 2100. Researchers at the Massachusetts Institute of Technology’s Joint Program conclude that even if every INDC is fulfilled to the letter, the temperature increase will be in the range of 1.9–2.6 degrees Celsius by 2050, and 3.1–5.2 degrees Celsius by 2100.

Such forecasts are highly uncertain, which is inherent when scientists attempt to predict the future behavior of a system as complex as global climate. The best form of climate-change insurance is a large and growing economy so that future generations can afford to adapt to whatever they may confront.

A more prosperous society a century or more from now is a more important goal than asking the world to accept a lower standard of living today in exchange for symbolic benefits. Poorer nations in a world where 1.35 billion live without electricity will never accept such a trade in any case, while Mr. Trump is right to decline to lock in U.S. promises that make U.S. industries less competitive.

The surest way to “reject the future” is to burden the economy with new political controls today, because economic growth underwrites technological progress and human ingenuity....

All of which make the claims that the U.S. is abdicating global leadership so overwrought. Leadership is not defined as the U.S. endorsing whatever other world leaders have already decided they want to do, and the U.S. is providing a better model in any case. Private economies that can innovate and provide cost-effective energy alternatives will always beat meaningless international agreements. To the extent Paris damages economic growth, the irony is that it would leave the world less prepared for climate change.

Why are government regulations so pernicious? A new study explains why.
In fact, a new report estimated that if the costs of federal regulation flowed down to U.S. households, the average American family would pay $14,809 annually in a hidden regulatory tax. That's $14,809 in addition to income taxes, state taxes, and Social Security. $14,809 in addition to sales taxes, property taxes, and even estate taxes — where the government taxes you for being dead.

"That amounts to 21 percent of the average income of $69,629 and 26.45 percent of the expenditure budget of $55,978," wrote Clyde Wayne Crews, Jr., vice president for policy at the Competitive Enterprise Institute, in the report "Ten Thousand Commandments" released Wednesday.

The average American family would spend more on embedded regulation than on health care, food, transportation, entertainment, and apparel. Only housing costs more.
Unfortunately, few understand the impact of all those government regulations since the costs are hidden. But the impact is there in decreased economic growth.
Liberals and others would point out that no family specifically pays this price, and that is indeed true. But regulations hold back economic progress and make wealth creation harder to come by.

How many entrepreneurs give up on new business opportunities because it is too complicated to hire someone? How many small businesses fail because compliance costs exceed their profit margins? Then there are the increased costs to the larger firms which won't go out of business when the government adds red tape, but will make ordinary goods just that much more expensive.

Regulation is a silent killer, and it grows even when Americans didn't vote for it. In 2016, for example, Congress enacted only 214 laws, but federal agencies issued 3,853 rules. The lack of public accountability — when was the last time you voted for the EPA secretary? — means these bureaucrats aren't held accountable in the same way as members of Congress. So they can issue 18 rules for every law enacted by the people's representatives.

Kyle Sammin has an in-depth examination of how the liberal justices on the Supreme Court have flip-flopped on the degree to which states can use race when designing congressional districts. The Court used to rule that race could not be the main factor in designing districts. North Carolina's congressional map has been the basis of controversy and Supreme Court litigation since the 1990s. Read the whole analysis to see how the reasoning in the recent ruling is contrary to rulings in earlier cases.
The Constitution does not typically allow for dividing people on the basis of race. As discussed in the Shaw opinions and elsewhere, it is only allowed in congressional districting because of the history of black disenfranchisement, and even then is only permitted under certain strict conditions. One of these conditions is that the region’s white majority “must vote sufficiently as a bloc to usually defeat the minority’s preferred candidate.”

That’s quite a shift for the court’s four liberal justices. Four years ago, in Shelby County v. Holder, Kagan joined three other liberals on the court in dissenting from a ruling premised on that very proposition. In that case, five conservative justices struck down one section of the VRA because “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions.” The liberals, led by the redoubtable Justice Ruth Bader Ginsburg, joined in a fiery dissent stating that in 2013 the VRA “surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens.” By 2017, apparently it had.

This is funny, but accurate. Shannen W. Coffin lists all the reasons that Hillary has given for losing the elections...and the reasons she hasn't given.
We keep track, so you don’t have to:

1) Russia
2) Jim Comey
3) Misogyny
4) Fake News
5) WikiLeaks
6) Scott Walker
7) Wisconsin
8) Voter Suppression
9) The DNC
10) The widespread perception that she would win
11) Supporters who didn’t vote
12) The Media
13) Mikey, the Life Cereal kid
14) Facebook
15) Citizens United
16) Plagues of Locusts
17) Anthony Weiner
18) The New York Times
19) Bill’s dog ate her election
20) Bernie Sanders
21) Her campaign staff
22) Racism
23) Critics who fear her
24) Weaponized information
24 1/2) None of the following:

a) Email servers
b) Failing to campaign in Wisconsin
c) Paid Wall Street Speeches
d) “Basket of Deplorables”
e) Hillary Clinton

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Andrew Doyle writes on Spiked about how stupid the theory of cultural appropriation is and the pressure on whites not to write or paint or do anything that could be termed cultural appropriation. A children's author Anthony Horowitz tells of an editor that warned him against including black characters in his novels because a white author should be allowed to write about black characters.
As Horowitz points out, the ‘logical extreme’ of his editor’s advice would be to make all of his characters ‘62-year-old white Jewish men living in London’.
Doyle goes on to comment,
To accuse an artist of cultural appropriation is to betray a meagre understanding of the history of art, music and literature. It goes without saying that cross-cultural inspiration has always been a driving force behind artistic development. One need only visit the British Museum’s current exhibition on Japanese artist Hokusai (1760-1849) to appreciate the extent of his influence on European modernism. The same goes for popular culture. Few would deny that The Beatles owe much of their success to the precedent set by influential African-American musicians. And let’s not forget the Swedish band Rednex, whose chart-topping hit ‘Cotton Eye Joe’ is a paean to folk music of the American South, expressed through the medium of interminable European techno.
So why do so many progressives insist on reducing individuals to mere representatives of their particular demographic? The virtues of individualism, one of the many products of Enlightenment thinking, have been all but rejected by the braying knownothings of the liberal-left. They would much rather see people defined predominately by their race, gender and sexual orientation, as opposed to their own distinct qualities. Racists, misogynists and homophobes tend to adopt a similar approach.
The list of incidents of whites being chastised because they broached some invisible boundaries that keep getting redrawn.
The concept of cultural appropriation is the bastard child of identity politics. And by that I mean it’s an embarrassment to all involved and lacks any kind of legitimacy. Anthony Horowitz should be able to write about anyone or anything he likes. For all our differences, human beings share emotional and experiential commonalities that transcend the parameters of identity as defined and regulated by so-called ‘progressives’.