Tuesday, June 20, 2017

Identity Politics, 1947-2017

The Architecture of Regime Change

from the National Review
The ‘Resistance’ is using any and all means — lies, leaks, lawbreaking, and violence — to overturn the results of the 2016 election.

The problem with the election of President Donald J. Trump was not just that he presented a roadblock to an ongoing progressive revolution. Instead, unlike recent Republican presidential nominees, he was indifferent to the cultural and political restraints on conservative pushback — ironic given how checkered Trump’s own prior conservative credentials are. Trump brawled in a way McCain or Romney did not. He certainly did not prefer losing nobly to winning ugly.

Even more ominously, Trump found a seam in the supposedly invincible new progressive electoral paradigm of Barack Obama. He then blew it apart — by showing the nation that Obama’s identity-politics voting bloc was not transferrable to most other Democratic candidates, while the downside of his polarization of the now proverbial clingers most assuredly was. To her regret, Hillary Clinton learned that paradox when the deplorables and irredeemables of the formerly blue-wall states rose up to cost her the presidency.

And now? We are witnessing a desperate putsch to remove Trump before he can do any more damage to the Obama project. Political, journalistic, and cultural elites of a progressive coastal culture aim at destroying the Trump presidency before it can finish its full four-year term.

The branches of this insidious coup d’├ętat are quite unlikely anything our generation has ever witnessed.

I. Political and Judicial


a. Warping the Electoral College. As soon as Trump was elected, progressives mobilized to overturn the very architecture of the Electoral College. They organized efforts to persuade delegated electors not to vote according to their own state results — as they were legally or informally pledged to do so. Had the effort succeeded, it would have destroyed the entire constitutional notion of an Electoral College.

b. Challenging the 2016 Vote. Simultaneously, we saw another failed insurrectionary effort, through the stalking horse of failed leftist candidate Jill Stein, to sue on false grounds of voting-machine fraud that would have required recounts in three swing states that Trump won.

c. Delaying, Stalling, and gAccusin. Then Democrats in the Senate systematically delayed customary approval of dozens of key appointments of the newly inaugurated president. Obama holdovers such as Acting Attorney General Sally Yates sought to oppose Trump initiatives while political appointees such as Obama federal attorney Preet Bharara complained of inordinate pressures to step down. The normal assumption is that a new president appoints key federal officials of his own party; liberals abandoned this custom and depicted Trump’s staffing efforts as some sort of insurrectionary subversion of the federal government.

d. Recusal. Meanwhile, Democrats in Congress orchestrated false charges of “Russian collusion” against Trump himself, based on leaks of false information and fake-news stories, some of them originally orchestrated by Never Trump primary opponents and the Clinton campaign.

No evidence emerged of Trump’s culpability. But investigations were aimed at diverting attention from, and thereby stalling, the Trump legislative agenda. Again, the goal was driving his popularity ratings down to levels that would advance the cause of future impeachment should the Democrats ride the anti-Trump collusion hoaxes to midterm victory in the House.

An effective way to emasculate Trump was to demand recusals, supposedly due to some sort of hyper-partisanship on the part of Attorney General Jeff Sessions and House Intelligence Chairman Devin Nunes. No sooner had each agreed to step aside from some limited aspects of their investigations than Democrats insisted that their magnanimous recusals were both proof of guilt and yet too narrow — as they pressed on to seek recusals from ever more Trump White house officials.

e. The 25th Amendment. A few of the more desperate in the progressive resistance were calling for Trump to be removed due to supposed physical or mental incapacity — a trial balloon sent up that quickly imploded when only a few op-ed writers and fringe talking heads seconded the idea.

f. Justice-Shopping.
To stop Trump’s plan to temporarily suspend immigration from war-torn Middle Eastern nations unable to establish proper vetting procedures, attorneys and activists sought out liberal justices on the federal bench. Such judges in some cases extra-judiciously sought to cite Trump’s campaign statements as proof that his orders were unconstitutional, when the law did not provide them with the necessary progressive ammunition.

g. “The Resistance.” Democratic politicians and media figures announced that they had formed a “Resistance” to thwart all initiatives by Donald Trump. The nadir of this movement came when failed candidate Hillary Clinton announced that she too was officially enlisting — as if Trump were some sort of Hilterian or Vichy figure that required Hillary, as a freedom fighter of the Maquis, to metaphorically go up into the scrub with beret and Sten to ambush and harass.

h. “Special Investigator.”
The crown jewel in the Democratic efforts to overthrow the Trump administration was to replay, endlessly, the golden moment of Watergate. Here the playbook was to shout out so many purported transgressions — collusions, obstructions of justice, profiteering, etc. — that their sheer number would demand a special prosecutor, who through months of endless and always expanding inquiries could effectively enervate the Trump administration. By first demanding a special prosecutor, Democrats were able to negotiate downward to a special investigator. Former FBI head Robert Mueller —long a close friend to Trump nemesis James Comey — almost immediately staffed his team with a number of Democratic kingpins. And on cue, “unnamed sources” almost immediately leaked news of renewed and expanded investigations to the appropriate progressive papers.

i. Nullification.
Following the model of 1860s South Carolina, a number of states declared that Trump’s efforts to enforce federal immigration law were null and void within many of their own counties and cities. California went so far as to pass a bill in its Senate that blacklists any employer contracting with the federal government to complete the border wall. Governor Jerry Brown announced that he would be forging special climate-change agreements with foreign government — as if his state was a sovereign nation. Nullification was based on the premise that liberal progressivism trumped existing federal law — and that no conservative state or local jurisdiction would ever dare to employ the same extra-legal strategies to nullify federal progressive statutes.

j. Emoluments. A final rearguard effort brought lawsuits by various Democrats under the so-called emoluments clause found under Article 1 of the Constitution. Forbidding federal officials from receiving foreign titles, perks, and profits, the clause was originally intended to prevent the creation of an entrenched nobility. Democrats are suing Trump on charges that some overseas holdings of his business, now put in a trust, are unconstitutional and grounds for impeachment — although not in the sense that Bill and Hillary Clinton profited enormously via honoraria and cash payments to their foundation, while Hillary was secretary of state.

II. Media and Popular Culture

a. Fake News. At the same time of the political putsch, the mainstream media outlets, in particular the Washington Post, the New York Times, CNN, MSNBC, and the major networks, via broadcasts and social media, began an orchestrated campaign of defamation and delegitimization.

The crazier and more diverse the media mythologies, the better. Melania Trump was a former call girl and illegal alien. Ivanka Trump was peddling her business wares from the West Wing. Jared Kushner was a profiteering collusionist. Steve Bannon was a racist, Sebastian Gorka an unrepentant Nazi. Baron Trump was a spoiled, autistic child. The late elder Trump had run a racist campaign for mayor. And on and on.

Simultaneously, there were the daily Trump false buffoonery stories: Trump had screamed at the Australian prime minister. He had leaked Israeli intelligence. He had removed Martin Luther King’s bust from the White House. He greedily ate two ice-creams scoops while selfishly offering his guests only one.

Other fake chaos narratives added to the sense of presidential malpractice: Jeff Sessions was about to resign. So was his assistant, Rod Rosenstein. James Comey soon would announce to the Congress that Trump was under current FBI investigation. Steven Bannon was out. General Mattis was liable to quit. Trump threatened the Mexican president with an invasion. Trump was lying about sending carriers to the Korean coast. All false stories, but all useful to the regime-change narrative.

The media’s opinion journalists grew unhinged. Even the past scandals of JournoList and the 2016 WikiLeaks troves — which exposed collusion between the media, the DNC, and the Clinton campaign — did not prepare us for what followed after the election. Journalists Jim Rutenberg, Christiane Amanpour, and Jorge Ramos, among others, insisted that the president did not deserve unbiased news coverage but rather orthodox hostility from journalists who were impatient with the slow progress of the Democrats’ Resistance efforts.

The daily fare of major media columnists and anchors exclaimed that Trump was either inept, criminal, or traitorous, and therefore he should summarily resign, face trial, or be impeached.

b. Scatology and Obscenity.
Democratic politicians as well as celebrities felt that by customarily employing crude language and scatology, they could mobilize the base, blame the new uncouth environment on Trump (who deserved such an obscene counterpunch), and lower the bar even further for more attacks.

So Democratic grandees such as DNC chairman Tom Perez, would-be Obama 2.0 candidate Senator Kamala Harris, or New York’s Senator Kirsten Gellibrand routinely began using “f***” and “s***” in efforts to arouse and coarsen. The implication was that Trump’s ascendance had ruined political discourse by forcing formerly sober and judicious politicians like themselves to lower themselves in kind. A New Republic author cheered the politicians on and demanded even more scatology.

CNN’s Anderson Cooper insulted a Trump supporter by saying he’d slavishly defend Trump even if Trump deposited feces on his desk. Politico’s Julia Joffe suggested that Trump had committed incest with his daughter. Bill Maher went graphic by envisioning father and daughter engaged in oral sex. Steven Colbert thundered that Trump was a routine fellator of Vladimir Putin. The cruder the allusion, the higher the standing of the slanderer in the Resistance — again creating a landscape in which a president guilty of the worst sorts of crimes against nature should logically deserve#….#what next, exactly?

c. Assassination Chic. So far, we have heard that Snoop Dogg wants to shoot an effigy of Trump in the head. Comedian Kathy Griffin dreams of beheading him. A New York Shakespearean troupe night after night stabs an iconic Trump into a bloody pulp, Caesarian style, cheered on by the thrilled audience. Madonna dreams of blowing Trump up, along with everyone else in the White House.

Actor Robert de Niro will settle for battering his face. Mickey Rourke prefers a club. Martha Stewart is content with flipping him off, while flashing the V-sign to a heroic assassination cultist Snoop Dogg. A writer for the Huffington Post demands Trump’s trial and execution. Even near my home at the CSU Fresno campus, a history professor has openly called for Trump to be hanged while a colleague at the Hoover Institution mused that Trump could be removed by a murder in the White House.

Yet where does one go after rhetorical killing becomes commonplace and the vocabulary of death is exhausted? We almost had our answer last week, with the planned targeted assassinations of Republican members of Congress.

d. Burn, Storm, and Disrupt. Campuses, from Middlebury to UC Santa Cruz, from Berkeley to Claremont, are on fire. Taking their street cue from the Resistance, they now have all but abolished the right of free speech on campus, lawful assembly, and nonviolent protest. At first, careerist campus presidents sought to channel the violence profitably into the larger Trump Resistance. Now their Frankenstein monster threatens to swallow its academic parent. All the while, the subtext of the campus meltdown is $1 trillion in student debt, millions of students unable to do basic college work, and no job guarantees for indebted graduates with worthless therapeutic degrees.

III. Will These Efforts to Remove Trump Work?

Not if he can mobilize the Congress to pass health care and tax reform and give the nation a sense of political momentum, to add to his already substantial executive orders. A 3 percent annual economic growth rate would silence a lot of shrill voices, as would the restoration of U.S. deterrence abroad without the step of invading a Middle East country.

To create a sense of political deterrence, the Congress should call in former Obama attorney general Loretta Lynch to explain to the nation why she sought to massage and impede an ongoing FBI investigation, and why she met — secretly — with the husband of Hillary Clinton, who was then under investigation.

Why is James Comey to be exempt from violating FBI protocols and perhaps federal statutes by leaking a privileged government document to the press, and why did he allow his agency to be manipulated by the former attorney general? No one has adequately explained how Bill Clinton freely and with exemption warped his wife’s office of secretary of state to rake in donations to the family foundation and honoraria for himself.

The House investigations of the improper surveillance, unmasking, and leaking by the Obama administration should accelerate.

Anyone, celebrities included, who talks of maiming or killing the president of the United States should be put on a terrorist no-fly list for six months.

There is an easy standard of acceptable public discourse: If the same violent rhetoric were directed at Barack Obama, would it have been acceptable? (Recall that Obama jailed a YouTube video maker for an inconvenient film, and had political opponent Dinesh D’Souza sent to prison on an inflated campaign-donation violation.)

For now, the Democrats and the progressive movement cannot find ways to oppose Donald Trump through traditional political means either in the Congress or through the ballot box. They have resorted to an any-means-necessary effort to dehumanize Trump and politically emasculate him before the 2020 election.

Unfortunately, the logical succession to such progressive political hate speech, and assassination-wishing, is still more political violence of the sort we saw last week.

And this is only the beginning.

Chomsky on Neoliberalism

Grand Guru on the Left

Saturday, June 17, 2017

Third Party Realities...

...or why Trump has so many enemies

"Resistance" Summer

Wanna see a Moslem begin to incite "useful idiots" to violence/terror?
Protest is when I say this does not please me. Resistance is when I ensure what does not please me occurs no more.
- Ulrike Meinhof, “Vom Protest zum Widerstand” [“From Protest to Resistance”], konkret, no. 5 (May 1968), p. 5
Ulrike Meinhof (7 October 1934 – 9 May 1976) was a German radical left-wing militant who started out as a journalist. She was one of the founders of the Red Army Fraction (in German: Rote Armee Fraktion), also known as the Baader-Meinhof Gang.
From Street Protests to Resistance (aka "Terrorism"). THIS is what it means today to be Progressive!

Wednesday, June 14, 2017

Democrats Move from Snuff Porn...to Snuff ACTS... in a Matter of Days

Schadenfreude?... or RESISTANCE?
“Protest is when I say I don't like this. Resistance is when I put an end to what I don't like. Protest is when I say I refuse to go along with this anymore. Resistance is when I make sure everybody else stops going along too.”
― Ulrike Marie Meinhof (German Red Army Faction Terrorist)

Democrats Move from Scandal Porn to Snuff Porn w/Trump Derangement Syndrome

from American Thinker
Fareed Zakaria, for better or worse, is generally considered a man on the housebroken side of the left. He's the establishment, the kind of leftist who goes to conferences and opines deep thoughts. He's not the street thug, cyber-goon, or rabid foul-mouthed late-night comedy mess-on-the-carpet side of the left.

But even Zakaria has now fallen to the bloodlust against President Trump prevalent on the left, tweeting:
If you're in NYC, go see Julius Caesar, free in Central Park, brilliantly interpreted for Trump era. A masterpiece: https://t.co/RiJJnW3g8V

— Fareed Zakaria (@FareedZakaria) May 31, 2017
Having failed to prevent the election of Donald Trump, having failed to prove Russia collusion allegations against him, having failed to impeach him – the left is now turning to assassination fantasies, some say in the hope of getting one deranged lunatic to act on them. It started early, grew prominent with late-night comedian Kathy Griffin's beheading stunt, and has since moved on to the highbrow theatre crowd, the same people who had a cow when Vice President Pence went to see a production of Hamilton. The highbrows have opted to stage Shakespeare's Julius Caesar in Central Park with a Trump-like figure playing the role of the assassinated Roman consul who made himself dictator.

It probably could work as a sort of art – but not with this crowd doing it. As the postmoderns say, context is everything. The context here is that we all know that the left hates Trump. We all know they haven't gotten over the election. We all know they are still stewing as if it happened yesterday. And we all know what they really want.

So we know what they have in mind with this assassination shtick, which has cause numerous sponsors to pull out, not wanting to get sued if some nut tries to act on what the play seems to be encouraging.

But as for the left itself, if it's not assassination they are advocating, it's another revolting phenomenon: what Tom Wolfe called "pornoviolence" back in 1967, when he discussed the media's fascination with looping footage of the 1963 assassination of President Kennedy "to watch some guy get his head blown off," as I recall. The Washington Post discussed the phenomenon in 2013:

Tom Wolfe, an essential chronicler of the '60s, called the assassination "the prologue to America's season of violence" – indeed, a new "pornoviolence," in which images and narratives of death were incessantly repeated, hardening Americans against pain.

The TV networks, he wrote in 1967, "schooled us in the view from Oswald's rifle and made it seem a normal pastime." From then on, he argued, the center of the story, in news and entertainment programs, was not so much the hero but the aggressor, with gory details becoming the driving force of the narrative.

Sound like today's anti-Trump left to you?

With that analysis, it would point to a shift away from Trump in any sort of hero role in the press, replaced with the left's dark descent into an aggressor-focused "narrative." Any aggressor against Trump, no matter how foul, will becomes the left's loving focus, its hero, the center of its narrative. So even as Caesar is stabbed in a play, the left cheers. The left's aim seems to be to keep that drumbeat rolling as a means of eventually getting what it wants, using some lunatic if necessary.

What's more, the left tries to escape responsibility for its own base instincts. Variety reports that the play depicts baying "mobs" of Trump voters as the most dangerous elements, not the actual assassins, in its appropriation of Shakespeare's play.

It's a grotesque thing, signaling that if anything, the left is out of ideas and has gone bone-dry on any pretense to morality. Fareed Zakaria's endorsement of this shows just how far the rot has spread. If the left can't check itself, we are in for dark days ahead. The template is out there.

Monday, June 12, 2017

Remember When the Newspapers Were Dying?

What BETTER way to reverse their fortunes?

Pope Francis on the Media's "Scandal Porn" Frenzy

from USA Today
Pope Francis joined the chorus of condemnation of media organizations that spread disinformation and compared their focus on "ugly things" to one of the more unsavory fetishes.

Francis said, although positive "in themselves," communications media can be harmful and used to slander people, "especially in the world of politics," during an interview Wednesday with the Belgian Catholic weeklyTertio. He added that anyone who uses means of communication to defame someone is committing a sin.

His comments came amid growing controversy over "fake news" — including one involving him: a false report online that he had endorsed Donald Trump.

Hillary Clinton cites ‘fake news’ as urgent threat to democracy

"A thing that can do great damage to the information media is disinformation: that is, faced with any situation, saying only a part of the truth, and not the rest," Francis said.

"Disinformation is probably the greatest damage that the media can do, as opinion is guided in one direction, neglecting the other part of the truth," he said. "I believe that the media should be very clear, very transparent, and not fall prey — without offense, please — to the sickness of coprophilia, which is always wanting to communicate scandal, to communicate ugly things, even though they may be true. And since people have a tendency towards the sickness of coprophagia, it can do great harm."

Merriam-Webster defines coprophilia as a "marked interest in excrement, especially the use of feces or filth for sexual excitement." And coprophagia? That's people who eat feces.

Sunday, June 11, 2017

The Deep State Blues

Government by unelected experts isn’t all that different from the ‘royal prerogative’ of 17th-century England, argues constitutional scholar Philip Hamburger.
By John Tierney
From the WSJ
What’s the greatest threat to liberty in America? Liberals rail at Donald Trump’s executive orders on immigration and his hostility toward the press, while conservatives vow to reverse Barack Obama’s regulatory assault on religion, education and business. Philip Hamburger says both sides are thinking too small.

Like the blind men in the fable who try to describe an elephant by feeling different parts of its body, they’re not perceiving the whole problem: the enormous rogue beast known as the administrative state.

Sometimes called the regulatory state or the deep state, it is a government within the government, run by the president and the dozens of federal agencies that assume powers once claimed only by kings. In place of royal decrees, they issue rules and send out “guidance” letters like the one from an Education Department official in 2011 that stripped college students of due process when accused of sexual misconduct.

Unelected bureaucrats not only write their own laws, they also interpret these laws and enforce them in their own courts with their own judges. All this is in blatant violation of the Constitution, says Mr. Hamburger, 60, a constitutional scholar and winner of the Manhattan Institute’s Hayek Prize last year for his scholarly 2014 book, “Is Administrative Law Unlawful?” (Spoiler alert: Yes.)

“Essentially, much of the Bill of Rights has been gutted,” he says, sitting in his office at Columbia Law School. “The government can choose to proceed against you in a trial in court with constitutional processes, or it can use an administrative proceeding where you don’t have the right to be heard by a real judge or a jury and you don’t have the full due process of law. Our fundamental procedural freedoms, which once were guarantees, have become mere options.”

In volume and complexity, the edicts from federal agencies exceed the laws passed by Congress by orders of magnitude. “The administrative state has become the government’s predominant mode of contact with citizens,” Mr. Hamburger says. “Ultimately this is not about the politics of left or right. Unlawful government power should worry everybody.”

Defenders of agencies like the Securities and Exchange Commission or the Environmental Protection Agency often describe them as the only practical way to regulate today’s complex world. The Founding Fathers, they argue, could not have imagined the challenges that face a large and technologically advanced society, so Congress and the judiciary have wisely delegated their duties by giving new powers to experts in executive-branch agencies.

Mr. Hamburger doesn’t buy it. In his view, not only is such delegation unconstitutional, it’s nothing new. The founders, far from being naive about the need for expert guidance, limited executive powers precisely because of the abuses of 17th-century kings like James I.

James, who reigned in England from 1603 through 1625, claimed that divinely granted “absolute power” authorized him to suspend laws enacted by Parliament or dispense with them for any favored person. Mr. Hamburger likens this royal “dispensing” power to modern agency “waivers,” like the ones from the Obama administration exempting McDonald’s and other corporations from complying with provisions of the Affordable Care Act.


James also made his own laws, bypassing Parliament and the courts by issuing proclamations and using his “royal prerogative” to establish commissions and tribunals. He exploited the infamous Star Chamber, a court that got its name from the gilded stars on its ceiling.

“The Hollywood version of the Star Chamber is a torture chamber where the walls were speckled with blood,” Mr. Hamburger says. “But torture was a very minor part of its business. It was very bureaucratic. Like modern administrative agencies, it commissioned expert reports, issued decrees and enforced them. It had regulations controlling the press, and it issued rules for urban development, environmental matters and various industries.”

James’s claims were rebuffed by England’s chief justice, Edward Coke, who in 1610 declared that the king “by his proclamation cannot create any offense which was not an offense before.” The king eventually dismissed Coke, and expansive royal powers continued to be exercised by James and his successor, Charles I. The angry backlash ultimately prompted Parliament to abolish the Star Chamber and helped provoke a civil war that ended with the beheading of Charles in 1649.

A subsequent king, James II, took the throne in 1685 and tried to reassert the prerogative power. But he was dethroned in the Glorious Revolution in 1688, which was followed by Parliament’s adoption of a bill of rights limiting the monarch and reasserting the primacy of Parliament and the courts. That history inspired the American Constitution’s limits on the executive branch, which James Madison explained as a protection against “the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.”

“The framers of the Constitution were very clear about this,”
Mr. Hamburger says, rummaging in a drawer for a pocket edition. He opens to the first page, featuring the Preamble and Article 1, which begins: “All legislative Powers herein granted shall be vested in a Congress.”

“That first word is crucial,” he says. “The very first substantive word of the Constitution is ‘all.’ That makes it an exclusive vesting of the legislative powers in an elected legislature. Congress cannot delegate the legislative powers to an agency, just as judges cannot delegate their power to an agency.”

Those restrictions on executive power have been disappearing since the late 19th century, starting with the creation of the Interstate Commerce Commission in 1887. Centralized power appealed to big business—railroads found commissioners easier to manipulate than legislators—as well as to American intellectuals who’d studied public policy at German universities. Unlike Britain, Germany had rejected constitutional restraints in favor of a Prussian model that gave administrative agencies the prerogative powers of the king.

Mr. Hamburger believes it’s no coincidence that the growth of America’s administrative state coincided with the addition to the electorate of Catholic immigrants, blacks and other minorities. WASP progressives like Woodrow Wilson considered these groups an obstacle to reform.

“The bulk of mankind is rigidly unphilosophical, and nowadays the bulk of mankind votes,” Wilson complained, noting in particular the difficulty of winning over the minds “of Irishmen, of Germans, of Negroes.” His solution was to push his agenda using federal agencies staffed by experts of his own caste—what Mr. Hamburger calls the “knowledge class.” Wilson was the only president ever to hold a doctorate.


“There’s been something of a bait and switch,” Mr. Hamburger says. “We talk about the importance of expanding voting rights, but behind the scenes there’s been a transfer of power from voters to members of the knowledge class. A large part of the knowledge class, Republicans as well as Democrats, went out of their way to make the administrative state work.”

Mr. Hamburger was born into the knowledge class. He grew up in a book-filled house near New Haven, Conn. His father was a Yale law professor and his mother a researcher in economics and intellectual history. During his father’s sabbaticals in London, Philip acquired a passion for 17th-century English history and spent long hours studying manuscripts at the British Museum. That’s where he learned about the royal prerogative.

He went to Princeton and then Yale Law School, where he avoided courses on administrative law, which struck him as “tedious beyond belief.” He became slightly more interested during a stint as a corporate lawyer specializing in taxes—he could see the sweeping powers wielded by the Internal Revenue Service—but the topic didn’t engage him until midway through his academic career.

While at the University of Chicago, he heard of a colleague’s inability to publish a research paper because the study had not been approved ahead of time by a federally mandated institutional review board. That sounded like an unconstitutional suppression of free speech, and it reminded Mr. Hamburger of those manuscripts at the British Museum.

Why the return of the royal prerogative? “The answer rests ultimately on human nature,” Mr. Hamburger writes in “The Administrative Threat,” a new short book aimed at a general readership. “Ever tempted to exert more power with less effort, rulers are rarely content to govern merely through the law.”

Instead, presidents govern by interpreting statutes in ways lawmakers never imagined. Barack Obama openly boasted of his intention to bypass Congress: “I’ve got a pen and I’ve got a phone.” Unable to persuade a Congress controlled by his own party to regulate carbon dioxide, Mr. Obama did it himself in 2009 by having the EPA declare it a pollutant covered by a decades-old law. (In 2007 the Supreme Court had affirmed the EPA’s authority to do so.)

Similarly, the Title IX legislation passed in 1972 was intended mainly to protect women in higher education from employment discrimination. Under Mr. Obama, Education Department bureaucrats used it to issue orders about bathrooms for transgender students at public schools and to mandate campus tribunals to adjudicate sexual misconduct—including “verbal misconduct,” or speech—that are in many ways less fair to the accused than the Star Chamber.

At this point, the idea of restraining the executive branch may seem quixotic, but Mr. Hamburger says there are practical ways to do so. One would be to make government officials financially accountable for their excesses, as they were in the 18th and 19th centuries, when they could be sued individually for damages. Today they’re protected thanks to “qualified immunity,” a doctrine Mr. Hamburger thinks should be narrowed.

“One does have to worry about frivolous lawsuits against government officers who have to make quick decisions in the field, like police officers,” he says. “But someone sitting behind a desk at the EPA or the SEC has plenty of time to consult lawyers before acting. There’s no reason to give them qualified immunity. They’ll be more careful not to exceed their constitutional authority if they have to weigh the risk of losing their own money.”

Another way of restraining agencies—one President Trump could adopt on his own—would be to require them to submit new rules to Congress for approval instead of imposing them by fiat. The president could also order at least some agencies to resolve disputes in regular courts instead of using administrative judges, who are departmental employees. Meanwhile, Congress could reclaim its legislative power by going through regulations, agency by agency, and deciding which ones to enact into law.

Mr. Hamburger’s chief hope for reform lies in the courts, which in earlier eras rebuffed the executive branch’s power grabs. Those rulings so frustrated both Theodore Roosevelt and Franklin D. Roosevelt that they threatened retaliation—such as FDR’s plan to pack the Supreme Court by expanding its size. Eventually judges surrendered and validated sweeping executive powers. Mr. Hamburger calls it “one of the most shameful episodes in the history of the federal judiciary.”

The Supreme Court capitulated further in decisions like Chevron v. Natural Resources Defense Council (1984), which requires judges to defer to any “reasonable interpretation” of an ambiguous statute by a federal agency. “Chevron deference should be called Chevron bias,” Mr. Hamburger says. “It requires judges to abandon due process and independent judgment. The courts have corrupted their processes by saying that when the government is a party in case, they will be systematically biased—they will favor the more powerful party.”

Mr. Hamburger sees a good chance that the high court will limit and eventually abandon the Chevron doctrine, and he expects other litigation giving the judiciary a chance to reassert its powers and protect constitutional rights. “Slowly, step by step, we can persuade judges to recognize the risks of what they’ve done so far and to grapple with this very dangerous type of power,” he says. The judiciary, like academia, has many liberals who have been sympathetic to the growth of executive power, but their perspective may be changing.

“Administrative power is like off-road driving,” Mr. Hamburger continues. “It’s exhilarating to operate off-road when you’re in the driver’s seat, but it’s a little unnerving for everyone else.”

He says he observed this effect during a recent conversation with a prominent legal scholar. The colleague, a longtime defender of administrative law, was discussing the topic shortly after Mr. Trump’s inauguration.

The colleague told Mr. Hamburger: “I am beginning to see the merit of your ideas.”

Tuesday, June 6, 2017

Timshel

"...this was the gold from our mining: 'Thou mayest.' The American Standard translation orders men to triumph over sin (and you can call sin ignorance). The King James translation makes a promise in 'Thou shalt,' meaning that men will surely triumph over sin. But the Hebrew word timshel'Thou mayest'—that gives a choice. For if 'Thou mayest'—it is also true that 'Thou mayest not.' That makes a man great and that gives him stature with the gods, for in his weakness and his filth and his murder of his brother he has still the great choice. He can choose his course and fight it through and win."
- John Steinbeck, "East of Eden"