The "Diversity" Follies, Gender Edition

It's been a while since I've waded into the circus known as "diversity."  (One of my most popular all-time posts is one from June 2014 titled "Is Lack Of 'Diversity' At Big Law Firms A Crisis?")  But with the recent affair at Google all over the news, I can't resist returning to the topic.

If you haven't read the now-famous memo by Google engineer James Damore that ultimately got him fired, it is here.  Try reading it and see if you can figure out what he said that was so offensive.  The statement from Google CEO Sundar Pichai asserted that Damore had crossed “the line by advancing harmful gender stereotypes in our workplace.”  OK, can you quote which words of Damore you say crossed that line?  Not that I can find, either in that statement or anywhere else.

Damore's central point is that the proportionate under-representation of women in the ranks of Google employees could be explained by some combination of lower average population-wide aptitude and/or interest in what Google does among women than among men, as opposed to the accepted hypothesis of some combination of discrimination and/or oppression:  

I’m simply stating that the distribution of preferences and abilities of men
and women differ in part due to biological causes and that these differences may explain why
we don’t see equal representation of women in tech and leadership. 

Is that statement really so beyond the pale that it absolutely cannot be said in politically-correct Silicon Valley?  Those with long memories may notice the remarkable resemblance of Damore's hypothesis to the remarks of then-Harvard President Larry Summers that got him fired from that job back in 2005.  Here's an excerpt from Summers:

It does appear that on many, many different human attributes -- height, weight, propensity for criminality, overall IQ, mathematical ability, scientific ability -- there is relatively clear evidence that whatever the difference in means -- which can be debated -- there is a difference in the standard deviation, and variability of a male and a female population. And that is true with respect to attributes that are and are not plausibly, culturally determined.

Or maybe Damore's even bigger sin was pointing out that Google, in its efforts to increase "diversity," was engaging in systematic overt gender and racial discrimination:

[T]o achieve a more equal gender and race representation, Google has created several
discriminatory practices:
● Programs, mentoring, and classes only for people with a certain gender or race.
● A high priority queue and special treatment for “diversity” candidates. . . .  

Not to mention that Google has an entire department dedicated to increasing the "diversity" in its work force.  And with all that, what are the results?  Here is a summary of Google's own "Diversity Report" for 2016.  Women as a percentage of the workforce are 31%, but in "technical roles" only 20%.  Blacks are only 2% of the Google work force, and Latinos 4%.  (Wow -- no major law firm could get away with those numbers!)  Asians, of course, are way over-represented at 35% of the work force.

I for one am completely prepared to believe that the reason for Google's failure to hire and retain women and minorities is systematic racial and gender discrimination and oppression.  After all, there must be some good reason for the widespread sense of guilt and self-loathing among Google's executives.

On the other hand, one might look to circumstances where no one is doing any "hiring," and women and men are completely free to choose what they want to do without any force or coercion.  How about selection of college majors?  In an August 15 piece at Front Page, Walter Williams cites a few data points from a study by the Federal Reserve Bank of New York:

[T]hough women and men are equally represented in the population at large, women make up only 17 percent of engineering degrees conferred compared to 83 percent conferred to men. . . .   Seventy-seven percent of education majors are women and so are 64 percent of social sciences majors.

How exactly is Google -- or any other tech company -- supposed to get to 50% of its software engineers being women, when the percentage of women in the engineering major in college is less than 20%?

On a similar note, Megan McArdle of Bloomberg tells a personal story of her own exit from a high-tech job.  The bottom line is that she recognized that she just wasn't interested enough to be able to compete at the highest level:

I came into work one Monday morning and joined the guys at our work table, and one of them said “What did you do this weekend?”  I was in the throes of a brief, doomed romance. I had attended a concert that Saturday night. I answered the question with an account of both. The guys stared blankly. Then silence. Then one of them said: “I built a fiber-channel network in my basement,” and our co-workers fell all over themselves asking him to describe every step in loving detail.  At that moment I realized that fundamentally, these are not my people. I liked the work. But I was never going to like it enough to blow a weekend doing more of it for free. Which meant that I was never going to be as good at that job as the guys around me.

I'm not claiming to have the complete explanation for why women are such a small percentage of the technical staff at tech companies.  There can be many different factors at play.  But I do know that we're never going to get a better understanding of the reasons if reasonable hypotheses are arbitrarily excluded from the discussion on the basis of ideology.  

The Greatest Scientific Fraud Of All Time -- Part XVII

Just keep your eyes open for more and more examples of tampering with and manipulation of the world temperature record to enhance the "global warming" narrative, and it seems that you will have no problem coming up with an endless supply.  One of the best recent examples comes from Australia.  

Australia is blessed with a small band of sharp-eyed skeptics who have made a mission out of trying to keep their crooked government bureaucrats honest.  Two of the leading lights are Jennifer Marohasy and Joanne Nova.  As Marohasy states in a recent post, "I suffer . . . from a propensity to always check things."  So back in early July, Marohasy was checking on some very cold readings recorded in the mountains of Australia -- readings colder than -10 deg C, which is the same as 14 deg F.  (Remember that July is winter in Australia,)  And she stumbled on the fact that, somewhere along the line, the Australian Bureau of Meteorology had put in place some supposed "quality control" technology in their weather stations that would automatically reject valid low temperature readings as spurious.  As reported by Marohasy on July 5:

[W]hen the weather station at Goulburn recorded -10.4 on Sunday morning – the Bureau’s ‘quality control system’, ‘designed to filter out spurious low or high values’ reset this value to -10.0.  To be clear, the actual measured value of -10.4 was ‘automatically adjusted’ so that it recorded as -10.0 in the key CDO dataset.

Huh?  By the way, if 0.4 deg C does not sound like a lot to you, remember that our temperature overlords regularly declare with the loudest possible megaphone that new world temperature records have been set by amounts well less than 0.1 deg C.

When pressed by Marohasy, the BoM acknowledged that it had installed an automated system that rejected temperatures at that location as spurious whenever they went below -10 deg C, even though temperatures below that level had previously been recorded at that location on multiple occasions.  Here is the text of an email received by Marohasy from the BoM:

The correct minimum temperature for Goulburn on 2 July, 2017 is -10.4 recorded at 6.30am at Goulburn Airport AWS… The Bureau’s quality control system, designed to filter out spurious low or high values was set at -10 minimum for Goulburn which is why the record automatically adjusted.   

Do you think that they would then promptly fix things?  Wrong.  A couple of weeks later, on July 16, Marohasy caught another example of the same thing at a station called Thredbo.  Again, a reading of -10.4 deg C (of which Marohasy took a screen shot that you can see at the link) had been caused to disappear within a couple of days, this time replaced with a new supposed minimum reading for July 2017 0f -9.6 deg C.

Joanne Nova -- who has partnered with Marohasy and others to form a BoM "audit team" -- asked a series of pertinent questions in a July 5 post:

[T]his opens a whole can of worms in so many ways — what are these “limits”, do they apply equally to the high side records, who set them, how long has this being going on, and where are they published? Are the limits on the high temperatures set this close to previously recorded temperatures? How many times have raw records been automatically truncated? 

Now almost a month has passed, and there are no answers coming out of the BoM.  Oh, except for one thing.  In a press release on August 1, the BoM reported July 2017 to be the "warmest" on record in several respects:

• Record warmth in northern Australia, dry in much of the south
• Warmest July maximum temperatures on record nationally, and for Queensland, Northern Territory and Western Australia

I guess it's easy to make each month successively the "warmest" if you get to eliminate all the coldest recorded temperatures from the average.  As usual, their press release contains no mention whatsoever of the controversy over elimination of the coldest temperatures, let alone any explanation of justification for what they are doing.  These people have no shame at all. 

To read the sixteen prior posts in this series, go to this link.

To The Progressive, Everything That Happens In Urban America Is Bad

After my post from Tuesday ("How Progressives See New York"), I was hoping that the New York Times would immediately realize how laughable it appears to rational people when it discusses these issues.  But no, as if in complete ignorance of my ridicule of their world view (admittedly as expressed in an article in the New Republic), they immediately came back with a piece in yesterday's print edition titled "A Revival Comes to Newark, but Some Worry It’s ‘Not for Us.’"  The piece is about a big new Whole Foods market that recently opened in New Jersey's formerly most economically-depressed place, Newark.  

Before this, probably for the last decade or more, you probably have read a few dozen or so articles, many of them in the Times, bemoaning that poor black neighborhoods and cities had become "food deserts," where supermarkets had disappeared, and thus it was impossible to obtain anything nutritious to eat.  The residents were forced to eat some combination of fast food and chips and sugared sodas and their health got ruined.  Usually, the overarching narrative was that this was all part of the oppression of the low income minority groups by the dominant white culture, or something like that.  So therefore, surely the arrival of a Whole Foods must be good news for Newark?  Don't be ridiculous!

I would write my own take down of the Times piece, but fortunately Kyle Smith, writing at National Review, already did it for me.  Excerpt:

[A] New York Times piece this week headlined with a lament from one [Newark] resident that Whole Foods, which opened its Newark branch in late winter, is “not for us.”  Newark’s population is only one-fourth white, and it seems obvious that the sentiment being expressed here, as well as the use of the word “gentrification,” are what in other contexts might be called “racial dog whistles" . . . .

Let’s recap the slate of urban worries on the left. “Food deserts,” meaning a lack of availability of fresh food (or a lack of market demand for it), are bad. The opening of a gigantic store dedicated to selling healthy comestibles and produce, though, is also bad. When large corporations don’t invest in urban communities, that’s shameful. Investment? Also shameful. White flight by people moving to suburbs in the 1960s? Racist. Their grandchildren’s return? Also racist. Increased disorder that leads to garbage-strewn vacant lots, abandoned buildings, and declining property values is troubling, but increased order that leads to refilled buildings, cleaned-up neighborhoods, and rising rents is also troubling. Segregation? Bad. Integration? Bad.

So literally everything is bad, and its opposite is also bad.  And not just any kind of bad.  As Smith correctly points out, everything is the worst kind of bad -- racist!  And its opposite is also racist.  Try to not be a racist by following progressive prescriptions and doing the opposite of what you were previously doing, and you've just become an even worse racist.  The more you consider how people can hold all of these conflicting beliefs at the same time, the more you realize that rational thought has nothing to do with it.  My own leading hypothesis is that the phenomenon stems from an all-consuming irrational sense of guilt.  Or, as one commenter on my previous piece called it, "self-loathing."

For myself, I marvel every day at how much better things have become here in New York City in the 40+ years since I moved here in 1975.  And that goes for all races and ethnic groups.  I've been compiling a short list, which could be expanded to as long as you would like:

• In 1975 there were 1645 murders in New York City (about 22 per 100,000).  In 2016 there were 335 murders with a bigger population (less than 4 per 100,000).  Declines in other crimes have been comparable.
• In 1975, the City's population was in rapid and alarming decline.  (It fell by about 800,000, or about 10%, between the 1970 and 1980 censuses, to barely over 7 million.)  Today the population is about 8.5 million and growing nicely.  People have an optimistic sense that this is a good place to make a living.
• As a corollary of the declining population, big parts of the City in 1975 were experiencing abandonment, arson, and destruction of the housing stock.  It was the time of "Fort Apache, the Bronx."  Today, all of the areas that saw abandonment and destruction then are having new construction, mostly not subsidized.
• In 1975 if you walked around the streets of Greenwich Village in the morning, you would see several piles of little beads of automobile glass, where someone had smashed a car window in the middle of the night to steal the radio or other equipment out of the car.  I haven't seen any of that for a decade or more.
• In 1975 there were signs at the housing office at NYU warning students not to try living east of First Avenue.  More broadly, wide swaths of North Brooklyn, the South Bronx, and Harlem and the East Village in Manhattan, were widely known as places where white people just should not go.  That broad fear is now long gone.
• In 1975 the Greenwich Village waterfront was abandoned and decrepit.  Today it is a beautiful park.
• In 1975, all but a few residential buildings in Greenwich Village were rent-controlled apartments.  The buildings clearly had once been beautiful, but most of them were run-down.  No owner would invest a dime in them, because the rents did not justify investment, and could not be raised.  And if you went looking for an apartment, literally nothing was available.  (I later learned that you had to go building-to-building and offer bribes to the superintendents, and suddenly there would be availability.  But I never did that myself.)  Today, there are many more owner-occupied buildings (townhouses, condos, co-ops) and about half of the remaining rental apartments have been freed from the rent-regulation system.  Yes, it's expensive, but there is plenty of availability at market prices.  Every block has multiple renovation and upgrade projects going on.
• In 1975 subway ridership was declining alarmingly, reaching barely over 1 billion annual riders that year, which was less than half of the peak in the late 1940s.  Today, subway ridership is over 1.8 billion per year and approaching that 1940s peak (which is not completely comparable because some elevated lines were taken down in the interim).
• In 1975, as a young associate at a law firm, I regularly went home on the subway in the late evening, sometimes midnight or later.  It was extremely noticeable that there were no, and I mean no, women riding the subway after about 8 PM.  Today, you find women on the subway at all hours.
• In 1975 there was literally no new construction going on in Greenwich Village, and similarly in almost all of the rest of the City.  (The Upper East Side was a limited exception.)  Today, we have many new high-end condos going up.  Most of my neighbors are horrified.  I cannot figure out why.
• With more ownership and more people having a stake in the neighborhood, today we have far more in the way of gardens, flowers, well-cared-for trees, and other beautification of the streets and the environment than we had back in the 70s.  The parks are in far better condition -- a consequence of the City government having more revenue, resulting from the influx of new businesses and wealthier residents.

And this could go on.  We get to choose whether we enjoy our new and greatly improved circumstances, or whether we wallow in irrational self-loathing.  I know where I come down.

How Progressives See New York

It's been a while since I have written about what progressives see when they look at New York.  But Maggie's Farm this morning gives a pointer to an article in the current New Republic that is an extreme example of the genre.  The article, by Amy Rose Spiegel, is titled "Who Killed New York City?".  Spiegel's piece is actually a review of two books -- "Vanishing New York" by Jeremiah Ross, and "Arbitrary Stupid Goal" by Tamara Shopsin.  Perhaps I should mention that an uncle of Ms. Shopsin's is a near neighbor of mine in Greenwich Village.

Just to set the table, here is my own take, from my "About" page, of the overall nature of change in Greenwich Village and New York City in the time I have lived here since the 1970s:

When I moved to this neighborhood in the 1970s the old buildings were here, but there were public safety issues and overall a slight air of seediness.  The subsequent years have seen renovation of older buildings, an influx of wealthier residents, and great improvement in the quality of the stores and restaurants.  Public safety has improved dramatically.  All in all, it has been a great place to live and raise a family.

 What's not to like?  Well, if you think like that, you are not a New York City progressive!

Let's get a few choice quotes from Spiegel's article (mostly from her summary of Moss's book):

Moss’s Vanishing New York is a history of how “wholesome” and corporate America caulked over the dark cracks and corners that once distinguished New York’s spirit, life, and community from the rest of the country’s. The book is an effortful reference for how New York morphed from a syncretic collection of diasporas—both extra-national and of the identity and mind—into a bland sovereignty of the mega-rich. . . .  [Moss] demonstrate[s] how 20th-century New York buckled under mercenary policies and institutions designed to benefit the rich. The 21st-century city became punitive, extraditing, and sometimes carceral toward the poor, nonwhite, and queer—and, now, to the middle class, like citizens with independent businesses of interest to real-estate vultures, or those living in subsidized residences, or in black areas. “Working-class and lower-income black, brown, and immigrant people [are] exiled to the suburbs as more affluent whites take the cities … the colorized suburb now receives the brutal treatment the inner city once did—neglect, predatory lending, and militarized policing that too often ends in the murder of black people.” New York’s role has flipped with suburbia’s: it is now closed to those without means. . . .  The city became untethered from its people and their homes, free-falling skyward in the luxury developments coaxed up by the global-finance billionaire Mayor Mike Bloomberg from 2001 until 2014. Glassy new buildings grayed the city’s appearance, affordability, and feeling. 

So, according to Spiegel and Ross, it just couldn't get more horrible.  But is any of this remotely connected to reality?  Where do these people get this stuff?  Certainly not by looking at any readily-available data or statistics.  Nor is there any examination of the plethora of progressive policies and redistribution programs that have been in effect throughout the period in question.  How could all of those programs have failed so miserably?  And if they didn't work, why will the next set of similar efforts do any better?

I could go on forever about this, but let's just consider a couple of those statements from the Spiegel piece in some detail:

“Working-class and lower-income black, brown, and immigrant people [are] exiled to the suburbs as more affluent whites take the cities . . . .

It is true that there has been a recent influx of some more affluent whites into a few neighborhoods of the City that previously were either lower-income areas (Lower East Side of Manhattan, Williamsburg and Bushwick in Brooklyn), or industrial or business areas (Long Island City in Queens and Downtown Brooklyn).  These areas constitute maybe 5% of the City's land area at most.  Look at the overall demographic data for the City and you find that this influx of affluent whites into a few areas is so small in the overall picture that you can't even find it.  Here is a link to a Wikipedia compilation of demographic data for New York City by race and borough for the censuses from 1900 through 2010.  Non-hispanic whites declined by about 500,000 from 1980 to 1990, another 350,000 from 1990 to 2000, and another 75,000 from 2000 to 2010.  Over that period, the percentage of non-hispanic whites in the City's population went from 52% to 33%.  The number of blacks grew by about 350,000 between 1980 and 2000, before registering a slight decline of about 40,000 between 2000 and 2010.  Hispanics have increased rapidly, by almost a million people and 10% of the population, with the rapid increase continuing right through the 2010 census (and beyond as far as I know).  Asians have also seen significant increases, even more so in the most recent years.  When you look at these numbers, you realize that these New Republic people just don't have any idea what they are talking about.

[New York] is now closed to those without means. . . .     

Again, try to find this in any data that you can locate.  It's funny, but the "poverty rate" reported by the Census Bureau for New York City for the most recent period available (July 2016) is 20.6%, a good 7 points above the full U.S. rate of 13.5%.  I have been very critical of these numbers, but they are the official numbers.  If you are going to take the position, in the face of these numbers, that "New York is closed to those without means," don't you owe us at least some explanation of how it could be that the official data show New York with proportionately far more "people without means" than the rest of the country?  And how is it that New York's huge suite of programs to assist those "without means" and help them to live here -- public housing for 500,000 people, other housing subsidy programs for hundreds of thousands more, rent regulation for another 2 million people, welfare, Medicaid, food stamps, etc., etc. -- don't seem to be doing any good?  What is the next set of coercive government programs you are proposing that is supposedly going to work, when the previous dozens of programs have failed so disastrously?  And, if you believe that the City's proper role is to welcome those "without means" and to improve their lives with government programs of various sorts, how exactly do you make that work without also attracting a critical mass of the affluent to pay the bills?

So no, none of this is remotely connected to reality.  These are the ravings of people afflicted with some combination of extreme and irrational guilt because of their own prosperity, combined with jealousy for those they think are too wealthy.  Why?  I can't explain it.  But it's the official New York mentality today. 

The Transformation Of Justice Clarence Thomas

Do you remember when Justice Clarence Thomas, to the racist left-wing press, was just too dumb to hold a position on the Supreme Court?  He was unable to think for himself, and effectively was a puppet or clone of Justice Scalia.  Adam White, in a 2014 piece at Library of Law & Liberty, collected a small roundup of quotes from the 90s from the leading lights of left-side Supreme Court reporters:

[T]he Left . . . casually assumed, two decades ago, that the newly appointed Thomas would follow Scalia in all things. That’s no exaggeration. The Washington Post’s Mary McGrory asserted in 1992: “Thomas has come on as Scalia’s puppet.”  Linda Greenhouse, of the New York Times, was gentler, but no less prejudiced, when she called Scalia Thomas’s “apparent mentor.”  Newsweek trafficked in outright conspiracy theory: “Not only is Scalia an aggressive and articulate proselytizer but one of his former law clerks now works for Thomas. The clerk, Newsweek has learned, exerts considerable influence over the rookie justice.”  All told, the conventional wisdom was best reflected by an ACLU official, who complained that “Thomas and Scalia are one person with two votes.”

So now, with Scalia gone, Thomas must be a complete irrelevancy -- right?  The funny thing is that, in the intervening two decades, Thomas has somehow transformed from a dope into a genius -- an evil genius, of course, but a person of such powerful (if twisted) intellect that he has singlehandedly turned constitutional law into something that civilized progressives can hardly recognize.

As the latest contribution to describing the transformation of Justice Thomas, consider this piece by Dahlia Lithwick and Mark Joseph Stern in Slate on August 2, headline "The Clarence Thomas Takeover."  First of all, Dahlia and Mark, what do you think of Thomas's judicial philosophy?  Ugh!!!  A few choice quotes:

The justice has spent his career pushing a fringy, right-wing ideology.

[Thomas] has spent more than 25 years staking out a right-wing worldview that can generously be described as idiosyncratic.

[Thomas has] spent his career teetering off the right edge of the federal bench. . . .  

And yet . . . This kook with the "fringy, right wing" "idiosyncratic" views seems to be orchestrating a "takeover" of constitutional law.  How could this possibly be happening?

Lithwick and Stern don't trouble themselves to actually quote any of Thomas's opinions, but perhaps we ought to look at a couple of the more famous ones that have the progressives up in arms.  For example, there is the Thomas concurrence in the 2015 case of Department of Transportation v. Association of American Railroads, where the issue was the authority of the National Railroad Passenger Corporation (aka Amtrak) to issue regulations to the railroad industry.  From Thomas's concurrence:

We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, . . . [w]e never even glance at the Constitution to see what it says about how this authority must be exercised and by whom. 

The Constitution does not vest the Federal Government with an undifferentiated “governmental power.” Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government.  Those Clauses provide that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1, “[t]he executive Power shall be vested in a President of the United States,” Art. II, §1, cl. 1, and “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1.  These grants are exclusive. 

Oh my God, this guy actually reads the Constitution, and quotes from it, and thinks that its text might have something to say about the resolution of the question before us.  Really, can you get more "fringy" and "right wing" than that?  How are we supposed to achieve perfection in human affairs if all-knowing bureaucrats in the administrative state cannot create thousands of pages of regulations and also enforce them?

Then there is Thomas's view that the Constitution ought to be interpreted to make the federal government one of limited powers.  Where can he possibly have gotten that idea -- an idea that could undermine a good half or more of what the federal government currently does?  Perhaps from Article I, Section 8 of the Constitution, as elucidated by James Madison in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . .  

And yet somehow the federal government now claims the power to insinuate itself into every aspect of our lives.  How did that happen?  From Thomas's concurrence in Lopez v. United States (1995):

[O]ur case law has drifted far from the original understanding of the Commerce Clause. . . .  We have said that Congress may regulate not only "Commerce ... among the several States," U. S. Const., Art. I, § 8, cl. 3, but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life.  Unfortunately, we have never come to grips with this implication of our substantial effects formula. . . .  

Read a few of these things and you suddenly realize that this is a guy who understands that the progressive vision of achieving perfection in human affairs through rule by experts is fundamentally incompatible with our Constitution, with its limited and separated powers.  

I don't really have a position on how "smart" Clarence Thomas might be.  Certainly, he can put together a well-written and well-thought-out judicial opinion.  But as readers here know, I don't have much respect for the merely smart.  Pretty much everybody says that Barack Obama is "smart," and maybe they're right.  Obama is so "smart" that he uttered this gem (in 2012):

You know we can’t just drill our way to lower gas prices. . . .  [A]nybody who tells you that we can drill our way out of this problem doesn’t know what they’re talking about. . . .  

Here's the key difference between Thomas and Obama:  Obama is a groupthinker.  He internalizes what he hears others say.  He has never had an original thought in his life.  Thomas thinks for himself.  If the subject is the Constitution, instead of listening to what others say, he reads the document itself, and forms his own views.  And then, although he might be talked out of his views by reasoned argument, he can't be bullied out of those views by social pressure.  That may or may not make him "smart" by conventional measures, but you can see why it makes him a huge threat to the progressive project to supersede the Constitution with an unaccountable administrative state of unlimited powers.

Do You Know How To Identify A "Constitutional Crisis"?

The funny thing about constitutional law is that most everybody who has not studied it, and many who have, think that it is a really complicated and sophisticated subject that only extremely smart specialists can understand.  Then you read the document, which is remarkably short, and maybe you also read some of the Federalist Papers for a little recreation, and you're left wondering, what about this is so complicated?  Maybe it's that it takes some serious obfuscation to convince you that the document means the exact opposite of what it says. 

Two things caught my eye on the constitutional front from the New York Times in the last couple of days.  Tuesday, it was an op-ed by a guy named Yascha Mounck, identified as a "lecturer at Harvard" (the guy must be really smart!), headline "Trump Is Destroying Our Democracy."  Excerpt:

Over just a few days last week, President Trump and his allies stepped up attacks on Robert Mueller, the special counsel investigating the campaign’s connections to Russia. They tried to push Attorney General Jeff Sessions out of office. They thought out loud about whether the president can pardon himself.

The second article appeared yesterday, headline "Court Complicates Trump's Threat to Cut 'Obamacare' Funds."   Excerpt:

[President] Trump has been threatening [to eliminate so-called "cost sharing" subsidies for insurance companies under Obamacare] for months . . . .  The health law requires insurers to help low-income consumers with their copays and deductibles. Nearly 3 in 5 HealthCare.gov customers qualify for the assistance, which can reduce a deductible of $3,500 to several hundred dollars. The annual cost to the government is about $7 billion.

OK now, guess which one of these two, according to the Times's writer, is "a full-blown constitutional crisis."  Of course, it's the first one.  And as to the second?  The article contains no mention of any constitutional issue at all.  What, there's a problem?  Of course, if you take sufficient time (about one minute will do it) to check with the Constitution itself, you will quickly realize that there is nothing constitutionally problematical about any of Trump's conduct discussed in Mounck's piece; but there is a gigantic constitutional problem with the Obamacare cost sharing payments.  As usual, the Times is giving you carefully calculated misdirection masquerading as news.

All I can say about Mounck's piece is that it seems that hyperventilating about a non-existent "constitutional crisis" about everything President Trump says is the new thing now that "Russia collusion" has gone poof.  They tried to push Attorney General Jeff Sessions out of office!!!!  Scary!  Oh, wait -- doesn't the President have the absolute right to fire the attorney general, and haven't plenty of past Presidents done exactly that?  (Article II, Section 1: "The executive power shall be vested in a President of the United States of America.")  They thought out loud about whether the president can pardon himself!!!!!  Scary!  Oh wait -- what about Article II, Section 2 ("[H]e shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.")?  The drafters seem to have left out the exception for the President pardoning himself.  So it's now a "constitutional crisis" to notice that out loud?

I'll grant that the business about "attacks on [special counsel] Robert Mueller" is more complicated, but only slightly so, and only because of one of the worst Supreme Court decisions of all time, Morrison v. Olson of 1988.  That case upheld restrictions in a statute passed by Congress (not the same as the current statute) on the President's ability to fire an independent counsel.  The vote was 7-1 (Justice Kennedy taking no part), with Justice Scalia as the lone dissenter.  Scalia considered that dissent his best opinion while on the Court, and I agree with him (at least among his opinions that I've read).  Key quote:

Article II, 1, cl. 1, of the Constitution provides:  "The executive Power shall be vested in a President of the United States."  As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles. . . .     

Does anything about that sound similar to something you've read here?  Today, all of the seven justices who voted the other way are gone.  Scalia's dissent has justifiably achieved widespread fame.  It is very likely that a firing of the "special counsel" by President Trump would be upheld by today's Supreme Court, although Justice Kennedy as always is a wild card and the statist bloc would likely dissent on the deep constitutional principle that they're in favor of anything that hurts Trump.  And if the Supremes failed to uphold the President's firing of the special counsel, then that would be the constitutional crisis, not Trump's action.

And what about this business of the Obamacare cost sharing subsidies?  Here is the Times spinning like a top to describe the legal issue:

The [Obamacare] law also specifies that the government shall reimburse insurers for the cost-sharing assistance that they provide.  Nonetheless, the payments remain under a cloud because of a disagreement over whether they were properly approved in the health law, by providing a congressional "appropriation."

Does the Constitution have anything to do with this?  Not that you can find in this article.  Indeed, the word "constitution" does not appear.  But why the scare quotes around the word "appropriation"?  Perhaps they are concerned that a few readers may actually know about Article I, Section 9, Clause 7 of the Constitution: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."  

Has there been an "appropriation" made for these cost sharing subsidies?  Actually not.  The Obama administration initially asked Congress to make an appropriation of the needed funds (about $7 billion per year) and Congress didn't do it.  And then Obama just went ahead and spent the unappropriated money.  By now they're up to about $30 billion or so of the unconstitutional spending.

If you want an excellent detailed write-up of the law on this subject, and how it is not remotely a close question that the government has been unconstitutionally spending tens of billions of dollars of unappropriated money in defiance of the Constitution, I would recommend the decision of District Judge Rosemary Collyer in United States House of Representatives v. Burwell.  By the way, that is the opinion where Judge Collyer declared the spending of these billions to be a violation of the Constitution.  But the government just goes ahead and keeps spending the money anyway.  

And now President Trump is saying he's going to put a stop to it.  In Times-world, that's outrageous.  After all, "The health law requires insurers to help low-income consumers with their copays and deductibles."  Isn't that all we need to know?  Constitution?  What Constitution?