They Don't Give Any Advance Notice When They Change The Narrative

Here's what I know about all the problems of the world:  they are your fault.  By your hard work and success (even if modest) you are the cause of the great suffering of others.  You wallow in your undeserved privilege.  You are guilty, guilty, guilty, and you need to feel it deeply and to grovel and beg forgiveness regularly.

For example, if you are affluent or white (or worse, both) you brought about the suffering of the poor and of minorities in America by moving to the suburbs.  You "left behind," or worse, "abandoned," the poor in the "inner cities," as you became part of the "suburban flight."  You "fortified" yourself in your "suburban enclave," leaving the "inner cities" without the resources they needed to lift the poor out of poverty, or even to provide basic government services.  How can you even look yourself in the mirror?  

If you are my age, or even half my age, you have heard or read some version of this narrative many thousands of times in your life -- so many times that undoubtedly by now it is just part of the background noise of your existence.  Of course you know all these things.  Everybody knows them!

But if you are the curious sort, you may have started to wonder in recent years whether this narrative was consistent with the more recent phenomenon of gentrification of urban neighborhoods.  Could somebody maybe take a few minutes to explain how these things fit together?

Which brings me to the big front page story in yesterday's New York Times, headline "Pushed to Fringes, Needy New Yorkers Face a Long Slog to Work."   Without anybody telling you it was coming, suddenly the narrative has completely shifted.  No longer are you causing the suffering of the poor by "abandoning" them and "fleeing" to the suburbs.  Now you are causing the suffering of the poor by moving into the inner cities and thereby "pushing" the poor to the "fringes."  Key quote:

“Commutes are lengthening for more and more people,” a study by the Pratt Center for Community Development and the Rockefeller Foundation reported in 2013. “Skyrocketing housing costs push low- and moderate-income families farther from Manhattan and the well-connected communities that surround it.”  The study found that 758,000 New York City residents now travel more than an hour each way to work, most of them to jobs that pay less than $35,000 per year. Black New Yorkers’ trips to work are 25 percent longer than whites, and Hispanics, 12 percent longer than whites, other research by the Pratt Center found. . . .  

These hardships built up over decades. . . .  Those long commutes mark a new boundary between lower-income people and those who are relatively affluent. . . .  

This being Pravda, don't go expecting any comprehensive data to back up the new narrative, let alone an honest rendering of the full picture.  Instead, what we get is a handful of anecdotes -- actually, it's only two -- of sympathetic low wage workers who endure lengthy daily commutes involving multiple bus and subway legs together with, in one of the cases, the Staten Island Ferry.  Why?  Undoubtedly to support a coming demand for some new government program or handout to cure the problem.  

But perhaps we should first apply a touch of critical thinking to what has been presented.  Consider this excerpt from the quote above:  "758,000 New York City residents now travel more than an hour each way to work, most of them to jobs that pay less than $35,000 per year. Black New Yorkers’ trips to work are 25 percent longer than whites."   Wait -- is this limited to "residents" of New York City?  One thing that is obvious about the New York City commuting situation is that the longest commutes are not within the City, but rather involve trips into the City from some distant suburb.  The commuters on those trips are predominantly (although far from entirely) white.  Could the Times possibly have left out that huge piece of the picture in order to skew the result?  And then not mention explicitly that they have made that omission?  Yes, that is exactly what they have done.  So, if all commutes in the New York Metropolitan Area were included in the statistics, which would have the longer average commutes, whites or blacks?  You won't find that answer here.  I guess that tells you what you need to know -- clearly, the answer would be reversed.

And then, aside from a couple of anecdotes, can we actually find anything in government statistics to establish that poor and minorities are being "pushed out" of close-in neighborhoods in New York City by gentrification?  As I have previously reported, the statistics that I can find just don't indicate that at all.  Admittedly, statistics on income and poverty by county or neighborhood come out with substantial lags, and it is possible that more recent data, when they emerge, will show the phenomenon the Times says is occurring.  But then, the Times claims to base its article on a report from 2013.  

Here are the latest data on poverty in New York County (essentially the same thing as Manhattan), released in February 2017 and covering the year 2016.  The "poverty rate" is said to be 17.9%.  Even though New York County is by many measures the wealthiest county in the country, that rate is considerably higher than the national rate for the same year, which was 13.5%. The anomaly results from the large suite of government programs that we have in New York to subsidize poor people so that they can continue to live in this wealthy place -- programs like public housing, Section 8 vouchers, food stamps, clothing and energy assistance, and so forth.  If massive government programs are so large that they can keep the "poverty" population in this wealthy county well above the national norm, is it really fair to say that the poor have been "pushed out"?

Well, one thing remains clear, and that is that you are guilty.  When you moved to the suburbs you were guilty, and when you moved back to the city you became even more guilty.  In fact there is no place you could live that would make you any less guilty.  We'll figure out why you are even more guilty after your next move.  Better start groveling and begging for forgiveness!  

Late Stage Socialism At The New York City Housing Authority

Back in May 2016, I commented (in a post titled "New York's Ongoing Housing Madness") that the New York City Housing Authority (NYCHA) had "hit the inevitable terminal phase of the socialist death spiral."  As described in a big report put out by NYCHA itself, there was:

[an] "accelerating financial collapse" of New York's low income public housing: $2 billion annual shortfall of rent to cover operating expenses, only partially covered by HUD subsidies, leaving a multi-hundred million dollar and growing annual deficit; $16 billion of identified and unmet capital needs, with no source of funds to pay for them; zero property tax contribution to the City; [and] hundreds of thousand of residents living on some of the world's most valuable real estate and receiving massive subsidies, yet in "poverty" with no way to escape. 

But the funny thing about these socialist death spirals is that you never know how far they will have to go before they finally collapse and disappear onto the scrapheap of history.  I mean, who would have thought that a North Korea or a Venezuela could possibly have gone on as long as they have?  Yet there they are today, economies getting smaller every year unto the vanishing point, the people starving and desperate to escape -- and the strongmen still clinging successfully to power and undoubtedly squirreling away a few billions in European banks.

At NYCHA, another year-and-a-half on, they only sink lower and lower.  But a new crisis in the last couple of weeks has caused even the intentionally ignorant New York Times to take some notice.  The Times weighed in yesterday with a big editorial headlined "The City as Problem Landlord."

The recent crisis is that it has come to light via a Department of Investigations Report that the City has failed to carry out required lead paint inspections in the NYCHA apartments for at least the period 2012 to 2016.  Oh, and they lied about it, falsely certifying to the feds that the inspections had been conducted.

[I]t’s not surprising that the city Housing Authority would struggle to fulfill requirements under city and federal law to check for lead-paint dangers in thousands of apartments prone to them. Still, it’s stunning that authority officials not only failed to carry out those inspections from 2012 to 2016 but also falsely told the federal Department of Housing and Urban Development that it had done so, a city Department of Investigations report found.  The authority’s chairwoman, Shola Olatoye, was aware in the summer of 2016 that her agency’s certifications were false. She told Mayor Bill de Blasio at the time, but he did not make it public. It wasn’t until after the report — a year and a half after the mayor and Ms. Olatoye learned of the problem — that two executives were forced out and one demoted.

Can we maybe blame Donald Trump?  Oh, wait a minute -- this all took place before Trump was President, and most of it while progressive hero Bill de Blasio was Mayor.  Well, at least we can throw in a gratuitous swipe at Trump that has nothing to do with the current issue:

You might expect this from the administration in Washington, which appointed a former Trump party planner as the federal housing department’s regional supervisor, but not the administration of Mr. de Blasio (who held that regional position in the Clinton administration).

So, is this an isolated issue?  Or is NYCHA facing an accelerating decline in all areas?

This is not an isolated mistake. Last year, after two children died in a fire hours after a Housing Authority worker certified that their apartment had working smoke detectors when it did not, the investigations department found that such false reporting was a widespread practice. Two years ago, a frustrated federal judge decided to appoint a special master because of the authority’s delay in curbing mold. Last year, too, Investigations Commissioner Mark Peters said his department found “a wholesale breakdown in the basic management of the elevator division” of the authority after a defective elevator killed an 84-year-old Bronx tenant.

Of course, this being the New York Times, the proposed solution is a call for more government money and an end to "cuts."  They claim that "the federal government has reduced its contribution to the city's Housing Authority by $2.7 billion since 2001," but I am completely unable to verify that figure, or anything like it.  What I find instead is that annual federal subsides to NYCHA have increase dramatically since the early 2000s.  (Of course, the Times does not identify the baseline against which what it calls a "cut" is measured -- are they talking about an absolute reduction, or a comparison to projected increases that then were not met?)  According to this report from New York's Independent Budget Office in 2003, the entire NYCHA operating budget in 2003 was only $1.4 billion, so the annual operating subsidy from HUD could not possibly have exceeded that figure.  Today the (enormous) HUD subsidy to NYCHA is around $2+ billion per year (out of a total annual operating budget of about $3.2 billion).  Obviously, the annual federal operating subsidy has gone up, not down, and by a lot.  This is the typical socialist death spiral:  more and more money buys less and less, and the problems get worse every year.  Meanwhile, the Trump budget outline released earlier this year called for a cut to NYCHA of only about $35 million per year, which would be less than 2% of the annual subsidy.  That set off anguished wailing all around New York subsidized housing circles.

What the Times editorial ultimately demonstrates is the poisonous incentives of socialist-model public housing.  With no one having an ownership interest in the properties, the residents and bureaucrats take a completely passive approach to dealing with the challenges they face.  An endless series of inevitable "crises" ensues, which are the perfect opportunity to demand more taxpayer money to cure the immediate crisis, even as the next one is inexorably developing in the shadows.  The perfect illustration of the attitude comes in the last two paragraphs of the Times editorial, obviously crafted to evoke your sympathy and even outrage:

Ricarda Solorzano, who has lived in the Mill Brook Houses in the Bronx for 18 years, has lost faith. For years there has been mold in the apartment she shares with her two daughters and their two young daughters.

“They only care if you pay your money on time,” she said of the authority. “They don’t care about people.”

No way would Ms. Solorzano or any of her offspring accept any personal responsibility for dealing with the problem of mold in her apartment, or for that matter lead paint or smoke detectors or anything else.  Why should she?  This is socialism!  

The Bureaucracy Declares Independence From The Constitution

In Friday's post I linked to an article by Deroy Murdock that listed some 36 accomplishments of the Trump administration for which we should be thankful at this season of Thanksgiving.  But there's one item that Deroy omitted that may be the most important of all:  the Trump administration has shone the light that makes it abundantly clear how anti-constitutional our federal government and its bureaucracy have become.

Let's face it, so long as a Barack Obama or a Bill Clinton was President -- or for that matter, a George H.W. or W. Bush -- it didn't really matter a whole lot what would happen if the President wanted to change the policy direction of the bureaucracy.  That was because on every (Obama, Clinton) or nearly every (Bush 41 and 43) issue, the President was perfectly happy to go along with whatever the bureaucracy wanted to do.   Now, with Trump, not so much.  So now we get to see what happens when the people elect a new President who wants the bureaucracy to change policy direction.  Does the election count?  Or do the bureaucrats get to continue to do whatever they want and tell the newly-elected President to get lost?

I already covered a few early skirmishes in this incipient war.  Back in February, in a post titled "The Bureaucrats Think That They Don't Answer To The President," it was Acting Attorney General Sally Yates (an Obama holdover still in office due to the delayed confirmation of Jeff Sessions) purporting to direct the Justice Department not to enforce President Trump's just-issued Executive Order on immigration.  Yates asserted that she was entitled to countermand a direct order from the President because an opinion from Justice's Office of Legal Counsel (finding the Executive Order to be presumptively legal) did "not address whether any policy choice embodied in an executive order is wise or just. . . ."  Deep constitutional thinking there, Sally!  However, Trump promptly fired Yates, and she left office.  In July, in a post titled "Government Employees Systematically Violating Their Oaths Of Office," it was a bureaucrat and climate change activist in the Interior Department named Joel Clement.  Clement found himself transferred to another section of Interior where he could not continue to carry on his climate change activism.  He then took to the press declaring himself to be a "whistleblower," and filed a "complaint" with something called the "U.S. Office of Special Counsel," because "[r]emoving a civil servant from his area of expertise and putting him in a job where he’s not needed and his experience is not relevant is a colossal waste of taxpayer dollars."  Even deeper constitutional thinking, Joel!  Once again, however, it appears that Clement accepted his transfer (although presumably his "complaint" continues to wend its way through the adjudication process).

But these were only the warm-ups.  On Friday, we saw the ultimate maneuver of bureaucratic chutzpah.  Richard Cordray, head of the wildly unconstitutional Consumer Financial Protection Bureau, on the Friday after Thanksgiving, suddenly moved up his previously announced resignation from the agency.  Within hours, President Trump had announced an acting-director successor, Mick Mulvaney (also current head of OMB).  The President has the power under something called the Federal Vacancies Act to install as acting director of any agency anyone in the administration who has previously received Senate confirmation to any position.  But wait!  Just hours before, according to an excellent summary from Politico here, Cordray had purported to install the CFPB's chief of staff, one Leandra English, as "Deputy Director."  The Dodd-Frank Act of 2010 provides that the Deputy Director “serve[s] as acting Director in the absence or unavailability of the Director."   Whereupon Cordray sent a note to CFPB staff openly defying the President in his right to name the successor:  "Upon my departure, [English] will become the acting Director pursuant to section 1011(b)(5) of the Dodd-Frank Act."    

So the battle lines are clearly drawn.  Who is in charge at the CFPB:  Mulvaney or English?  Or to put it another way, does the President have any say or control over this particular corner of the bureaucracy, or is CFPB a self-perpetuating agency outside of the Constitution where the director can appoint his own successor without any input from anyone else?

To get the full scoop on what I just called the "wildly unconstitutional" CFPB, the best place to go is the October 2016 decision of the D.C. Circuit in PHH Corp. v. CFPB, written by Judge Brett Kavanaugh.  (Kavanaugh, by the way, is one of the guys on President Trump's list of potential Supreme Court nominees.)  Unfortunately, the decision is over 100 pages long, but I'm going to do my best to summarize it for you briefly.  The CFPB is the deformed brainchild of Massachusetts Senator Elizabeth Warren, who crafted an agency with a single unfirable director and funding outside of all normal budget procedures, thinking she would get the job of Director and could run her own completely independent fiefdom in the government; but then she didn't get the job and it went to Cordray.  The bottom line of the D.C. Circuit decision is that the CFPB was declared to be unconstitutional.  The remedy was that the CFPB Director was declared to be firable at will by the President.  However, on application for en banc review, the full D.C. Circuit stayed that remedy and granted further hearing.  The hearing was held in May.  Six months later, there has been no decision from the en banc Circuit.

Kavanaugh's opinion is essentially divided into two parts.  The first considers the constitutional problem of an "independent" agency, with a single Director, where the Director cannot be fired by the President except in narrowly-defined "for cause" circumstances.  This is by far the longer part of the opinion.  It includes detailed history of "independent" agencies in the federal government (that is, agencies whose directors or commissioners can only be fired "for cause"), and demonstrates respects in which the CFPB goes far beyond any of them.  It concludes that the agency is unconstitutional as structured, and provides the remedy described above -- the Director can be discharged "at will" by the President.

But the second part of the D.C. Circuit's opinion is even more interesting.  Here the court lays out the facts of the case before it.  This is about a seemingly obscure bit of federal regulatory arcana, namely whether under the Real Estate Settlement Procedures Act a lender can participate in a so-called "captive" reinsurance agreements.  It turns out that in 1997 -- under the Presidency of Bill Clinton and the HUD Secretaryship of Andrew Cuomo -- HUD issued a letter interpreting RESPA, and saying that this is perfectly OK for a lender to participate in captive reinsurance arrangements, as long as the mortgage insurers paid no more than reasonable market rates for the reinsurance.

After Dodd-Frank in 2010, CFPB got co-regulatory authority under this statute.  They sued PHH -- before their own "Administrative Law Judge."  And, lo and behold!, they ended up with a judgment against PHH for some $109 million -- for conduct that had been specifically blessed by HUD as the regulator under the very same statute.  Is this OK with you?  From Judge Kavanaugh's opinion:

In this action against PHH, however, the CFPB changed course and, for the first time, interpreted Section 8 [of RESPA] to prohibit captive reinsurance agreements even if the mortgage insurers pay no more than reasonable market value to the reinsurers. The CFPB then retroactively applied that new interpretation against PHH based on conduct that PHH engaged in before the CFPB issued its new interpretation.  . . .  The basic statutory question in this case is not a close call. The text of Section 8(c) permits captive reinsurance arrangements where mortgage insurers pay no more than reasonable market value for the reinsurance. . . .  The CFPB obviously believes that captive reinsurance arrangements are harmful and should be illegal. But the decision whether to adopt a new prohibition on captive reinsurance arrangements is for Congress and the President when exercising the legislative authority. 

Well, what do you expect when you have a completely unaccountable agency answering to no one?  I wouldn't be so sure that this one is going to get through the en banc D.C. Circuit, even as packed by Obama after elimination of the filibuster.  In the Supreme Court, it is dead.       

Anyway, who is going to defend the CFPB?  The Justice Department?  Don't count on it!

On Being Thankful On Thanksgiving

Thanksgiving is my favorite holiday of the year.  We are reminded of the importance of being thankful for the many blessings we have in life.  The most important blessings are the simplest and most basic:  family, and extended family; friends; the large traditional meal; the opportunity to support a family through hard work; a government that doesn't intentionally starve and imprison dissenters.

Have you noticed that the liberals and progressives have lost the ability to give thanks for these things?  Their world view seems to be a combination of guilt and self-loathing on the one hand, with hatred of those who disagree with them on the other.  Somehow these things so overwhelm the consciousness that thankfulness for the simple things, or for anything, just can't break through.  Can any reader find a single example of a progressive pundit this Thanksgiving giving unqualified thanks for the basic and simple things without then turning to the usual guilt, self-loathing, and hatred, let alone the self-flagellation over "white privilege," over "racism," over "sexism," over "homophobia," and on and on?

Let's take a little survey of the New York Times op ed columnists.  Most of them have chosen not to address the subject of Thanksgiving at all.  The ones who have border, as usual, on self-parody. The Krugman article is headlined "On Feeling Thankful But Fearful."  So, what are you thankful for, Paul?

I’m thankful to have had the privileges that went with being a white male, growing up and building a career during an era — perhaps temporary — in which open anti-Semitism had become socially unacceptable. To my shame, until recently I didn’t fully appreciate just how big those privileges were (and at a deep level I probably still don’t). I knew that racism and sexism were real and continuing, but was oblivious to just how vicious they were (and are). 

See what I mean?  And Paul, do you have any other qualifications you want to add to your "thanks"?

[E]very one of those good things is now very much under assault. . . .  White supremacists are, of course, making a big comeback thanks to encouragement from the top. . . .  So are anti-Semites, which is really no surprise to those who remember their history.  Even as old prejudices return, we’ve clearly entered a new age of politically potent anti-intellectualism. . . .  

Meanwhile, the even more strident Charles Blow has a column headlined "Thankfully Recommitting To Resistance" -- but, after the headline, I can't find the word "thanks" in the column at all.  It is an angry screed directed at the President, and unwilling to concede that he has done even one thing worthy of the slightest gratitude.  Sample:

Donald Trump, I thought that your presidency would be a disaster. It’s worse than a disaster. I wasn’t sure that resistance to your weakening of the republic, your coarsening of the culture, your assault on truth and honesty, your erosion of our protocols, would feel as urgent today as it felt last year. But if anything, that resistance now feels more urgent.  Nothing about you has changed for the better. You are still a sexist, bigoted, bullying, self-important simpleton.

If Blow has anything to be thankful for, you will not find it in this column.  So, does even one of the Times's columnists offer any genuine thanks for anything?  The closest is Bret Stephens -- but then, he is the house conservative.

If you want to find an example of someone actually counting his blessings, you're just going to have to go over to the right side of the political spectrum.  Among many examples, one of the best is the article from Deroy Murdock at National Review.  National Review has been known as among the "never Trumpers."  But this article gives credit where credit is due, even to someone the magazine has strongly opposed on many issues.  The headline is "This Thanksgiving, Thank Donald J. Trump."  There is a list of some 36 positive accomplishments of the Trump administration, on subjects ranging from the economy to foreign policy to civil rights to immigration.  Many of these things you would think the progressives would agree with.  For example, on the economy:

• The Dow Jones Industrial Average, NASDAQ, and S&P 500 all hit record highs on Tuesday. The Wilshire 5000 Index calculates that some $3.4 trillion in new wealth has been created since President Trump’s inauguration and $5.4 trillion since his election. Fueled by the reality of deregulation, expectations of lower taxes, and a new tone in Washington that applauds free enterprise rather than excoriate it, the economy is on fire.
• Atop the second quarter’s 3.1 percent increase in real GDP, and 3.0 in 3Q, the New York Federal Reserve Bank predicts that 4Q output will expand by 3.8 percent. This far outpaces the feeble average-annual GDP growth rate of 1.5 percent on President Obama’s watch. Meanwhile, the IMF expects global GDP to rise by 3.5 percent this year. So much for a Trump-inspired “global recession.”

In the past I have expressed skepticism about crediting (or blaming) a President for economic performance of the economy starting on the day of his election or inauguration, since economic policy generally operates with a lag.  On the other hand, I think it is entirely reasonable to expect an economy to react more or less immediately to promises of deregulation and of tax cuts.  

In case you are not aware of it, note that Murdock points to a forecast put out by the New York Federal Reserve Bank, known as its "Nowcast."  This indicator tracks economic statistics day by day to give an early read as to how the economy is doing in the current quarter.  As of November 24 the New York Fed "Nowcast" for 4th Quarter GDP is at 3.7% increase (a 0.1% decline from a few days ago when Murdock wrote his article).  When combined with the 3.1% GDP increase in the 2nd Quarter, and 3.0% in the 3rd, there is no doubt that economic performance has dramatically improved on Trump's watch.  But then, Obama waged what I called (in August 2015) the "War On The Economy":

[T]hat war has many fronts, including: massive wasteful spending and debt accumulation; artificially suppressing cheap and reliable energy in favor of subsidizing expensive and unreliable energy; overregulation and endless phony prosecutions directed against anyone who dares to make too much money in a financial business; forcing people to overpay for wasteful health insurance (Obamacare); big tax increases; and more. . . .  I truly believe that Obama and his minions have no idea that there is any relationship between intentional suppression of economic activity by the government on the one hand and sluggish economic performance by the economy on the other. 

Murdock contrasts the economy's performance since Trump took office to Krugman's prediction on November 9, 2016 (the day after the election):

Now comes the mother of all adverse effects — and what it brings with it is a regime that will be ignorant of economic policy and hostile to any effort to make it work," Krugman wrote. "So we are very probably looking at a global recession, with no end in sight.

For two other examples, both from the right, of things that deserve your unqualified thanks, consider this article from Kurt Schlichter at Townhall, and this one from Marc Thiessen at the Washington Post.  Both lead with the same item:  Be thankful that Hillary Clinton was not elected President.

UPDATE, November 25:  You might have thought this was not possible, but my friends at Maggie's Farm have found someone who hates Thanksgiving even more than Krugman and Blow.  It's a guy named David Zirin, writing in The Nation on November 17.  Zirin works himself up into a purple rage over the fact that the NFL's Thanksgiving day game was being hosted in Washington by the Redskins.  Or, in The Nation, the "R*dskins."  They change the spelling because, in their world, the word "Redskins" is a "racial slur."  Excerpt:

Whether it’s a question of tin-eared insensitivity, or their own sick, private joke, Washington will be hosting the Thanksgiving game for the first time in league history. . . .  The NFL . . . of course has a team named after a Native American racial slur in the nation’s capital. That’s not news. What is news is that on Thanksgiving, for the first time in league history, this team in Washington will be playing host. That means as we finish our food . . .  and gather around the television to watch NFL football, a tradition only slightly less ubiquitous than pumpkin pie, the R*dskins slur— a name that exists only because of genocide and displacement—will have center stage. 

Bird Dog's comment is, "Oh for crying out loud."  Amen.

[For some reason, Squarespace is refusing to embed the link for The Nation article.  Here it is:  https://www.thenation.com/article/by-having-the-washington-rdskins-host-a-game-on-thanksgiving-nfl-owners-show-their-true-colors/.] 

In Germany, Reality Is Triumphing Over Political Posturing On Climate

Germany -- that's the place where there really is a 100% consensus on the need for immediate action to solve the supposed "climate crisis."  It's the land of the "Energiewende" -- the forced transition to the use of intermittent renewables like wind and solar to generate electricity.  It's the place where -- as I noted in this post back in September -- no major political party has dissented on the need to act on the "climate" issue.  It's the place that has happily driven its usage of renewables to generate electricity up to about 30% of the supply, and therefore its cost of residential electricity up to more than triple the average U.S. price.  It's a place where anyone questioning the so-called "science" underlying the warming scare can expect to be greeted with derision and scorn.  And yet, somehow reality still seems to be intruding.

Over the weekend, the talks among political parties in Germany to form a coalition government collapsed.  As of now, nobody seems to know what is going to happen next.  And -- even though there is little overt dissent on the virtue of reducing carbon emissions -- it seems like the ever-more-evident costs of this "climate" program are starting to drive events.

Just to set the table, let me remind readers about the state of the political playing field on this issue in Germany and the rest of Europe and other major countries.  A good background article is this one from Dana Nuccitelli in the Guardian from October 2015, "The Republican Party Stands Alone in Climate Denial."   The article summarizes some work from Norwegian political scientist Sondre Båtstrand, analyzing the positions on this issue of all conservative political parties from countries including the USA, UK, Norway, Sweden, Spain, Canada, New Zealand, Australia, and Germany.  The conclusion:

[Båtstrand] found that the US Republican Party stands alone in its rejection of the need to tackle climate change and efforts to become the party of climate supervillains. 

That's not the only example of over-the-top rhetoric in the piece.  For example, Nuccitelli quotes Jonathan Chait of New York Magazine on the position of then-candidate Jeb Bush on this issue:

In any other democracy in the world, a Jeb Bush would be an isolated loon, operating outside the major parties, perhaps carrying on at conferences with fellow cranks, but having no prospects of seeing his vision carried out in government.

In Germany, a political party needs to get 5% of the vote in an election to get any seats in the Bundestag.  As an indication of how correct Båtstrand was, in the previous (2013) election, the only party that could remotely be considered a climate dissenter, AfD, got only 4.7% and no seats.  Another party, FDP -- a free market classic liberal party and not really climate dissenters, but legitimately concerned about the costs of "climate" policies -- got 4.8% and also no seats.

In the recent elections in September, those two parties suddenly got, between them, 23.3% of the vote and 24.6% of the seats.  And suddenly Angela Merkel needs one or both of them to form a coalition government.  Oh, and she also needs the Green Party.  How is that playing out?  An impasse!  Benny Peiser of the Global Warming Policy Foundation reports this morning:

Most remarkable: Germany’s failed and increasingly unpopular climate policies are at the core of the crisis. It also signals the collapse of Germany’s decade-old climate consensus.  While the Green Party demanded the immediate shut-down of 10-20 of Germany’s 180 coal power plants, the Liberal Party (FDP) stood by its manifesto promise of  a radical reform of the Energiewende, advocating the end to subsidies for renewable energy.

Experts at the Federal Ministry of Economics had warned participants at the exploratory coalition talks that Germany will miss its legally binding 2020 climate targets by a mile and that trying to achieve its 2030 goals would risk the economic prosperity of the country.  The Ministry also  warned that any attempt to force a radical reduction of CO2 emissions “by 2020 would only be possible by partial de-industrialisation of Germany.”

Climate business as usual is no longer an option for the Liberals [aka FDP]. The party fears that a fast exit from coal-fired power generation, as demanded by the Greens, would result in severe social, economic and political problems. A continuation of radical climate policies would affect Germany’s main coal regions, not least in Eastern Germany where the right-wing protest party Alternative für Deutschland (AfD) had gained significant support in the federal elections in September.

So, if you were to go around the streets of the major cities of Germany and take an opinion survey, you will find very close to one hundred percent agreement on the need to "take action" on climate change immediately.  But what?  Does this mean that we will be putting thousands of coal miners out of a job, and more thousands of utility workers at coal plants out of a job, and driving the cost of electricity from three times the U.S. average to five times or maybe ten, and making our electric grid not work right any more, and by the way also "partially de-industrializing" Germany?  Wait, you didn't tell us about those things!

I'm actually hoping that Chancellor Merkel does a deal with the Greens and maybe the SDP, and continues down her road of green folly.  The real world needs some concrete examples of actual disaster to teach us a lesson in reality.  

The Administrative State Under Siege; Or, How Much Things Can Change In Three Years

When I began this blog in 2012, one of the things I had been pondering for years was the extent to which much to most of the operation of the U.S. federal government ran directly counter to the Constitution.  Every federal officer, on taking office, swore to uphold the Constitution; and then from day one proceeded to ignore it completely.  Good friends of mine would go into jobs where everything they and everyone around them did was obviously unconstitutional, and yet nobody would so much as mention the issue.  It was taboo -- like in The Emperor's New Clothes.  Without going into detail, the three biggest issues then and now were (1) the combining of powers into agencies that would enact, and also enforce, and also adjudicate regulations (directly contrary to the Constitution's separation of powers into three branches of government); (2) agencies enacting regulations with the force of law on their own say so (contrary to the Constitution's requirement that all laws be passed by both houses of Congress and presented to the President for signature); and (3) many agencies claiming to be "independent" of the President (contrary to the Constitution's vesting all "executive power" in the President).

I'm not saying I'm the only one who had noticed these things at the time, and I should definitely mention Justice Clarence Thomas of the Supreme Court and Professor Gary Lawson of BU Law School as examples of canaries in the coal mine.  But very, very few were paying attention, and certainly nobody in the Obama administration.  Left-leaning law professors had nothing but scorn for anyone daring to raise these issues, certainly including Clarence Thomas.

I trace the beginning of a shift to the publication in 2014 of the book "Is Administrative Law Unlawful?" by Philip Hamburger, Professor at Columbia Law School.  That was just over three years ago.  Hamburger raised all of the three issues I identify above, and plenty more, and pulled no punches in characterizing these things as unconstitutional and illegitimate.  Hamburger's book started to get some buzz in esoteric legal circles, but not much outside.

On March 9, 2015, two cases came down from the Supreme Court that contained significant concurring opinions raising these same issues from Justices Alito and Thomas.  I covered those opinions in a post on March 25, 2015.  Most significant was the Thomas concurrence in the case called Association of American Railoads, which included the following passage:

We have held that the Constitution categorically forbids Congress to delegate its legislative power to any other body . . . but it has become increasingly clear to me that the test we have applied to distinguish legislative from executive power largely abdicates our duty to enforce that prohibition. . . .  I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.

Uh oh.  Right about the same time, progressive icon Professor Larry Tribe of Harvard Law School filed a comment on behalf of none other than Peabody Coal opposing EPA's Clean Power Plan on grounds that it violated the so-called and never-enforced "non-delegation doctrine."  Now, this was a serious apostasy.  It's one thing if a few conservative kooks spout crazy theories, but progressive icons must not step out of line.  The forces of orthodoxy enforcement promptly swung into action.  On March 26, 2015, an op-ed appeared in the New York Times by then recent ex-Dean of NYU Law Ricky Revesz, announcing that he and Tribe's Harvard colleagues Jody Freeman and Richard Lazarus had determined that "no one would take [these arguments] seriously" except for their association with Tribe's name.  In other words, shut up Tribe, if you ever again want to be invited to the right cocktail parties.

Which brings me up to the present.  For the past three days I have been attending the annual convention of the Federalist Society in Washington, which is just now wrapping up.  The theme of the convention has been "Administrative Agencies and the Regulatory State."  I hate to break it to Revesz, Freeman, et al., but suddenly lots of people are taking these issues very seriously indeed.

On Thursday night they had the big annual dinner.  The speaker was new Justice Neil Gorsuch.  About 2200 people were in attendance.  Gorsuch talked about the just-published 2017 Supreme Court Foreword from the Harvard Law Review.  He said that the article had coined a new and rather awkward term, "anti-administrativist," to describe the growing movement of those who think that much about the modern administrative state is unconstitutional.  It was clear that Gorsuch was happy to include himself in the category.

Many readers who don't follow constitutional law closely may not understand the significance of the annual Harvard Law Review Supreme Court Foreword.  It is undoubtedly the premier annual law review article.  The Who's Who of the law professoriate compete to get their articles into this spot.  All the Con Law profs read it.  It generally runs around 100 pages, and this year's is no exception.  The author is Gillian Metzger of Columbia Law School.  And the title is "The Administrative State Under Siege."

So, in the course of less than three years, the official position of the cognoscenti has gone from "no one will take this seriously" to "the Administrative State is under siege."  That was rather quick!

Metzger's 100 page article is way too long to quote here.  Suffice it to say that the gist of the article is that having the agencies adopt and also enforce and also adjudicate regulations just has to be constitutional because it's necessary, and the government is just too big and its meddling in our lives is too important to do this any other way.  If Professor Metzger had read her colleague Hamburger's book, she would know that these arguments were well-known to our framers and were explicitly rejected.  In any event, this massive article is a far cry from the condescending dismissal of the Thomas/Hamburger position that was tried in 2015.  They are now putting on the full court defense.

On Friday afternoon at the convention, the big speech was by Don McGahn, the new White House counsel.  McGahn is the main legal advisor to the President, and also leads the forces looking for judicial nominees for President Trump.    Here is a line I wrote down from McGahn's speech:  "Justice Thomas's opinions [on the constitutionality of the administrative state in cases including Association of American Railroads] are the driving intellectual force of the Trump administration."  He discussed a long list of Thomas opinions - concurrences and dissents - where Thomas has laid out in great detail his reasoning on the unconstitutionality of the main aspects of the administrative state.

On Saturday afternoon there was a big panel that featured both Lawson and Hamburger, going through their arguments in detail.  There was no appearance from Justice Thomas this year, but his intellectual contributions permeated the conference.

Just three years ago the progressive legal elite thought that anti-constitutional governance by unaccountable bureaucrats (themselves) was secure for the long term, and that powerful counter arguments of the black justice could be condescendingly dismissed as things that "no one would take seriously."  Now suddenly they are taking this very seriously.  They are right to.