An “independent”, agenda-setting bureaucracy 10/24/16

There is an op-ed article today in the WSJ, unfortunately behind the firewall, that unwittingly lays bare the unconstitutionality of the regulatory state as it currently exists in the US. The article was written by former Chairman of the SEC, Arthur Levitt Jr., and is ostensibly a critique of Senator Elizabeth Warren’s call for current SEC Chairman Mary Jo White to be removed for failing to implement a “rule” regarding corporate political donations that Warren favors. Levitt correctly calls out Warren for improperly trying to influence the SEC’s “agenda”, but his reasoning reveals the mindset of these unelected bureaucrats and how shamelessly unmoored from the Constitution the regulatory state has become.

Levitt says:

No rule—no matter how merited—is worth the damage that would be caused if the SEC were compelled by political intimidation to write it. That’s not how good regulations emerge, and what’s worse, it would poison the regulatory process for all time. The moment the SEC loses its ability to set its own agenda is the moment it loses its ability to protect the investing public.

The SEC does not operate as a pass-through entity for Congress, merely following congressional direction. Rather, it’s an independent agency, and its chairman is empowered to set the agenda for the agency’s work. This agenda takes shape in many forms—rule makings, speeches and enforcement actions—and must be set by the chairman, not Congress. This is by design.

Say what? The “agenda” of unelected bureaucrats agency “must be” set by themselves and not by the elected members of Congress? Perhaps Levitt would like to point out where in the Constitution such bureaucrats have been granted this rather awesome power. Contrary to what Levitt seems to think, that the SEC is supposed to operate as a “pass-through” entity for Congress, following its direction, is the only way it can operate that would justify its existence.

Levitt goes on to say:

That’s not to say the agency should be free from congressional oversight. Throughout its history, politicians from both parties have sought to influence its work. That’s to be expected, and a good regulator welcomes outside views, especially those coming from elected leaders who write the laws the SEC implements. Ultimately, Congress holds the power to pass laws requiring agency action; and that option is available to Sen. Warren.

But Congress must respect the SEC’s independence, and thus freedom, to focus on a fixed agenda. Once confirmed to lead the SEC, its chairman has a singular goal: To meet the agency’s mandate to protect investors, facilitate capital formation, and ensure fair and orderly markets.

Well, isn’t that generous. Good regulators should “welcome” the “outside” views of elected representatives, the very people who are actually empowered by the Constitution to write legislation.

Levitt is of course correct to inform Warren that if she wants to impose a new law, Congress has the power to do exactly that through actual legislation. But it is precisely the vaguely defined regulatory “mandate” that Levitt himself embraces which allows the likes of Warren to think that she can impose new laws without the hassle of actually going through the constitutional process.

This is an excellent example of how pervasive and shameless the undemocratic, unconstitutional mindset that typifies the regulatory bureaucracy has become.

(This link may or may not work to get the article…not sure: http://on.wsj.com/2e3zIc8)

Unfit for the Presidency

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” – Oath of office of the President of the United States

Donald Trump’s fitness for office has been a much discussed topic during this campaign season. Democrats, not surprisingly, dismisses him as entirely unfit to be President. A bit more surprising, at least on the surface, is the sizable contingent of non-D’s, conservatives and libertarians alike, who make equally strong pronouncements about Trump’s lack of fitness for the office. To be honest, I count myself among those who do. Notably, however, there has been an almost complete lack of any discussion about his opponent’s fitness for office. Why is that?

It seems that simply because HRC is a standard politician, acting well within the bounds of behavior and ideology that are standard for her party, and she has maintained a long-standing presence and a good deal of experience on the American political scene, that she is deemed to be suitable to hold the office, even by those who think she is entirely wrong from a policy perspective. She is wrong, they say, but wrong within the normal bounds of American politics. I think that notion is worth challenging. Specifically, I’d like to propose that, as a progressive, HRC is ideologically unfit to be the president.

Now, by ideologically unfit to be president, I do not mean simply that her policy preferences make her unfit. I do not think that she is unfit because she is pro-abortion, or because she favors raising the national minimum wage, or any of the other policy stances on which I hold an opposing view. What I mean is that her progressive ideology prevents her from honestly taking the oath of office. If she were to profess that as president she will protect and defend the Constitution of the United States, she would be professing a lie. Simply put, progressivism as an ideology is not compatible with the US Constitution.

This really shouldn’t be a matter of too much controversy. In a campaign speech in 1912 proclaiming the virtues of progressivism, the original American progressive, Woodrow Wilson, laid out the basic conflict between progressive ideology and our founding document. Using the strained metaphor of government as a “living thing”, he asserted that government cannot be constrained by fixed rules, as a machine is constrained by Newtonian laws of physics. It is ever changing and must “evolve” according to its environment, just as organic life evolves. (Wilson was apparently under the strange impression that the evolution of living things takes place outside of the laws of Newtonian physics.).

Wilson’s progressivism was particularly opposed to the constitutional notion of the separation of powers as a means of protecting citizens from abuses of power. He disparaged the idea, fundamental to the Constitution, of “checks and balances”.

The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other, as checks, and live.

Instead, Wilson argued, the various power centers of government must be centers of “quick cooperation” in pursuit of “their amicable community of purpose”, responding to “the commands of instinct or intelligence”. The source of this “purpose” and the “commands of instinct and intelligence” guiding government power was not identified, but the implication was clear. The various branches of government ought not be checking the power of the others, but rather should be acting in concert to achieve government directed “progress”. To the extent that there are to be any “checks and balances”, they are checks against the lack of “quick cooperation” in implementing progressive policy.

Wilson did not hide the fact that this represented a unique approach to the constitution and to government, saying:

All that progressives ask or desire is permission—in an era when “development,” “evolution,” is the scientific word—to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.


Thus was born the radical notion of a “living” constitution, which changes not by the process explicitly laid out in the Constitution itself, but rather by an assumed-to-be natural process of simple re-interpretation, required by the presumed needs of the day as determined by the government itself. Or, in other words, a completely unconstitutional approach to the Constitution, one in which the only limit to the power of the federal government is the willingness of those in power to claim that circumstances require that power to be exercised. And one that has gained traction in undermining the Constitution ever since.

This disdain for the restraints that the constitution places on the federal government, and hence on the ability of the federal government to effect progressive goals, as well as disdain for the constitutional method by which the Constitution can explicitly “evolve”, has grounded progressive politics since Wilson. It was the basis for FDR’s radical New Deal legislation and his subsequent strong-arming of SCOTUS into allowing it. It is the basis on which progressives have come to appoint judges to the federal courts, making a litmus test out of a willingness to adopt the “living constitution” theory of interpretation, changing the Constitution not by popular acclimation but instead simply by judges declaring that it says what they want it to say. It is the basis for much of Obama’s executive actions as president, the perfect example of which is his immigration policy on amnesty and deportations, which he explicitly acknowledged in 2011 that he did not have the constitutional authority to implement, but he later went and did it anyway.

This is the legacy of progressivism that HRC has inherited and the ideology which she seeks to further as the president. And it is inherently in conflict with the Constitution. To be clear, this is not an argument that progressive ideology is deficient (although I think it is). This is not an argument that progressive goals pursued at the federal level would be to the detriment of the nation (although I think, on the whole, they have been and would be). It is simply an argument that progressivism, whether good or bad for the nation, is not compatible with the Constitution as it actually exists. Which means any progressive who would take the office of the Presidency must, of necessity, lie when taking that oath.

I think that anyone who cannot sincerely and honestly promise to protect and defend the Constitution of the United States as president, or worse anyone whose ideological goals requires them to actually subvert or ignore the Constitution, is quite simply not fit to hold the office. Hillary Clinton is just such a person.*

*So, BTW, is Donald Trump, which is exactly what makes this election so painful for anyone who actually cares about American constitutional government.

Brexit Report: Chaos ensues

The UK voted to leave the European Union last night, 52% to 48%. taking the market by surprise. All markets had discounted the possibility of a Leave vote going into the referendum, resulting is massive market moves once it became clear that Leave had won the day.

The GBP dropped nearly 14% at one point, from 1.49 down to 1.30. It is currently back up to 1.39.

Rates across the globe have rallied. The UST 10yr note is currently at 1.54%, and traded as low as 1.42%, after closing yesterday at 1.73%. German 10yr bonds are back into negative yield territory, having dropped to -.15%, although they have since sold off back to -.07%.

Stock markets have been crushed. The FTSE is down 271 points (4.3%) but is off the lows, having opened up down almost 600 points. Dow and S&P futures are down 472 and 71 points respectively. The UK financial sector has been hit particularly hard. Barclays and RBS were each down nearly 30% at one point. Eurpoean banks are down roughly 8% across the board.

Prime Minister David Cameron has already resigned. It is unclear who will replace him atop the Conservative Party, or whether he will call for a national election, but former London mayor Boris Johnson, who was a vocal Leave supporter, certainly has to be looking good. Populist leaders across Europe, from Sweden to France, are already calling for similar referendums in their own countries, although the likelihood of it happening any time soon is remote, especially given the complicating factor of the single currency, which the UK was never a part of. More probable is that people will wait to see how Britain’s exit plays out. But clearly this is a bad sign for the future of the European project.

Next up: Texit?

Missing Morning Report Open Thread 5/18/16

Figured after 5 days it was time to open up a new post.

On Scalia’s replacement, Senate R’s should follow Obama’s lead

Yes, you read that headline correctly. In the wake of the extremely untimely death of Justice Antonin Scalia, I believe that Senate Republicans should follow Barack Obama’s lead when it comes to the next Supreme Court nomination. Specifically they should follow the path laid out by then Senator Obama in a 2005 speech explaining his decision to vote against the nomination of John Roberts. Specifically, Obama said that:

…while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.

Republicans in the Senate should take that standard to heart and both act and vote accordingly whenever Scalia’s replacement is finally nominated.

To be honest, Obama’s standard for evaluating a judicial nominee has almost nothing to recommend it. It has no basis in the Constitution, nor in historical tradition, nor in the oath that Judges take, nor in any common sense understanding of the role the judiciary can legitimately play in a democracy. Although calling it “Obama’s standard” is not entirely fair. In his speech Obama merely made explicit what had been implicit long before Obama came along, at least since 1987 and the defeat of the nomination of Robert Bork to the Court, and that is that the judiciary is a political branch of the government that makes decisions based on not on the law or the constitution, but rather on the personal values and political philosophy of individual judges.

Again, there is almost nothing to recommend Obama’s approach to nominating and confirming judges. Almost. The only thing that does recommend it is that it is already a reality for roughly half of those involved in the process, including half of those already on the court. Given that reality, R’s have virtually no choice but to play by the same rules. To be sure, embracing those rules is destined to alter the nature of our political system beyond recognition, but R’s must face the fact that it has already started to happen without them, and will continue to happen with or without them. The best they can hope to do is embrace this new system in the hopes of influencing the system towards their own values. The idea of objective law being applied objectively by judges seeking to understand the law on its own terms regardless of personal values is, we must admit, a failed experiment.

A baseball team facing an opponent that not only routinely ignores the written rules of the game but has bought off half of the umpires in its effort to do so has no choice but to follow suit. Republican Senators must establish explicit political litmus tests for potential nominees to the court, and must apply those tests ruthlessly, using all possible political machinations to impose their will. They must, as Senator Obama did, vote only for those nominees to the court which reflect their own “deepest values”, their own “core concerns”, their own world philosophy, their own notion of who deserves “empathy”.

The days of allowing well qualified judges of any political stripe to sit on the court are over. We may lament that fact, but we must accept it nonetheless. The Court is now a political branch of the government, and to treat it as something different is to deny reality. The politics of nominees to the court explicitly matter. R’s must do everything they can to understand the politics of future nominees, and reject any nominee that does not reflect their own conservative values and a conservative understanding of the constitution. In other words, they must take Obama at his word and do exactly what he would have them do. The Democrats asked for this kind of process. R’s should give it to them.

Super Bowl Rant and Open Thread

I’m watching the pre-game show and naturally CBS cuts to an interview with the Obamas. Sigh. Is there no occasion in this country that can pass without the precious thoughts of a fucking politician being foisted on us?

Newsflash: The president (any president) is a mere politician, not a monarch anointed by the hand of God. We have no need to hear him pontificate on every event, big or small, that takes place in the nation. The guest list for his party is completely unimportant to me. I don’t give a rat’s ass what kind of food he is serving. I couldn’t care less which team he is rooting for. Doubly so for the First Lady, for goodness sake. And I think anyone who does care is a moron.

It is actually quite baffling. The opinion of the ordinary person towards politicians in general is usually one of overwhelming contempt, and rightly so. Yet when a politician is so “good” at all the vile things that politicians do and are that they rise to the highest political office in the country, suddenly we are supposed to wait with bated breath for his sage thoughts on all things big and small. What does he think of the Super Bowl? What does his March Madness bracket look like? What is he saying about the latest tragedy in a small town in the middle of nowhere?

Someone stop the madness, please.

Rant over…open thread.

Refuse to Go Red for Women

According to the American Heart Association, the prevalence of heart disease among men is greater than among women in every age demographic. In the 60-79 age bracket, the prevalence among men is more than twice what it is among women. More than 1.4 times as many men as women have had a diagnosed heart attack or fatal coronary disease across all age groups.

In light of those statistics, it makes perfect sense, of course, that this Friday is Go Red For Women Day, during which the American Heart Association encourages people to wear red in order to “help support educational programs to increase women’s awareness and critical research to discover scientific knowledge about cardiovascular health.”

According to the AHA:

In 2003, the American Heart Association and the National Heart, Lung and Blood Institute took action against a disease that was claiming the lives of nearly 500,000 American women each year – a disease that women weren’t paying attention to. A disease they truly believed, and many still believe to this day, affects more men than women.

Um…it does affect more men than women. It is rather unbelievable that the AHA is attempting to disabuse women of a plain and simple fact.

This is all of a piece with our increasingly female-centric culture which attempts to instruct us that whatever problems exist, they are inevitably worse for women. (Climate change to hit women hardest!) It is bad enough we have to suffer through sports seasons in which players, coaches and officials are pressured to where pink in order to “raise awareness” for breast cancer several times a year. At least women do in fact suffer from breast cancer more than men do, even if the “awareness” of the disease far outweighs its dangers relative to other women-killers. But this is just taking things to an absurd level.

Whatever this says about the AHA in particular or our screwed up society more generally, I highly encourage everyone to refuse to wear red this Friday, to protest this sexist denial of reality. Don’t believe it and don’t accept it. And keep your eye out….if, on Friday, you see more people without red on than with it, know we are winning the battle!

(BTW, I found out about this Red Day foolishness because my HR department, in that cloying way that only HR departments can achieve, sent around a circular encouraging all employees to wear red on Friday. When I presented them with the statistics on heart disease and wondered if they had ever promoted to employees a “men’s awareness” movement of any kind whatsoever, they replied, again in typical HR manner, “We are always looking for volunteers to promote important causes across a wide range of missions.” I’m taking that as a firm “No”.)

%d bloggers like this: