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Great America

A New Dred Scott Decision Immortalizing Bureaucracy

Aided by a life-tenured court, the administrative state may have found its Dred Scott case in DHS v. Regents—and thereby the means for making itself the true ruler of America.

Just as the infamous Dred Scott case in 1857 would have extended slavery throughout America, so Thursday’s decision in Department of Homeland Security v. Regents of the University of California threatens to make the machinations of bureaucratic government supreme and unrepealable.

Chief Justice John Roberts’ 5-4 court opinion strengthens the grip of the administrative state—the interlocking network of bureaucracy and political correctness—over the democratically elected branches that are supposed to make us a nation of self-governing citizens. 

The Supreme Court, in a seeming conspiracy with lower federal courts, has tilted the table against the elected president and his appointees in favor of bureaucratic governance. 

As dissenting Justice Alito pointed out, “the Federal Judiciary, without holding that [the Deferred Action for Childhood Arrivals program] cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.” The judiciary, far from clarifying and drawing bright lines, has effectively become part of the bureaucracy.

Admitting that the equal protection or due process rights  of the children of illegal residents—a.k.a. “the dreamers”—were never in jeopardy, Roberts nevertheless concluded that the Trump Administration’s repeals of unlawful Obama Administration actions are illegal because the appropriate provisions of the Administrative Procedures Act were not followed. In his dissent, Justice Clarence Thomas (joined by Justices Samuel Alito and Neil Gorsuch) noted that as a result of this ruling, the Department of Homeland Security “is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.”

Despite the illegality of DACA and other policies, which were never laws to begin with, there remains the question of how we are to be free of arbitrary and capricious bureaucratic edicts and decrees. 

The American people must stand in a long line and wait years. Fill out the proper forms. Perfectly. Even though the previous administration ran roughshod over the law, you have to follow the right procedures to end their illegal actions.

While President Trump blasted the decision for the setback it meant for his immigration policies, the opinion in DHS v. Regents is more portentous for what it illustrates about our ability to change any policy, whether legal or illegal, that an elected government strongly supports. In other words, as Thomas warned, “the ripple effects of the majority’s error will be felt throughout our system of self-government.” 

To repeat: the error is the most basic separation of powers error possible: The court confused itself with the Congress and began making policy demands of the executive: 

Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision. The Court could have made clear that the solution respondents [the dreamers] seek must come from the Legislative Branch. Instead, the majority has decided to prolong DHS’ initial [illegal, as all concede] overreach by providing a stopgap measure of its own.

We are reminded that Roberts engaged in creative jurisprudence in his infamous majority opinion portraying Obamacare as a tax. And just three days before this case, Justice Gorsuch revised the meaning of “sex” in Title VII of the 1964 Civil Rights Act to mean sexual orientation. But even more apropos is Roberts’ protection of bureaucracy in Department of Commerce v. New York (2019)

In that controversial case, the chief justice, again siding with the court’s liberal wing, tried to depoliticize a case but only ended up protecting the partisans who reside within permanent bureaucracy against the secretary of commerce, who had wanted to add a citizenship question to the Census. Roberts claimed this was “pretextual,” but that is deceptive. As a dissenting Justice Thomas observed, “the Court’s decision enables partisans to use the courts to harangue executive officers through depositions, discovery, delay, and distraction.” 

By departing “from traditional principles of administrative law,” the court’s decision, Thomas protests, could even implicate separation-of-powers concerns insofar as it enables “judicial interference with the enforcement of the laws”—as it certainly has with DACA. In both the Census and the DACA cases, Roberts seems to use administrative law arguments as a means of protecting illegal immigrants from the Trump Administration’s policies. 

In the DACA case, Justice Thomas notes “perverse incentives,” with a hint to the Trump Administration going forward:

Under the auspices of today’s decision, administrations can bind their successors by unlawfully adopting significant legal changes through Executive Branch agency memoranda. Even if the agency lacked authority to effectuate the changes, the changes cannot be undone by the same agency in a successor administration unless the successor provides sufficient policy justifications to the satisfaction of this Court. In other words, the majority erroneously holds that the agency is not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration.

The most penetrating critic of the administrative state, John Marini, had warned in 1988 against conservatives’ relying on the Supreme Court in their battles with this leviathan. The administrative state has great intellectual suppleness and the arrogance bred of a self-satisfied sense of moral superiority, and judges share a common lineage with it.

Aided by a life-tenured Court, the administrative state may have found its Dred Scott case in DHS v. Regents and thereby the means for making itself the true ruler of America. Whether this will portend a new civil war over whether Americans are subjects or citizens is an open question. For one thing, it isn’t a war unless citizens recognize they are being fired upon.

Great America

Census Tech and #TheResistance

We have already seen how some in the permanent bureaucracy have made it their mission to run interference against the current president’s policies. Government tech is yet another example of this.

Census notices started hitting mailboxes across America this week. For the first time ever, they offer the option of filling out census forms online. That’s a very good thing in this age of coronavirus, especially as the Census Bureau just took the unprecedented step of suspending field operations to protect the safety of the American people.

The move online notably also comes a month after the bureau suddenly changed its digital service provider. The Government Accountability Office on February 13 announced the bureau would shelve the response software it had bought from Pegasystems Inc. and switch to Primus, a software developed by the federal digital services agency 18F. The official reason for the move: “scalability issues.”

We don’t really know how much money was spent on the Pega software that will now not be used. Reuters reports that the  contract was “projected to cost about $167.3 million, but includes products and services beyond the shelved software.”

We do, however, know a bit more about 18F. A look at this in-house government agency gives an indication of the degree to which many government departments, down to the techies’ office, have been captured by the Left.

Judging by views expressed on social media, in press interviews, in op-eds and in blogs, 18F is staffed by a tightly knit group of ultra-progressive tech whiz kids with strong opinions on transsexual politics, the climate, income inequality, and so forth. Unsurprisingly, 18F has ties to Code for America, an equally progressive, San Francisco-based group.

Both outfits have strong links with the Obama White House.

18F was formed in 2014 to house President Obama’s Presidential Innovation Fellows, a program created after the 2013 HealthCare.gov fiasco. While the PIFs were techies who took year-long sabbaticals from their Silicon Valley jobs, 18F hired tech professionals for the long haul.

But with a new administration that was proposing conservative policies, many 18F workers expressed outright despair or decamped altogether to work for friendlier governments in the Canadian provinces or back to Silicon Valley.

“The reality is that many of the people who are qualified to do the technology, design, and digital strategy jobs that need doing in government are deeply disturbed by and in many cases fearful of many of Trump’s proposed policies. In transparency, I count myself among them,” wrote Jennifer Pahlka, the woman who helped found both Code for America and 18F.

In that same column, written just a month after the 2016 election, Pahlka urged her colleagues to stay on for two reasons: first, to make more government work faster and second, to form an internal resistance to policies the Left opposes.

“When it comes to policies that could harm our communities, whether in civil rights, the climate, immigration, or other arenas, resistance will be necessary to even maintain the status quo,” she wrote. “If the Trump administration fulfills its worst promises, people with conscience, fighting from the inside, could be our best hope of mitigating their worst effects.”

Other Silicon Valley people echoed Pahlka’s sentiment. Writing just three days after President Trump was inaugurated, Jessi Hempel, the head of editorial for Backchannel, proclaimed:

[W]hen you accept an appointment in the government, you don’t work for Trump. You work for the American people, upholding the values outlined in the Constitution. We need thoughtful progressive techies to put [the] American people first . . . what’s more, if you have the seat at the table, you have the ability to resist.

Hempel blithely elides the fact that the American people express themselves through their electoral choices, and that the president and his party’s majority in the Senate were duly elected. The Constitution, of course, is the bulwark of this arrangement, so upholding its values and working for the people would not be resisting political decisions.

Hempel goes on to quote tech guru Tim O’Reilly, who also happens to be Pahlka’s husband. “If we go, ‘How do we get all these Muslims registered so we can roll them into camps,’ or, ‘How do we get all these people deported’,” O’Reilly says, “there may be some things where we go, ‘No, actually we would like government to be incredibly inefficient with that’.”

Does that mean writing slower code for the policies chosen by a government elected by the American people but hated by the Left? What would have happened if the citizenship question the administration wanted in the census, but which the Left convinced the courts to take out, had been left in?

There is no app for knowing how many 18F staff hunkered in to follow Pahlka’s advice. (And the people who could write that app would certainly make it go very slow.)

StateScoop reports that, according to Pahlka, the progressive tech movement is now so deeply embedded in all levels of government, there is nothing the administration can do. “One of the things that makes me so hopeful about where we are is that we have built a fabric of people,” she was quoted as saying.

This appears to be more than wishful thinking. Consider the words of Matt Cutts, head of the U.S. Digital Service—another outfit established under Pahlka’s leadership in the Obama era. In 2018, Cutts told Wired that his service would be less likely to publicize how they help asylum seekers get better customer service in the current administration.

“We might talk more about how we save money,” he said gamely. Cutts, a former Google official tapped by Obama, gives generously to progressive causes.

We have already seen how some in the permanent administrative state have made their mission to run interference against the current president’s policies. Indeed, the impeachment fiasco was launched by a career official who fed information to the president’s congressional foes.

The Census Bureau is already a victim on this score. Its National Advisory Committee on Race and Ethnicity is Exhibit A of agency capture by leftist activists. Many of its members led the effort against including a citizenship question on the census.

Here is how the system is meant to work: Americans elect their leaders to implement the policies they want. They shouldn’t have their preferences slow-rolled or killed by an unelected, managerial elite high on tech and self-righteousness.

Great America

Elizabeth Warren’s Consumer Protection Scam

In Elizabeth Warren’s America, Middle America will pay the price for the imagined racism of algorithms.

Senator Elizabeth Warren (D-Mass.) may no longer be running for president, but her agency lives on.

The Consumer Financial Protection Bureau (CFPB) doesn’t want to be controlled by the Trump Administration. The Supreme Court might end the agency’s streak of independence later this year. Ostensibly, the CFPB aims to protect ordinary Americans from untoward business practices. Instead, it only advances left-wing causes and identity politics. 

Warren proposed the CFPB in 2007 when she was a Harvard law professor. President Barack Obama established it in 2010. It is supposed to protect Americans from malpractice in the financial industry, yet the CFPB’s main task during the Obama Administration was fighting “disparate impact.” Disparate impact is a legal concept that considers racially disproportionate outcomes as evidence of discriminatory policies, even if the policies had no discriminatory intent and were administered objectively.

CFPB’s first director, Richard Cordray, said in a 2012 speech that one of the core missions of his agency was to protect “communities of color” from disparate impact. He added that “it is important to recognize that this subtle but powerful form of discrimination creates damages that are no less direct than the kind of overt and blatant discrimination that, we hope and assume, is increasingly a relic of a bygone era.”

In 2013, CFPB officials claimed they “found substantial and statistically significant disparities between the interest rates paid by African American, Hispanic, and Asian car buyers compared to the interest rates paid by white car buyers with similar credit scores and other factors.” The agency issued a “guidance” letter urging banks to step up their anti-discrimination practices and pressure car dealers to follow suit. In turn, banks told car dealers they would have flat fees imposed if they didn’t comply. Dealers could no longer offer flexible financing deals to consumers. 

The CFPB used dubious methodology. The Equal Credit Opportunity Act bars lenders from collecting data on race, sex, and ethnicity. Thus, banks can’t provide reliable racial data. Therefore, the CFPB guessed applicants’ races based on last names and addresses. Worse, CFPB officials knew this analysis wasn’t accurate. A 2013 CFPB memo claimed there was “reason to believe that our proxy is less accurate in identifying the race/ethnicity of particular individuals than some proprietary proxy methods that use nonpublic data.” 

Internal documents show that the agency planned to hide its dubious research methods. When some information was eventually released, analysts discredited it. The Wall Street Journal determined that the CFPB’s algorithms couldn’t figure out the race of someone with the surname “Obama.” According to one analysis, “Only 54% of the applicants identified by the proxy methodology as African-American were actually African-American.”

These ridiculous efforts had serious consequences. Ally Bank was forced to pay out nearly $100 million after the CFPB pressured it over racial discrimination claims. The government also forced expensive settlements on Fifth Third Bank, Toyota, and Honda. The Wall Street Journal concluded that the CFPB’s policy created higher car loan costs for everyone.

The agency used similar methods to analyze mortgage and small-business lending. In 2015, it announced that banks would have to document small business lending by race. The CFPB accused banks of not lending enough to minority-owned businesses and planned to bully them into approving more loans. 

One reason banks are reluctant to loan to nonwhites is that they often have worse credit and higher default rates. A 2016 Freddie Mac study found that nearly half of African Americans have poor credit. Blacks default on student debt twice as often as whites.

Warren’s dream agency blames these outcomes on systemic racism. The CFPB pressures banks to give more loans to nonwhites and punishes them if they don’t.

Republicans fought back. Congress scrapped the CFPB’s auto lending guidance policy last year. President Trump appointed new management that scaled back disparate impact investigations.

This angered Warren. “This is part of the broader Republican attack on the efforts to fight economic discrimination,” she said, urging Senate colleagues to vote against eliminating the guidance policy. Just one Democrat, Joe Manchin of West Virginia, voted to scrap it.

Warren and other progressives are pushing for more investigations of disparate impact. The NAACP and other left-wing groups sent a letter in June demanding that CFPB crackdown on “discrimination” in the student loan industry. Warren herself sent a letter to the CFPB that same month warning that the algorithms used by financial companies to make lending decisions discriminated against “Latinx and African American borrowers.”

Earlier in October, Warren wrote a column for the Boston Globe attacking Housing and Urban Development’s new rules that make it harder to claim housing discrimination. “We should all be in this fight—because this isn’t just about housing, it’s about the kind of America we want to live in,” she wrote.

Elizabeth Warren is right­. It is about the kind of America we want to live in. In her America, algorithms are racist. In her America, protecting consumers means fighting “disparate impact.” In her America, Middle Americans pay the price.

Conservatives • Donald Trump • Greatness Agenda • Uncategorized

The “Fourth Branch of Government” Threatens the Constitution’s Three

The barely concealed in-house revolt by federal bureaucrats against the Trump Administration has been a long time coming and reveals the greatest internal challenge to the Constitution’s provisions for separation of powers. No one made the issue plainer than James Madison when he wrote in “The Federalist Papers”:

The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few or many, and whether self-appointed, hereditary or elective, may justly be pronounced the very definition of tyranny.

That sentence offers no wiggle room. And generations of Americans, both in and out of government, have taken it to heart. Yet for at least a century, the modern administrative state has been usurping the powers and functions of the authorized branches and, with them, the sovereignty of the American people which is the source of the Constitution’s authority over the organization of our government. Now that there is a president determined to roll back the flood of stifling regulations imposed by a combination of rogue executive orders and departmental “guidelines,” many in the career civil service are in open rebellion.

The first sign of this defiance of the fairly elected chief executive came with conspicuous leaks of sensitive information regarding the pre-Inaugural contacts alleged between National Security Advisor Michael Flynn and Russian operatives. Regardless of the merits of those contacts, it is clear that the object was to torpedo Flynn’s appointment and cripple policy making.

Prior to the presidential election, the nation had already been treated to a well-orchestrated announcement by scores of anonymous “intelligence officials” that the Russians tried to influence the outcome in Trump’s direction (or more precisely against Hillary Clinton’s).

The explanation for this startling development is more mundane than shocking. A plurality of federal employees are Democrats and a great majority give to Democratic Party candidates. The problem is not new.

For example, Richard Nixon was charged in the impeachment resolution with attempting to manipulate the CIA and the FBI for political purposes. As questionable as that attempt was, a failed attempt is not the same as a successful one—which the FBI’s failure to indict Hillary Clinton for her unlawful email server clearly was. The political motivation was clear for anyone with eyes to see.

The textbook for an American government course I took long ago spoke of the “fourth branch of government,” meaning the rise of a vast administrative apparatus which exercised quasi-legislative and quasi-judicial functions. That referred to the practice of issuing regulations to fill out the details of often very broad and amorphous congressional statutes and actually adjudicating disputes arising from those regulations.

Even a confirmed judicial originalist such as the late Associate Justice Antonin Scalia felt obliged to give deference to those regulations as long as they were “reasonable.” I think it not unreasonable to hold that even the most reasonable people can disagree over what is in fact reasonable.

For as current Justice Samuel Alito pointed out in a recent speech for the Claremont Institute, federal agencies are manifestly unreasonable in their interpretations of federal law. Designating water on private property as a “waterway” in order to justify regulating it, or rewriting the levels for greenhouse gases to justify controls on carbon dioxide (what we all exhale), were two shocking examples Alito called out.

Edward Gibbon showed in The Decline and Fall of the Roman Empire how Rome’s Praetorian Guard became so indispensable to the Emperor’s power that in time no one could be selected for or survive in that position without the Guard’s approval. We are fast approaching the day when no President can govern without bureaucratic approval.

Let us be plain. The founders of the modern administrative state, most notably Woodrow Wilson, saw the separation of powers as an unwelcome obstacle to allegedly wise governance. By contrast, because the American Founders knew that human beings were fallible creatures fully capable of corruption by power, they pitted the very ambition that drove citizens to seek office against the ambition of their rivals.

By requiring the approval of the House of Representatives and the Senate, along with that of the president, the Constitution does all that is humanly possible to prevent tyranny in the form of bad laws, decisions or decrees.  But when unelected officials in the executive branch can either usurp power belonging to duly constituted office holders or defy those in authority over them, we are in a constitutional crisis.

God knows the people elected an imperfect man as president. But despite (or perhaps because of) Donald Trump’s rough edges, he not only is authorized to exercise his constitutional authority but in fact is setting into motion long-overdue changes. He points to the complexity of the problem with the disarmingly simple formulation that for every new regulation two more must be repealed.

Our appointed officials serve at the pleasure of our elected ones and cannot be permitted to substitute their judgment for those over them. That in fact is what “transparency” in government is about.