Commentary Magazine


Posts For: June 26, 2014

One Chance to Hold the IRS Accountable?

Though the IRS and its commissioner have been on the hot seat in recent congressional hearings, there is little doubt that the agency and the Obama administration believe they can ride out the storm by stonewalling Republicans asking questions about the scandal and the missing emails that are now at the center of the controversy. But an otherwise obscure legal challenge to the tax-collecting bureaucracy may hold the key to bringing some measure of accountability to the nation’s tax collectors.

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Though the IRS and its commissioner have been on the hot seat in recent congressional hearings, there is little doubt that the agency and the Obama administration believe they can ride out the storm by stonewalling Republicans asking questions about the scandal and the missing emails that are now at the center of the controversy. But an otherwise obscure legal challenge to the tax-collecting bureaucracy may hold the key to bringing some measure of accountability to the nation’s tax collectors.

As we’ve noted numerous times here, there are still a lot of unanswered questions about how and why the IRS singled out conservative groups for scrutiny when they applied for tax-exempt status. But concern about this blatantly illegal political bias has been only compounded by the revelation that the emails of the woman at the center of the affair—department chief Lois Lerner—were lost in a mysterious computer crash. It now turns out that not only was the damaged computer hard drive recycled but that the agency also erased its own email servers. As has been pointed out repeatedly by IRS critics, taxpayers and corporations are required by law to preserve all of their communications for seven years in case they might be audited. But the IRS, a government body with nearly unlimited powers to wreck the lives of individuals that come under its scrutiny, doesn’t live by the same laws that they rigorously enforce against ordinary citizens.

But despite the suspicious nature of the missing emails and the fact that the agency cancelled the contract of the IT service provider at the same time that it lost vital information at the heart of this scandal, there seems little that critics can do about it other than to hound IRS Commissioner John Koskinen in hearings. Though his story is merely a sophisticated version of the old “dog ate my homework” excuse, Koskinen hasn’t lost his cool or cracked under the pressure. That’s due to what appears to be a thick hide and his confidence that congressional Democrats will always cover for the administration no matter how outrageous its behavior. Since Lerner has pled the Fifth Amendment in her attempt to avoid answering questions and Attorney General Eric Holder will never launch a genuine investigation of this affair or appoint a special prosecutor, it doesn’t seem like the angry Republicans can do much but to huff and puff at Koskinen or any other hapless IRS official that attempts to tell the same lame story he’s been trying to sell Congress.

But, as I noted last month, there appears to be one hope, albeit a slim one, for some measure of accountability about the IRS’s unconstitutional behavior: a lawsuit by a small pro-Israel group that was told by agency employees that its application for non-profit status was being scrutinized because of its opposition to the Obama administration’s foreign policy.

After years of stonewalling the case, the IRS was dealt a staggering legal setback last month when a federal judge ordered that the agency must answer the lawsuit. That response is due today. But the events of the last few weeks in which we have learned of the disappearance of Lerner’s emails makes it all the more interesting since as the defendant in the case, the IRS had the obligation to preserve all records relating to the alleged discrimination against Z Street. Since Lerner was the official supervising those who were dealing with Z Street during this period, that makes the missing evidence even more crucial. Moreover, as the plaintiffs pursue their case they will have the ability to compel IRS officials to testify as to their practices and produce all records. If they don’t that will only strengthen Z Street’s case.

Though Congress may not be able to do more than rail at Koskinen and the IRS, the Z Street case will not only open up a window on their behavior but, as the Wall Street Journal editorial page wrote earlier this week:

Attorney General Eric Holder won’t name a special prosecutor, but there’s still plenty of room for the judge in the Z Street case to force the IRS to explain and answer for its “willful spoliation” of email evidence.

The spectacle of a ruthless tax agency acting illegally and with seeming impunity undermines the rule of law and faith in our democratic system. And since neither Democrats nor their cheering section in the media appear willing to rise up and pressure the administration to appoint a prosecutor who will investigate these extremely suspicious coincidences and missing evidence (which would have liberals screaming for impeachment if the two sides were reversed and a Republican administration behaved in this manner), not much may happen to anyone in the scandal and the agency may escape accountability. But the Z Street suit has the potential to reveal more about this scandal than all the committees in Congress may ever be able to produce.

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No Separating Palestinian Corruption From Terror

As the second week of the search for the three Israeli teenagers abducted by Hamas terrorists comes to an end, the announcement of the names of two prime suspects in the kidnapping is all that passes for progress in the search. But while these Hamas operatives are still on the loose, the international community is grappling with what it seems to consider a more important problem: how to pay 42,000 Hamas employees in Gaza.

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As the second week of the search for the three Israeli teenagers abducted by Hamas terrorists comes to an end, the announcement of the names of two prime suspects in the kidnapping is all that passes for progress in the search. But while these Hamas operatives are still on the loose, the international community is grappling with what it seems to consider a more important problem: how to pay 42,000 Hamas employees in Gaza.

The 42,000 Hamas workers seem to be the big losers in the Fatah-Hamas unity agreement that put an end to Secretary of State John Kerry’s Middle East peace initiative. The unity deal was motivated in large measure by the fact that the Islamist group has run out of money due to its break with its former Iranian sponsors and the shutting down of smuggling tunnels to Egypt by the military government in Cairo. They hoped the shortfall would be resolved by going into business with their Fatah rivals in control of the Palestinian Authority. The PA, which is subsidized via aid from the European Union and the United States, was supposed to pay the salaries of the 42,000 Hamas government employees. But since the Fatah-run kleptocracy has also been paying the salaries of the workers that it employed in Gaza since the Hamas coup in 2007, it has now said that it can’t afford to pay both them and the Hamas staff.

This both exposes the corruption at the heart of Palestinian governance and also raises some serious questions about how and why the U.S. can go on in its relationship with the PA.

The fact is Fatah governs the West Bank largely by the traditional Tammany Hall tactic of spreading around the wealth. The roster of Palestinians with government jobs of the no-work and the no-show variety is so vast that estimates vary. But no matter what the actual number is, the point is that Fatah uses foreign aid money to support large numbers of West Bank Palestinians in this manner. Hamas played the same game in Gaza before the cash ran out. Neither group cares much about actually using their funds to provide even basic services for Palestinians. The point of jobs that are in the gift of either Fatah or Hamas is to secure political loyalty and all that it entails when you are dealing with organizations that have both “political” and “military” wings.

That fact doesn’t come across in the latest sympathetic piece about life in Gaza from the New York Times. In it, the paper profiles two Gazans. One, a Fatah supporter, has been living the Palestinian version of La Dolce Vita since 2007 as he collected his full salary without ever doing a day’s work in the last seven years. The other, the Hamas supporter, made peanuts and was actually forced to perform some duties while his friends were in power. But now that they’ve run out of money, he’s been plunged back into poverty. The upshot of all this is that the international community needs to step up and give him his old salary back even though the tiny, though overpopulated Gaza Strip does not need two bloated sets of civil servants.

But what needs to be remembered here is that you can’t really separate what might be dismissed as routine political corruption from the more dangerous and deadly work that other people do for Hamas. The two Hamas members that are being named as suspects in the kidnapping have been missing since the crime occurred. That has led Israeli authorities to the not unreasonable conclusion that it wasn’t a coincidence that a pair of veteran terrorists who operate in the area of the kidnapping just happened to go out for a walk that night and never came home.

The international community, which has refused to shut down aid to the PA after it allied itself with open terrorists even after the kidnapping, may view the plight of the horde of underemployed Palestinian government employees as an entirely separate issue from that of violence. But though foreign governments may think Palestinian graft isn’t something they should care about, they need to understand that money that is donated to pay the out-of-work Hamas guy in Gaza is just as likely to find its way to men like the kidnappers. Money is, after all, fungible. The same applies to funds donated to the PA since it pays salaries and pensions to convicted terrorist murderers sitting in Israeli jails or living in a comfortable retirement after being exchanged for Israeli kidnap victims like Gilad Shalit. Though the PA is attempting to financially squeeze Hamas, as long as the terror group is going to be part of Mahmoud Abbas’s government, the notion that the PA is a legitimate peace partner is a myth.

If the Palestinians are to go on shaking down Western governments for contributions to pay their people for no-work or no-show jobs, they at least need to put a halt to terrorism. Sympathy for Palestinian workers is easy. But so long as the Israeli teenagers remain missing—and with each passing day hope for their safe recovery may be dimming—the West needs to refuse to go on doing business as usual with the corrupt Palestinian bureaucracy that turns a blind eye to, and subsidizes, terror.

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Reid Sets a Trap for GOP on Earmarks

Harry Reid is making trouble again. With Republicans still squabbling over the establishment-Tea Party rift, the Senate’s top Democrat sat down with reporters from the Huffington Post to offer some comments perfectly designed to make Republicans even angrier at each other.

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Harry Reid is making trouble again. With Republicans still squabbling over the establishment-Tea Party rift, the Senate’s top Democrat sat down with reporters from the Huffington Post to offer some comments perfectly designed to make Republicans even angrier at each other.

According to HuffPo:

Senate Majority Leader Harry Reid (D-Nev.) said he expects congressional earmarks will be revived and insisted senior Republican Party members support the return of congressionally directed spending.

In an interview with The Huffington Post, Reid argued that the prohibition on earmarks was a mistake that tipped the balance of power away from the legislative branch and toward the president. He said he wants the ability to approve specific spending projects to be put back under control of Congress.

Reid said top House Republicans have told him they support earmarks and would like to see the practice return. He said those he’s spoken to include “a very senior member of the House Republican caucus.” Reid wouldn’t name names, but said that the lawmaker is “still there” — meaning it’s likely not Rep. Eric Cantor (R-Va.)

Reid’s timing is almost certainly no coincidence. As political targets go, earmarks are the broad side of a barn. Because they explicitly direct taxpayer cash, it’s easy to find ridiculous pork-barrel projects and obvious wastes of money. During the Bush presidency, Majority Leader Tom DeLay used earmarks as a disciplinary tool. The more transparency that developed–that is, the more easily specific earmarks could be traced not only to their destination but back to their congressional source–the more easily they could be used much as campaign-finance regulation is used: as incumbent-protection plans.

Hence they came to be hated by conservatives even before the rise of the Tea Party. When Republicans gained and then lost control of Congress, much of it was blamed by the grassroots on GOPers falling prey to the lure of power and appropriations and forgetting its limited-government roots. Conservatives said Republicans deserved to lose because they began spending money just like Democrats.

The Tea Party’s arrival on the scene was part of this trend, and it’s easy to see why earmarks are a stand-in for precisely what drives budget hawks crazy about Washington. But they also posed a specific threat to the Tea Party: as districts became less competitive, the primary contests were where the real action was. And, in the House at least, winning a primary got you most of the way to punching your ticket to Congress. (The Senate has been a tougher party to crash.)

So Reid’s timing for dropping this hint about the return of earmarks was perfect, at least from his standpoint. Just a few years ago, an incumbent running against a self-described Tea Partier was an underdog. But this year, incumbents and establishment candidates have been able to push back. In part this has been because the Tea Party’s early victories have enabled it to shape the party’s congressional agenda, so primaries these days are often conservatives running against conservatives–Dave Brat against Eric Cantor is a much different matchup than Pat Toomey against Arlen Specter.

But the recent runoff victory by incumbent Thad Cochran over Chris McDaniel is highly relevant to the debate over earmarks. Cochran was expected to lose the runoff. Primary turnout is already lower than general-election turnout, and a runoff lower still. Usually.

Cochran turned the tables by crossing the aisle and making a successful pitch to Mississippi’s black voters, who are overwhelmingly Democratic. He did so by reminding black voters that he brings home the bacon for them, despite the fact that they don’t vote for him in general elections. Pro-Cochran groups hired black leaders to make the same plea. It worked, and Cochran won.

The lesson here is that Cochran’s record was not enough to placate the grassroots, but that he could win by emphasizing his spending on federal programs that help his state. If Republican leaders pine for the days of earmarks, it’s easy to see why. Not only could they help defeat conservative insurgents, but the House caucus has become far more difficult for the leadership to control–witness House Majority Leader Eric Cantor’s stunning loss to Brat, who had been abandoned even by Tea Party groups.

Reid is also handing his Republican counterparts a live grenade in offering a plausible-sounding justification for earmarks: they could help devolve spending power back to the Congress from the White House. It is, of course, a trap. Earmarks may not have been the budget poison they were sometimes made out to be, and they certainly weren’t all bridges to nowhere. But they will not stop this president from taking executive action, and they will not bring Democrats on board for the House GOP’s reform agenda.

Reid is trying to sucker the GOP leadership into a prolonged fight with its base that the establishment will eventually lose. At times earmarks got more attention than they warranted. But the GOP leadership doesn’t stand to gain from being their champion.

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Obama’s Climate Laughs No Substitute for Sound Economics

President Obama had a good time mocking congressional Republicans yesterday for being skeptics about climate change. But even he seems to know that selling his radical proposals that will cause serious economic pain will not be as easy a sell as jokes about Flat Earth Republicans.

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President Obama had a good time mocking congressional Republicans yesterday for being skeptics about climate change. But even he seems to know that selling his radical proposals that will cause serious economic pain will not be as easy a sell as jokes about Flat Earth Republicans.

As Politico noted, Obama’s speech to the League of Conservation Voters was notable mainly for the president’s comedy routine aimed at depicting those who haven’t bought into every aspect of the radical environmentalist agenda as extremists with a screw loose. The reason for this strategy is easy to understand.

If Obama’s talking about regulations, he’s losing. If he’s talking about carbon caps for power plants or energy emissions for air conditioners, no one cares. But if he’s talking about crazy Republicans who don’t make any sense—and by the way, are putting children at risk, he charges—well, that’s an argument he can wrap his arms around.

Given the stranglehold that the global warming crowd has on the mainstream media and, even more importantly, in popular culture, the president’s confidence that a majority of Americans may agree with him on climate issues is well founded. But the gap between a general belief that the earth may be warming and a suspicion that human activity may be causing it and support for some of the administration’s prescriptions to address these issues is considerable.

As even the president acknowledged in his speech, his attempt to get rid of coal-fired power plants and force car manufacturers to alter their plans will have economic consequences. But the disconnect here isn’t merely a matter of marketing and better communication, as the White House seems to think.

As I noted back in March, polls have consistently shown that while the American people may believe the climate is changing, they don’t consider this to be a priority when it comes to government action. Liberals tend to think the reason for this is that the public is not yet sufficiently alarmed by the prospect of global warming. But instead of attempting to make a reasonable case for changes that will send electricity and gas prices skyrocketing and the refusal to undertake projects, like the Keystone XL Pipeline, that would increase America’s available resources, they engage in scare tactics that, generally, backfire.

That’s because what the public wants is not so much mockery of skeptics or hysterical and wildly exaggerated predictions of a warming apocalypse but a measured analysis of the cost/benefit ratio of climate legislation. And that is exactly what is lacking in the president’s comedy routine. Even if the courts have given the president the power to enact far-reaching changes without benefit of congressional approval, that doesn’t translate into widespread approval for carbon regulations that will damage the economy and cause genuine economic hardship. Nor will that problem be solved be reports filled with alarmist predictions funded by wealthy activists like Tom Steyer and Michael Bloomberg that liberals cite to justify the suffering that will be imposed on the public. Though most Americans may think the climate is changing, they don’t think the apocalypse is at hand and aren’t interested in lowering their standard of living merely to gratify extremist ideology.

Merely branding his opponents as crazy won’t resolve this problem. Nor will the usual amorphous rhetoric about the power of green jobs that never seem to materialize and new technologies that will leapfrog over current difficulties that may take decades before they can take the place of fossil fuels, if, in fact, they ever do. In the meantime, they are left facing the prospect of Obama’s proposals creating economic havoc. As some Democrats in energy-producing states are learning, Obama may be getting laughs from coastal elites but his backing for environmentalist extremism may cost his party some Senate seats to the same Republicans he’s been mocking. While he may be thinking in terms of his 2008 boast about turning back the oceans, that seems a poor exchange for unpopular policies even if most Americans don’t agree with the skeptics.

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The President Versus the Constitution

Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

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Conflicts between the legislative and executive branches are as old as the republic. But in recent years, the growing power of the presidency has added new urgency to these issues. That’s the context of the decision of House Speaker John Boehner to sue the president for overstepping his authority. It’s also the backdrop to the interesting constitutional arguments in play in today’s U.S. Supreme Court decision on the president’s power to make recess appointments.

Democrats may have a point when they claim Boehner’s lawsuit is more of a stunt than a policy initiative. It is doubtful that the courts will force the president’s hand when it comes to bypassing Congress on immigration by selective enforcement of laws or by the use of executive orders when the House and the Senate fail to pass the legislation he wants. Even if the case does go forward, the odds are it will not be resolved until after President Obama leaves office in January 2017.

But Boehner is right to stand up for the Constitution and a system of checks and balances and against Obama’s notions of an imperial presidency that increasingly seem aimed at allowing him to govern alone without Congress.

Thus, the Supreme Court’s willingness in National Labor Relations Board v. Noel Canning to put some limits on the president’s power to make recess appointments is an encouraging sign that the march to one-person rule can be checked if not altogether halted.

As our John Steele Gordon noted earlier, the practice of allowing recess appointments, including those for vacancies that arise while Congress is in session, is not authorized by the Constitution but has become routine in the last century. While properly ruling that President Obama’s appointments to the National Labor Relations Board were illegal, the majority of the court sought to curb what it believes to be an excessive use of the practice. The decision held that congressional breaks of less than 10 days could not be interpreted as being sufficient to justify the president invoking his recess appointment power. That’s reasonable, but as Justice Antonin Scalia noted in his concurring opinion, by also saying that such appointments would be legal even if they came in the middle of an existing session, the court has read the law in such a way as to still leave the president far too much leeway to abuse the Constitution. The Constitution only authorizes the executive to make such an appointment when a vacancy comes up during an actual recess, not every such opening including ones that date back to times when Congress is in session.

As Scalia writes:

The notion that the Constitution empowers the President to make unilateral appointments every time the Senate takes a half-hour lunch break is so absurd as to be self-refuting. But that, in the majority’s view, is what the text authorizes.

Though he concurred with the majority that the NLRB appointments were illegal, Scalia rightly points out that such unilateral actions by the president could only be approved under extraordinary circumstances. But no such circumstances applied to this case or, for that matter, just about any other recess appointment made by any president in recent decades.

It should be remembered that the concept of recess appointments stems from the political realities of government in pre-20th century America. With a few exceptions during periods of national emergency, prior to the Great Depression Congress met for only a few months every year. Recesses then were not matters of a few days or weeks but several months. Even when a special session of Congress was called, travel in the horse-and-buggy era meant that it was simply impossible for the legislative branch to assemble quickly. Vacancies that arose during this period could, if forced to wait for the Senate to exercise its right to advise and consent to appointments, mean the government simply couldn’t function.

The old schedule in which a newly elected Congress would not meet until the December of the following year and new presidents not be inaugurated until the middle of March is consigned to the dustbin of history. But so, too, should the practice of allowing the president to simply use brief breaks in what is, for all intents and purposes, a nearly continuous congressional session to make appointments that the Senate has already effectively rejected.

Under the ruling in today’s case, so long as either congressional body is in the hands of the party not in control of the White House, recess appointments may be impossible since pro forma sessions will prevent the president from arguing, as Obama did, that the legislature really is not meeting. But, as John Steel Gordon points out, the president will still have a loophole that would allow him to effectively prorogue Congress like an 17th century English monarch.

All this points out the necessity for those who care about the Constitution—be they Republicans or Democrats—to stand up against a lawless presidency intent on one-person rule. Though Democrats may think they will hold the White House for the foreseeable future, they must consider that three years from now they may be faced with a Republican president. That president will, like all of his or her predecessors including Obama, probably suddenly find themselves in love with the idea of an imperial presidency that they disdained when someone of the other party was in power.

If this trend is allowed to continue unchecked and Obama’s predecessors are allowed to build on his precedent, then there is no telling how long the Constitution, as we know it, will survive. Presidents who enforce only the laws they like and use executive orders to make laws or make appointments the Congress has already rejected are little different from kings and queens.

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The Soda Ban and Helicopter-Mayoring

Today the Michael Bloomberg era in New York City drew to a close. Not officially, of course; Bill de Blasio’s mayoralty was inaugurated at the beginning of January. But today it can begin in earnest, and in modest acclamation: the soda ban is dead. And with it exits a style of governing that will most indelibly be remembered for perhaps its greatest flaw: an obnoxious paternalism that told even the city’s starving homeless precisely what they can and cannot consume.

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Today the Michael Bloomberg era in New York City drew to a close. Not officially, of course; Bill de Blasio’s mayoralty was inaugurated at the beginning of January. But today it can begin in earnest, and in modest acclamation: the soda ban is dead. And with it exits a style of governing that will most indelibly be remembered for perhaps its greatest flaw: an obnoxious paternalism that told even the city’s starving homeless precisely what they can and cannot consume.

New York State’s highest court today rejected the final appeal to keep the ban on large sodas in place. The New York Times headline on the story is “City Loses Final Appeal on Limiting Sales of Large Sodas,” but I think we’re all winners here, the city included. Bloomberg is to be commended for some of his policies: the full-throated defense of public safety chief among them. But Bloomberg got caught up in paternalistic social engineering and the soda ban was one of the most invasive–and illegal–results. The Times reports:

In a 20-page opinion, Judge Eugene F. Pigott Jr. of the State Court of Appeals wrote that the city’s Board of Health “exceeded the scope of its regulatory authority” in enacting the proposal, which was championed by former Mayor Michael R. Bloomberg.

The decision likely will be seen as a significant defeat for health advocates who have urged state and local governments to actively discourage the consumption of high-calorie beverages, saying the drinks are prime drivers of a nationwide epidemic of obesity.

Two lower courts had already sided against the city, saying it overreached in attempting to prohibit the purchase of sugared drinks in containers larger than 16 ounces, about the size of a medium coffee cup. By a 4 to 2 vote, the justices upheld the earlier rulings.

In that article, however, you can see who Bloomberg’s real constituents were: first and foremost, the media. Proponents of intrusive statist powers are, according to the Times, “health advocates.” Simply because they say so. Even though some of the schemes the “health advocates” have pursued have been shown to produce exactly the opposite result–that is, the population’s choices become less healthy. But as with most liberal projects, the intentions are all that matter. Who wouldn’t want to ban large sodas? Think of the children.

The irony of the Bloomberg administration’s overreach on sugary drinks is that such helicopter-mayoring overshadowed other policies and came to identify him. He’s been replaced by a much more liberal politician, who may actually restore some of Bloomberg’s reputation. Say what you will about Bloomberg’s nanny statism, but he did not acquire his inspiration for public service by watching the Marxist Sandinistas.

Bloomberg’s record on public safety threatens to be undone by de Blasio, whose election ended the era of hugely popular and undeniably successful police commissioner Ray Kelly, after which the police were instructed to stop gun violence by smiling at passersby. It’s too early to say if the resulting recent spike in violent crime is here to stay, but all indications are that de Blasio’s terrible ideas about public safety are just as irresponsible and unserious as they seemed when they began emanating from Planet Brooklyn during the campaign.

The biggest initial threat to de Blasio’s public approval was his staunch opposition to charter schools. De Blasio prefers to delegate his education policy to the unions, with the result that minority students have even fewer opportunities. De Blasio soon realized that trashing proven educational opportunities perhaps struck the wrong “tone.” (We can cut de Blasio some slack here though: it’s doubtful the Sandinistas had anything to say about charter schools, so the mayor was learning on the job.)

De Blasio represents a different kind of progressivism than Bloomberg’s version of city governance. For Bloomberg, that has advantages. Had he been followed by a more conservative mayor, his successor would have simply built on the better policies Bloomberg instituted while quietly scrapping the restrictions on fizzy bubblech. Instead, he’s being followed by an ideologue testing the limits the people will place on his airy radicalism, using New Yorkers as crash-test dummies.

That may leave New Yorkers pining for Bloomberg, but there’s a caveat: de Blasio has so far shown himself responsive to public opinion. If that ends up curtailing his leftist impulses, such populism will distinguish itself from the pompous elitism with which New Yorkers had in recent years been treated.

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Proroguing the Congress

The Supreme Court wimped out on the recess appointment power today.

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The Supreme Court wimped out on the recess appointment power today.

It ruled, unanimously, that President Obama had overstepped his powers when he made three recess appointments to the National Labor Relations Board while the Senate was holding pro-forma sessions. In other words, the Senate, not the president, gets to decide when it is in session.

I have not yet read the opinion, which is a long one, but five justices (the four liberal ones and Justice Kennedy), decided to sustain the long-standing practice of presidents making appointments during intra-session recesses (for holidays, etc.) not just inter-session recesses when the Senate has recessed sine die (Latin for “without a day,” i.e. without setting a date to resume). It also ruled that vacancies don’t need to occur during the recess to be filled by the recess appointment power. Again, this is long-standing practice, but it is not what the Constitution says.

The recess appointment clause (Article II, Section 2) says that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, …” and the D.C. Court of Appeals had ruled that it meant what it said: “the recess,” not “a recess,” and vacancies must occur during the recess, not simply exist during the recess. In today’s world, the recess of the Senate is very short. They rarely adjourn before the middle of December and the next session begins, under the 20th Amendment, on January 3. Had the Supreme Court followed that reasoning, and four justices led by Justice Scalia argued forcefully that it should have, the recess appointment power would have been, for all intents and purposes, dead.

Now the long-standing but unconstitutional practice has the imprimatur of the Supreme Court. All sorts of mischief can occur as a result. If the presidency and the two houses of Congress are in the hands of one party, there’s no problem. But if the Senate is in the hands of the other party, it can prevent recess appointments only by staying in pro-forma sessions. If the Senate is in the hands of the president’s party, but the House is not, as is the case presently, then the House can prevent a recess by simply staying in session itself. Neither house can adjourn for more than three days without the agreement of the other house (Article I, Section 5).

But there’s a little noticed clause in the Constitution (Article II, Section 3) that says, “… in Case of Disagreement between them [the two houses], with Respect to the Time of Adjournment, he [the president] may adjourn them to such Time as he shall think proper; …” As far as I know, this power has never been exercised. But here’s a scenario. Obama wants to appoint someone who would have trouble being approved by the Senate, so Harry Reid moves to adjourn the Senate for a week, the House refuses to go along, and the president then adjourns them for two weeks, and appoints his man.

The king of England lost his power to prorogue Parliament in the Glorious Revolution of 1688. The Supreme Court may well have given it back to the president of the United States.

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The GOP and America’s Changing Demographics

The Wall Street Journal reports on new data released earlier today by the Census Bureau. The bottom line is that the demographic divide between older white Americans and younger minorities grew wider last year, “highlighting a long-term shift that might alter the interplay between generations.”

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The Wall Street Journal reports on new data released earlier today by the Census Bureau. The bottom line is that the demographic divide between older white Americans and younger minorities grew wider last year, “highlighting a long-term shift that might alter the interplay between generations.”

Among the data points (most of which come courtesy of the Journal story):

  • In 2013, nearly 79 percent of people 65 and older were white, but for those younger than 15, the share of whites was just over half. In 2000, those proportions were nearly 84 percent and almost 61 percent, respectively.
  • Non-Hispanic whites made up 62.6 percent of the country last year, down from 63 percent in 2012, continuing their long-term decline as the dominant American group. More whites died than were born last year, while the share of both Asian-Americans and Hispanics grew.
  • Hispanic population growth was fueled by an increase in births, as the number immigrating continued to fall. Just over half of all babies born in the U.S. were white.
  • Whites account for less than half the population in four states: California, New Mexico, Texas, and Hawaii, plus the District of Columbia. But among children under age 5, whites are now below 50 percent in 15 states—with Alaska joining 14 others in 2013.
  • In some states, the generational gap was quite large. In Arizona, for example, 82 percent of people 65 and over were white, while just 41 percent of those under 15 were white, a 41-point gap.
  • National Journal‘s Ron Brownstein has pointed out that from 1996 to 2012, the white share of the eligible voting population has dropped about 2 percentage points every four years, from 79.2 percent to 71.1 percent; over that same period, whites have declined as a share of actual voters from 83 percent to 74 percent (according to census figures) or even 72 percent (according to the exit polls). ” With minorities expected to make up a majority of America’s 18 and younger population in this decade, all signs point toward a continued decline in the white share of the eligible voter population—which suggests the GOP would have to marshal heroic turnout efforts to avoid further decline in the white vote-share,” according to Brownstein. “If the electorate’s composition follows the trend over the past two decades, minorities would likely constitute 30 percent of the vote in 2016.”

In light of these facts and tends, Republicans and conservatives have two choices: They can bemoan what’s happening, since non-white voters are less reliably Republican and conservative, offering up a lament for a lost America. They can focus their energy at getting a larger and larger share of a shrinking demographic group. Or they can offer a conservative governing vision and governing agenda that’s principled, reform-minded, and forward-looking, and that appeals to groups that have not traditionally been supportive of them. This is a challenging task but hardly an impossible one.

America is changing–it’s always changing–and successful political parties change with it, showing new voters how the party’s vision can speak to their concerns. In the case of the GOP, this doesn’t mean it needs to parrot the Democratic Party, which is itself intellectually exhausted and increasingly reactionary. But political parties that win accommodate themselves to certain realities and find ways to succeed within them. At a minimum, it would help if Republicans not make non-white voters feel like they’re unwelcome, a grave and growing threat to the social order. But more is required than simply that. We need leaders who can explain why 21st-century conservatism will make their lives better when it comes to issues like jobs, education, health care, energy, immigration, and strengthening families. Who can position the GOP as the party of growth, opportunity, and social mobility. And who can make this case in a winsome and persuasive manner rather than an angry and hectoring one.

This is certainly something that should be within reach for the party of Lincoln and Reagan.

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