Biden’s moment

The postulate that nature abhors a vacuum in politics seems to apply in politics as elsewhere. There is a vacuum in the Democratic field of candidates for president. Like Gene McCarthy in 1968, Bernie Sanders is in the process of demonstrating the existence of the vacuum. Again, like McCarthy in 1968, there his utility ends. Sanders would not be a viable Democratic candidate for president.

The vacuum is the space for a plausible alternative to Madam Hillary. Such a candidate would have to be liberal and able to recite the regnant shibboleths with convictions, of course, but he would also have to be likable and honest in his own way in order to distinguish himself from Madam Hillary. This candidate would instantly slow and have a good chance of interrupting the Clinton death march to the Democratic nomination, which seems to be enacting a variant of what Leo Strauss called the joyless quest for joy. In this case it is the joyless quest for power.

Will Joe Biden fill the space created by Hillary’s candidacy? That is the question that Ed Rogers asks online at the Washington Post. He observes:

In a lot of ways, Biden would be the true anti-Hillary. He is completely uninhibited, he is impossible to script — which makes him seem authentic — and he has a human appeal that everyone can relate to. Clinton, on the other hand, is running a surreal campaign that avoids crowds, media and spontaneity of any kind. She is protecting her lead in the most standard, unimaginative way possible. Compared with Clinton’s robotic, stiff approach, could having a reputation for occasionally saying the wrong thing and hugging too much work to Biden’s advantage in an era where voters want the real thing?

S.A. Miller reports at the Washington Times that “Biden’s team is putting out the word that he is leaning in favor of joining the presidential race next month, according to a prominent Democratic fundraiser.” Miller quotes Jon Cooper, described as a top bundler for Obama’s 2012 campaign who has been testing the waters with fellow bundlers for a Biden run: “They have given increasingly strong signals that Biden is going to throw his hat in the ring[.]” Miller adds this quote from Cooper: “I’m as confident as I can be that he will be entering the race,” he said.

Biden, let it be noted, is 72. Barack Obama having interrupted or ended the careers of so many younger Democratic officeholders, Biden fits the geriatric profile of the plausible alternatives to Madam Hillary. We know he is possessed by the ambition to be president. He would be a fool not to challenge Madam Hillary. My thought is that we know he’s not the brightest bulb in the room, but he’s no fool.

Miller’s Washington Times story is accessible here. Warning: Do not click on the link if you are not prepared for the assault that accessing the Times site invites. Jennifer Rubin offers some helpful thoughts in favor of a Biden candidacy here.

Goodnight Vienna (2)

As we continue the dance of death in Vienna to the new deadline of July 7, Omri Ceren (on Twitter @ceronomri) writes in two emails combined below regarding news of the latest evidence of Iran’s cheating under the current JPOA of November 2013. Omni writes:

Remember how we got here. The interim deal was supposed to “freeze” Iran’s nuclear program, but the Iranians demanded to keep enriching uranium gas, so the Americans came up with a technical quick-fix: yes, the Iranians would get to keep enriching gas, but they would commit to turning all newly enriched gas into an oxide powder temporarily unsuitable for further enrichment. They would have to meet that obligation at the end of every sic-month interim deal period.

When the JPOA was extended last summer Secretary of State Kerry was clear about the commitment: “Iran has committed to take further nuclear-related steps… includ[ing] a continued cap on the amount of 5 percent enriched uranium hexafluoride and a commitment to convert any material over that amount into oxide.”

By last month it had become mathematically impossible for the Iranians to meet their oxidation requirement by the June 30 deadline. The Obama administration responded by aggressively gaslighting reporters and lawmakers: it told them to ignore the math and that administration scientists were confident that the Iranians would meet the deadline. Yesterday the IAEA confirmed that – of course – the Iranians missed the deadline. So the administration responded by declaring that… the violation didn’t count, and that it was OK with the noncompliance.

You can expect Congressional lawmakers, think tankers, and journalists to make the obvious point: the Obama administration is so desperate to preserve negotiations with Iran that they’re already spinning away Iranian cheating. They’re doing so even before a final deal has been inked, when they can still walk away. Once they go all-in on a final deal, the incentive will only rise.

Yesterday the Institute for Science and International Security (ISIS) published a one-pager on exactly this. The full version is pasted below, and describes what the Iranians probably did instead of meeting their obligation (they probably left the uranium in an intermediary, more-easily-reversible form between gas and the oxide they were supposed to produce). But the final two paragraphs are about what it means for a final deal that the U.S. is already ignoring Iranian violations:

When it became clear that Iran could not meet its commitment to convert the LEU into uranium dioxide, the United States revised its criteria for Iran meeting its obligations… The choosing of a weaker condition that must be met is not a good precedent for interpreting more important provisions in a final deal. This case poses several other potential problems about the enforcement of a final deal with Iran. The United States accepted an unproven technical method for converting the LEU. Is it doing so now in a final deal? Are the technical methods in the final deal reliable?… The U.S. government handling of the case of the newly produced LEU under the JPA leads to legitimate doubts about how well that major endeavor will go.

The kicker at the bottom of this Reuters article is sort of striking: “The IAEA did not have an immediate response to a query about its report.” There’s simply not much to say The IAEA confirmed that the Iranians are in violation of a black-letter requirement in the interim JPOA deal to transform their enriched gas into oxide. The administration is declaring that the cheating doesn’t matter.

This controversy is playing out as if it were intentionally scripted to delegitimize the administration’s credibility on enforcing a deal with Iran:

– analysts warned the Obama administration that Iran was cheating;
– the administration responded by publicly attacking the analysts and defending the Iranians, and for good measure declared on the basis of secret analysis that the Iranians would not cheat;
– the Iranians went ahead and cheated; and
– the administration declared that the cheating was OK.

There’s a more subtle level to this story, which is that the Obama administration is trying to play games with legal distinctions between IAEA assessments and P5+1 compliance. But the debate is unlikely to reach that level because the surface scandal – that the Iranians violated the JPOA and the White House worked to spin the cheating away – is so blatant.

Philip Hamburger: Chevron’s last days?

IsAdLawUnlawful Philip Hamburger is the Maurice and Hilda Friedman Professor of Law and the author, most recently, of Is Administrative Law Unlawful? (Editor’s note: Answer: Yes.) It is easily one of the most important books published in 2014 and certainly one of the most important I have ever read.

Professor Hamburger has graciously taken time out from his vacation to comment at our request on the Supreme Court’s earlier this week in Michigan v. EPA. Professor Hamburger writes:

Whatever you think of the Supreme Court’s recent decisions, the really seismic constitutional development that is rumbling underneath them is not Obamacare, marriage, or the environment, but a reconsideration of Chevron. What is Chevron? And why does it matter?

Chevron U.S.A. Inc. v. Natural Resources Defense Council was a 1984 Supreme Court case that greatly expanded the power of administrative agencies. For three decades, it has required judges, where a statute is ambiguous, to put aside their own judgment of what the statute means and, instead, defer to any reasonable interpretation by an administrative agency that administers the statute. This has been a cornerstone of administrative power, for it allows agencies to legislate under the guise of interpretation. No wonder that so much administrative power these days comes in the form of “interpretation”! And no wonder that administrative power has expanded far beyond any specific congressional intent!

This week’s writing on the wall — or at least what one can read between the lines — does not bode well for Chevron deference. When the Supreme Court upheld the IRS’s interpretation of Obamacare in King v. Burwell, it did not rely on Chevron. The government asked the Court to apply Chevron deference, but the Court exercised its own judgment about what the statute meant, and this already was interesting, for it suggested that the Court was unwilling to uphold so significant an agency interpretation under Chevron. Four days later, when the Court rejected the EPA’s interpretation of the Clean Air Act in Michigan v. EPA, it relied on Chevron, but only to reject the agency interpretation.

Topping it off was Justice Thomas’s concurrence. Justice Thomas has repeatedly distinguished himself by speaking honestly about the deep constitutional problems that face the Supreme Court, and his concurrence observed that the EPA’s “request for deference raises serious questions about the constitutionality of our broader practice of deferring to agency interpretations of federal statutes.”

Thomas notes that, under Chevron, agencies could be viewed as lawmakers or as authoritative interpreters, and “[e]ither way, Chevron deference raises serious separation-of-powers questions.” The Constitution vests its legislative powers in Congress and the judicial power in the courts, consisting of judges. And this has consequences. On the one hand, if Chevron allows authoritative agency interpretation, it takes from the judges their constitutional duty to exercise independent judgment, including their duty to interpret — what Chief Justice John Marshall in Marbury v. Madison called the “duty . . . to say what the law is.” On the other hand, if Chevron allows agency lawmaking, it collides with Congress’s legislative power, for it gives the force of law to “agency pronouncements on matters of private conduct as to which Congress did not actually have an intent.”

Thomas concludes that “we seem to be straying further and further from the Constitution without so much as pausing to ask why. We should stop to consider that document before blithely giving the force of law to any other agency ‘interpretations’ of federal statutes.”

Indeed, what really is at stake here is not simply the Constitution, but the very legitimacy of the federal judiciary. Whatever their failings in departing from the Constitution, federal judges generally enjoy the reputation of being unbiased. But what if, in fact, they are systematically biased in favor of the government? Of course, this is not to say they are personally biased, but Chevron forces them to engage in institutional bias. This is the allegation of my essay “Chevron Bias.” It points out that in their Chevron deference, the judges have abandoned their duty of independent judgment. It adds that where the government is a party to a case (as in Michigan v. EPA), Chevron requires the judges to favor one of the parties — the most powerful of parties. This is systematic prejudice, and it delegitimizes the entire judiciary.

This is why Chevron is in play. Many judges, on the Supreme Court and below, are becoming deeply concerned about Chevron, lest it require them to give up their independent judgment and even become systematically biased.

For more about these problems, read my “Chevron Bias” essay by clicking here (and then hitting the download button). Administrative power is utterly corrupting, and because Chevron has institutionally corrupted the judiciary, at least some of the justices are beginning to have buyer’s remorse.

The Candidates and Their Reading Lists

Forget Jeb’s and Hillary’s tax returns. We get it: they both make a lot of money from speeches and such.

More interesting is what they read, or claim to read. Last year The Atlantic put together a list of Jeb’s and Hillary’s current book list. In one sense it doesn’t much matter whether they actually read the books they list; more revealing is what they chose to disclose.

Here’s Hillary’s list:

  • The Goldfinch, Donna Tartt
  • Mom & Me & Mom, Maya Angelou
  • Missing You, Harlan Coben
  • The Hare With Amber Eyes, Edmund de Waal
  • The Signature of All Things, Elizabeth Gilbert
  • Citizens of London, Lynne Olson
  • A Suitable Boy, Vikram Seth
  • Decision Points, George W. Bush
  • Faith of My Fathers, John McCain

We’ve commented before on the calculated pretentiousness of Hillary’s reading lists, especially when compared to her sub-pedestrian review of Henry Kissinger’s latest book, whose jejunosity is beyond the satiric imagination of Woody Allen. I find it doubtful that Hillary actually read President Bush’s memoir, or McCain’s. These appear to be attempts to give her the veneer of bipartisanship.

Here’s Jeb’s list:

  • Polk, Walter R. Borneman
  • The World America Made, Robert Kagan
  • Knowledge and Power, George Gilder
  • Their Eyes Were Watching God, Zora Neale Hurston
  • Abraham Lincoln, Lord Charnwood
  • The Rule of Nobody, Philip K. Howard
  • The Future and Its Enemies, Virginia Postrel
  • The Tragedy of American Compassion, Marvin Olasky
  • A Message to Garcia, Elbert Hubbard
  • The Smartest Kids in the World, Amanda Ripley
  • The Magnificent Masters, Gil Capps
  • Killing Jesus, Bill O’Reilly and Martin Dugard

This is an interesting list that speaks well of Bush, for several reasons. I still argue that Charnwood’s Lincoln is the best Lincoln biography ever written. Some time I must do a whole separate post on why. Some of these books are a little dated, though still worth reading, especially if Bush missed them when they came out, such as Virginia Postrel’s The Future and Its Enemies, and Olasky’s Tragedy of American Compassion. A Message to Garcia? Well I have to have a soft spot for that old classic, since I have Elbert Hubbard’s portrait personally inscribed to my grandfather hanging on the wall in my library. The current Kagan and Howard books speak boldly to current public policy problems towards which Hillary is either oblivious or part of the problem. The only clear clunker on Bush’s list is Bill O’Reilly’s latest potboiler. Probably this is just Fox viewer bait.

I’d like to see similar book lists from all the candidates. If not, I may suggest a parody list for each, starting with Trump.

Green Weenie of the Month: The CBD

Finally got a shipment of fresh, fully-glutenated, animal-tested Green Weenie Awards from our Chinese manufacturer, and we’re behind on our award roster. But thanks to a tip from WattsUpWithThat, we have a clear winner already: The Center for Biological Diversity. They’re the folks who essentially run our endangered species policy. More on all that some other time. For now, they win our coveted Green Weenie Award for this press release issued yesterday:

Legal Petition Urges EPA to Save Sea Life, Regulate CO2 as Toxic Substance

WASHINGTON— With the world’s oceans and sea life facing an unprecedented crisis from ocean acidification, the Center for Biological Diversity and former Environmental Protection Agency scientist Dr. Donn Viviani today formally petitioned the Obama administration to regulate carbon dioxide under the federal Toxic Substances Control Act. The first-of-its-kind petition under the toxics act seeks widespread reduction of CO2 because it contributes to ocean acidification, driving the destruction of coral reefs and threatening nearly every form of sea life, from tiny plankton to fish, whales and sea otters. . .

The petition seeks to regulate CO2 as a chemical substance under the Toxic Substances Control Act, which has been used in the past to regulate harmful chemicals such as PCBs and asbestos. The law requires the EPA to regulate chemicals that present an unreasonable risk to the environment and conduct testing for harmful effects of chemicals that are produced in large quantities. The novel approach of using the Act to regulate CO2 could complement other efforts to reduce the CO2 emissions that are contributing to ocean acidification.

So let’s see: we’re going to classify something each of us exhales (to the tune of about 800 lbs a year) as a “toxic substance” akin to PCBs and asbestos? Got it.

Look CBD kids, if you’re going to try satire, you might as well go with something more plausible like this:

Scientists Trace Heat Wave To Massive Star At Center Of Solar System

PASADENA, CA—Groundbreaking new findings announced Monday suggest the record-setting heat wave plaguing much of the United States may be due to radiation emitted from an enormous star located in the center of the solar system.

Scientists believe the star, which they have named G2V65, may in fact be the same bright yellow orb seen arcing over the sky day after day, and given its extreme heat and proximity to Earth, it is likely not only to have caused the heat wave, but to be responsible for every warm day in human history.

“Our measurements indicate the massive amount of energy this thing gives off is able to travel 93 million miles and reach our planet in as little as eight and a half minutes,” said Professor Mitch Kivens, an astronomer at the California Institute of Technology. “While we can’t see them, we’re fairly certain these infrared rays strike Earth’s surface, become trapped by the atmosphere, and just heat everything up like a great big oven.”

“We originally thought that if this star was producing temperatures of 100-plus in the South and Midwest, it must be at least 100 degrees itself,” Kivens added. “But it turns out it’s far, far hotter than that, with a surface temperature of nearly 10,900 degrees Fahrenheit.”

Kivens and his CalTech colleagues said this intense radiation, which results from constant nuclear reactions converting hydrogen to helium in the star’s core, could also account for why the orb in the sky is extremely bright and difficult to stare at directly.

Of course this is from The Onion. The real question is why the CBD petition doesn’t appear there too.

The Road Ahead for Believers: Not So Gay

I’ll have a lot more to say in here and in several other venues about the status of religious liberty and religious faith in post-modern and post-Obergefell America.  But for now it is worth recalling the observations of Richard John Neuhaus, from his important 1984 book The Naked Public Square:

When the democratically affirmed institutions that generate and transmit values are excluded, the vacuum will be filled by the agent left in control of the public square, the state. In this manner, a perverse notion of the disestablishment of religion leads to the establishment of the state as church…

Our problems, then, stem in large part from the philosophical and legal effort to isolate and exclude the religious dimension of culture…only the state can…”lay claim to compulsive authority.”…of all the institutions in societies, only religion can invoke against the state a transcendent authority and have its invocation seconded by “the people” to whom a democratic state is presumably accountable. For the state to be secured from such challenge, religion must be redefined as a private, emphatically not public, phenomenon. In addition, because truly value-less existence is impossible for persons or societies, the state must displace religion as the generator and bearer of values…

[T]he notion of the secular state can become the prelude to totalitarianism. That is, once religion is reduced to nothing more than privatized conscience, the public square has only two actors in it – the state and the individual. Religion as a mediating structure…is no longer available as a countervailing force to the ambitions of the state…

If law and polity are divorced from moral judgment…all things are permitted and…all things will be done…When in our public life no legal prohibition can be articulated with the force of transcendent authority, then there are no rules rooted in ultimacies that can protect the poor, the powerless and the marginal…

Politics is an inescapably moral enterprise. Those who participate in it are…moral actors. The word “moral” here…means only that the questions engaged [in politics] are questions that have to do with what is right or wrong, good or evil. Whatever moral dignity politics may possess depends upon its being a process of contention and compromise among moral actors, not simply a process of accommodation among individuals in pursuit of their interests. The conflict in American public life today, then, is not a conflict between morality and secularism. It is a conflict of moralities in which one moral system calls itself secular and insists that the other do likewise as the price of admission to the public arena. That insistence is in fact a demand that the other side capitulate…

The founding fathers of the American experiment declared certain truths to be self-evident and moved on from that premise. It is a measure of our decline into what may be the new dark ages that today we are compelled to produce evidence for the self-evident…”

Unabomber or Unapapa?

Anyone remember the good old days when you couldn’t tell the difference between the Unabomber’s manifesto “Industrial Society and Its Future” and Al Gore’s Earth in the Balance? There was even an online quiz you could flunk. (Though to remind everyone once again, both owed more to Heidegger.)

Well, it’s time to rerun that drill with Pope Francis’s encyclical on the environment. Which is exactly what Colby Cosh does in Canada’s National Post:

Non-Catholics responded positively to the Pope’s tweetstorm because he seemed to be taking a firm position on climate change, and the letter certainly does that. But the head of the Catholic religion turns out to be no more capable of expressing himself compactly on one important issue than is the typical adherent of the Environmentalist religion.

The climate is a “common good,” says the Pope, and there is “a very solid scientific consensus” that it is changing in “disturbing” ways. Hooray for Science Pope! But before you know it he is weighing in on drinking water. “…in some places there is a growing tendency, despite its scarcity, to privatize this resource, turning it into a commodity subject to the laws of the market.” It turns out this is bad, even though almost any economist alive would instantly apply a red pencil and several question marks to that “despite.” . . .

“The idea of promoting a different cultural paradigm and employing technology as a mere instrument is nowadays inconceivable. The technological paradigm has become so dominant that it would be difficult to do without its resources and even more difficult to utilize them without being dominated by their internal logic. It has become countercultural to choose a lifestyle whose goals are even partly independent of technology, of its costs and its power to globalize and make us all the same.”

Pure Kaczynski, yeah? The next sentence could easily be “So that’s why I moved to a cabin in the woods and started mailing bombs to scientists.” Let me give you another: Unabomber or Unapapa?

“The system does not and cannot exist to satisfy human needs. Instead, it is human behaviour that has to be modified to fit the needs of the system. This has nothing to do with the political or social ideology that may pretend to guide the technological system. It is the fault of technology, because the system is guided not by ideology but by technical necessity. Of course the system does satisfy many human needs, but generally speaking it does this only to the extent that it is to the advantage of the system to do it. It is the needs of the system that are paramount, not those of the human being.”

That one’s Ted — or have I switched them? No, despite the stylistic similarities, the parallel quotes, which could be multiplied greatly, does reveal a weakness in my insolent comparison. The Pope is an optimist, and thinks technology can be tamed if human hearts turn to Christ in time. Kaczynski thinks the problems involved in technological progress are inherent. He specifically argues that they cannot be solved by religion, real or contrived.