PowerLine -> Liberals Double Down on Dumb + Poll: GOP and Trump are no longer underwater

Powerline John Hinderaker at HoaxAndChange

PowerLine -> Liberals Double Down on Dumb + Poll: GOP and Trump are no longer underwater

Powerline image at HoaxAndChange

Powerline image at HoaxAndChange

Daily Digest

  • Adventures in administrative law
  • Poll: GOP and Trump are no longer underwater
  • Target: Happy Valentine’s Day To My “Person!”
  • Liberals Double Down on Dumb
  • La-la means I love you
Adventures in administrative law

Posted: 14 Feb 2018 12:46 PM PST

(Scott Johnson)I wrote about the problem of the administrative state in “A new old regime,” my review of Philip Hamburger’s audaciously great book Is Administrative Law Unlawful? (Plot spoiler: the answer is yes.) Even with a lot of help from my friends at the Claremont Institute, it took me a long time to understand the problem. Professor Hamburger expedited the process. The problem is the unconstitutionality, unwisdom, unaccountability, and lawlessness inherent in the administrative regime. For more resources on the problem of administrative law, see the links and videos in my post “Understanding the administrative state.”

The Consumer Financial Protection Bureau represents the reductio ad absurdum or ne plus ultra of the administrative regime. It is a constitutional monstrosity. Its funding is insulated from Congress. Its director is to wield virtually dictatorial powers to promulgate the law. The legal structure of the CFPP is designed precisely to insulate it from political accountability. It is a design better suited for a government of unlimited powers conducive to tyranny rather than to a government of limited powers conducive to freedom. One wonders if the Supreme Court will ever return to first principles or set some limits on how far the agencies can be removed from political accountability. That would be a beginning. The decisions of the Supreme Court beginning in the New Deal era and continuing to date require us to find our way to a new beginning.

PHH Corporation challenged the statutory provision establishing the CBPB Director’s one-man rule subject to the president limited removal power after Richard Cordray imposed a $103 million increase on a $6 million penalty imposed for violation of the Real Estate Settlement Practices Act. Framed by the constraints of precedent, the case raised a narrow constitutional issue. Can a single agency officer exercising the unilateral power of the CFPB Director be insulated from removal by the president pursuant to a statutory for-cause removal requirement? Other administrative agencies wielding power exercise it through bodies of commissioners or board members.

In the 2016 D.C. Circuit panel opinion, Judge Brett Kavanaugh observed that, prior to the CFPB, “no independent agency exercising substantial executive authority ha[d] ever been headed by a single person” (emphasis in original). The panel ruled in favor of PHH on all issues, constitutional and statutory, and sent the case back to the CFPB for further proceedings consistent with the opinion. Judge Randolph wrote a separate concurring opinion; Judge Henderson concurred in part and dissented in part (on the court’s reaching the constitutional issue). Housingwire posted a useful if slightly oversimplified summary. Judge Kavanaugh apologized for the length of his opinion for the panel, but it is worth a look to understand what is going on here.

President Obama and Harry Reid did not pack the D.C. Circuit for no good reason. They packed it to deal with cases like this one. The Obama administration sought to rehear of the case by the full court and rehearing was granted. Please note, however, that the Trump administration switched sides. The Trump administration filed an amicus brief resisting the CFPB in the case.

The full court reversed the panel’s holding on the unconstitutionality of the CFPB’s one-man rule in a 7-3 decision on January 31. The court’s opinions after rehearing run to 250 pages and are posted here. George Leef noted the result in his Forbes column on the case. No one who doesn’t have to read these opinions would want to do so.

Even after rehearing, however, PHH prevailed in wiping out the penalty assessed by Cordray. The en banc court left that part of the panel’s opinion undisturbed. As ACA News noted:

Although the D.C. Circuit Court upheld the CFPB’s structure, it more importantly tossed out a $109 million penalty that the CFPB had issued to PHH Corp. and returned the case to the CFPB for further proceedings based on the appellate court’s legal guidance. In doing so, the full circuit court left intact the panel’s holding that retroactive applyi[cation] of a new Real Estate Settlement Procedures Act interpretation violated PHH’s due process rights and the bureau is bound by statutes of limitation regardless of whether the CFPB is enforcing consumer financial laws through a civil action or administrative proceeding. Moving forward, if this holding survives a possible appeal in the U.S. Supreme Court by the White House or from PHH Corp., this decision will likely have major implications for government enforcement agencies and anyone that is targeted in an enforcement action.

I’m glad PHH prevailed in vacating the penalty assessed by Cordray on statutory grounds. To those of us on the outside looking in, however, the constitutional issue is more important than the statutory question. Moreover, the en banc court’s failure to disturb this element of the panel opinion complicates possible review of the constitutional question by the Supreme Court.

As Evan Weinberger observed in Law360’s article on the case (behind a subscription wall), “the picture of how this case moves forward [to the Supreme Court] is fuzzy at best.” Even if PHH can raise the issue in a petition for Supreme Court review, the procedural posture of the case (summarized here) makes it extremely unlikely that the Supreme Court would take the case at this point. My guess is that this is precisely what Judge Pillard and her colleagues in the en banc majority had in mind in resolving the case as they did.


Poll: GOP and Trump are no longer under water

Posted: 14 Feb 2018 10:25 AM PST

(Paul Mirengoff)There’s more good polling news for Republicans today — the best yet in this cycle. A Politico/Morning Consult poll finds that the GOP has pulled, in effect, level with the Dems in the generic congressional poll. 39 percent of registered voters say they would support the GOP candidate for Congress in their district, while 38 percent would back the Democratic candidate.

President Trump’s numbers have also improved dramatically, according to this poll. Voters divide evenly — 47 percent to 47 percent — on whether they approve of the job he’s doing as president. Until recently, Trump was way below water in most such polling.

Strange as it may seem, voters seem to care more about the economy and their tax bill than about Gen. Kelly’s staff work on Rob Porter and whether Trump said “s***hole.” Who knows? The day may come when the mainstream media calls Trump a “teflon president.”

If there’s a problem for Republicans, it probably lies in the intensity of anti-Trump feeling. In some high profile special elections, such sentiment has helped produce heavy pro-Democrat turnout, which has been decisive

Those who approve of Trump’s performance presumably fall into two groups: the Trump base and Republicans who don’t particularly like him but feel he’s doing a good job overall. The latter cohort isn’t enthusiastic. The former is enthusiastic about Trump but not necessarily about the GOP candidate[s] running in their district/state.

Nonetheless, for now, there’s good reason to doubt that the midterms will produce the “thumping” or “shellacking” of Republicans that Democrats were so confident of a couple of months ago.


Target: Happy Valentine’s Day To My “Person!”

Posted: 14 Feb 2018 09:47 AM PST

(John Hinderaker)My wife used to be a loyal Target shopper; in fact, she worked for Target quite a few years ago. Her loyalty has waned as the company has gotten ever more PC, but she still shops there occasionally. She took this picture of Valentine’s Day display in our local Target store:

“You Are My Person.” How romantic! Is Valentine’s Day really celebrated by a lot of people who aren’t sure whether the object of their affections is a man or a woman? Or, if the company wants to be gender-neutral, how about “You are my valentine?”

Then there is the creepily multicultural hand, which replaces the traditional heart. At least, I think it is supposed to be multicultural. Not sure what is going on there. If you wonder what the deal is with the folded-down fingers, as I did, my wife says it means “I love you” in sign language. I doubt that many people will realize this when they see the display.

Does Target seriously believe that its shoppers, most of whom are suburban moms, will be inspired by “You are my person”? Or are they past the point where selling products is their primary motivation? This strikes me as pure virtue-signaling. Or rather, not even virtue, but leftist conformism signaling. No doubt Justin Trudeau would approve, but I doubt that many Target shoppers are impressed.


Liberals Double Down on Dumb

Posted: 14 Feb 2018 08:19 AM PST

(Steven Hayward)Paul and I have already commented on the invincible ignorance of Sen. Brian Schatz’s comment that invoking “Anglo-American heritage” is racist, and it really does seem as though Sen. Schatz was jumping to someone’s talking points memo about what right-thinking people on the coasts should say about Attorney General Sessions. Because Schatz has company, such as this from the likely next governor of California:

Not to be left behind is Harvard law professor Lawrence Tribe:

There’s just one problem for Tribe. Here’s something he wrote in the Washington Post just last summer:

The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case.

Actually, just to be a bit pedantic, Dr. Bonham’s Case was rather more influential on this side of the Atlantic than in England (see the classic books by Bernard Bailyn, Edward Corwin, or James Stoner on this point*), where the ambiguities of Edward Coke’s jurisprudence were soon overwhelmed by the doctrine of parliamentary supremacy on matters of law. But that’s a matter for my classroom.

In any case, I think Attorney General Sessions should bring a peanut butter and jelly sandwich to his next public appearance. On white bread. (Better still: Wonder Bread!) Just to watch the left lose its mind again.

Ideological Origins of the American RevolutionThe Higher Law Background of the American Constitution; and Common Law & Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism.

P.S. Isn’t the name “Tribe” a cultural appropriation?


La-la means I love you

Posted: 14 Feb 2018 06:37 AM PST

(Scott Johnson)Written by William Hart and Thom Bell, produced by Thom Bell and Stan Watson, “La-La (Means I Love You)” is a classic of Philly soul, vintage 1968, and a memorable hit for the Delfonics. What a beautiful pop song. I don’t think they make ’em like this anymore. Hart sang the shimmering falsetto lead on the hit single.

Laura Nyro responded deeply to the song. As she did with so many of the “heartbeat songs” (as she called them) that she recorded over the years, she turned it into a personal statement. She teamed up with Manhattan Transfer on the song for the group’s Tonin’ album in 1994. It is, to say the least, not bad.

After working the song up with Manhattan Transfer, Laura recorded a version that she produced on August 29, 1994. The credits note that she backed herself on electric piano with Jeff Pevar and John Tropea on guitar, Will Lee on bass, Chris Parker on drums, and Carol Steele on percussion. Laura died way too young of ovarian cancer in 1997. The song appeared posthumously on Angel in the Dark in 2001; this is how she wanted the song to be heard.

There are too many great love songs to pick an official Valentine’s Day song. If I ruled the world, however, this would be it — this would be it this morning, anyway.

So why does “la-la” mean I love you? I take it that if you stutter, or if you’re a little nervous about the declaration of that important sentiment, that might be the way it would come out.


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