Wednesday roundup

David French has moved from National Review to The Dispatch, the new project of Steven Hayes and Jonah Goldberg. Among the things he'll be doing there is a regular newsletter. In today's edition of that, he looks at how the Supreme Court may well dismantle Elizabeth Warren's signature achievement, the Consumer Financial Protection Bureau:

For years I’ve been telling anyone who will listen that Warren’s political biography is littered with landmines. Yes, she’s known for inflating claims of Native American heritage, but did you also know that she (strangely enough) claimed to be the “first nursing mother to take a bar exam in the state of New Jersey”? A Boston Herald writer spoke to a New Jersey Judiciary official who said there was no way to verify her claim. Women had been taking the New Jersey bar since 1895, and the official was “not aware their nursing habits were ever tracked.”

But her academic career isn’t even quite as glittering as you might think. In 2010, Megan McArdle wrote a fascinating analysis of Warren’s scholarship and found a “persistent tendency to choose odd metrics” that inflated the case for her leftist causes. McArdle said Warren’s famous scholarship on medical bankruptcies “isn't Harvard caliber material—not even Harvard undergraduate.” McArdle is hardly the only serious critic of Warren’s academic work, and the theme of the criticism is much the same—that she had a history of “overstating her findings to make ideological points.”

Now, I know that these critiques can feel like nit-picking when she’s running to take on a Republican president who is one of the most extraordinary (and ignorant) fabulists in the history of American politics, but sloppiness in her biography and sloppiness in her scholarship extend to sloppiness in her public policy positions, and this cuts directly against the core of her political image—as the person who has the “plan for everything.” What if her plans are illegal or unconstitutional? What if the veneer of wonkiness is hiding the unworkable substance?

And this brings us to the Supreme Court. Earlier this month SCOTUS granted certiorari in a case called Seila Law LLC v. Consumer Financial Protection Bureau. The court will decide two issues:

(1) Whether the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violates the separation of powers; and (2) whether, if the Consumer Financial Protection Bureau is found unconstitutional on the basis of the separation of powers, 12 U.S.C. §5491(c)(3) [it] can be severed from the Dodd-Frank Act.

Let’s put this in plain English. The CFPB is quite fairly described as Warren’s signature public policy achievement. She proposed, she built it, and she initially hoped to run it. Now the nation’s highest court is set to decide whether it’s structurally unconstitutional. The governing statute places substantial restrictions on the president’s ability to remove the CFPB director, and the smart money is betting that the Supreme Court will rule against the bureau.

SCOTUSblog’s Amy Howe describes the stakes:

If the justices agree that the restrictions violate the doctrine known as the separation of powers – the idea that the Constitution divides the different functions of government among the executive, judicial and legislative branches – their ruling could potentially unravel all the CFPB’s decisions in the nine years since its creation.

And what is the precise constitutional problem? Here’s a nice summary from a CATO Institute amicus brief:

The Consumer Financial Protection Bureau is the most independent of independent agencies in the federal government. Despite its significant power, it is essentially accountable to no one. A single director heads the CFPB, this director serves a five-year term, and the director can be removed only for cause. The CFPB does not need Congress to approve its budgets because its funding requests must be rubber-stamped by another independent agency—the Federal Reserve. The CFPB has regulatory authority over 19 federal consumer protection laws, for which it is empowered to write regulations, investigate potential violations, and bring enforcement actions in its own administrative proceedings. This concentration of power in the hands of a single, unelected, unaccountable official is unprecedented and cannot be squared with the Constitution’s structure or its purpose of protecting individual liberty from government overreach.

In other words, the Obama administration created in essence a fourth branch of government. The CFPB exists almost outside our constitutional system of checks and balances. It’s an executive agency not truly run by the president. It’s a statutory creation not truly funded by Congress. 

It is true that the Ninth Circuit and the D.C. Circuit have upheld the CFPB’s structure, but there is one very notable dissenter from the D.C. Circuit’s en banc opinion—then-Judge (now Justice) Brett Kavanaugh. This was his assessment of the CFPB director in January, 2018:

Because the Director acts alone and without Presidential supervision or direction, and because the CFPB wields broad authority over the U.S. economy, the Director enjoys significantly more unilateral power than any single member of any other independent agency. By “unilateral power,” I mean power that is not checked by the President or by other commissioners or board members. Indeed, other than the President, the Director of the CFPB is the single most powerful official in the entire U.S. Government, at least when measured in terms of unilateral power.

There is no such thing as a foregone conclusion at the Supreme Court, but given the number of justices who’ve signaled a willingness to rein in the administrative state, Warren’s political creation is likely in for a rough ride. 

To uphold the structure of the agency, the court would have to extend the present understanding of the ability of Congress to create independent bureaucracies— and that’s exactly the opposite way that the Supreme Court has been trending. So, look for the court to rebuke Warren in the middle of a presidential campaign. 

It would be one thing if the CFPB was simply one constitutional swing and miss, but Warren has a habit of making policy proposals that cross legal lines. 

Can she keep her promise to “ban fracking everywhere”? No, she cannot. Her plan plainly conflicts with the Energy Policy Act, passed by Congress in 2005. 

Can she pass a wealth tax and raise hundreds of billions of dollars to pay for an explosion of progressive policies? No, she cannot. Her tax likely violates the 16th Amendment, which holds that any “direct tax” must be “in Proportion to the Census or Enumeration.”

She wants to create a national statutory right to abortion that overrides restrictive state laws. But once again she has proposed a plan that contradicts relevant Supreme Court authority limiting congressional authority under the commerce clause. 

Elizabeth Warren makes promises she can’t lawfully keep, and when those flawed promises become unconstitutional laws, they impose real economic and legal costs on American citizens. 

Great piece by Noah Rothman at Commentary entitled "The Blue State Model Is Failing." How have big, resource-rich states like California  and New York gotten to the point of deliberate blackouts?

Satan is on the prowl in Austin. Fortunately, a significant number of parents aren't taking it lying down:

On Tuesday morning, the Austin Independent School District (ISD) school board approved a radical new sex-education curriculum for grades 3-8 that encourages all kinds of sex at young ages, urges kids to join LGBT "pride" parades, and aims to redefine biological sex and erase the words "mom" and "dad" from children's vocabulary.

More than 100 people testified against the new curriculum on Monday night, and testimony lasted until after midnight. Yet the school board unanimously approved the new curriculum.

"This vote by the Austin ISD Board sends a clear message: people of faith and traditional moral values are not welcome in Austin ISD," David Walls, vice president of Texas Values and a parent in Austin ISD, said in a statement. "By passing this curriculum, Austin ISD has broken the sacred trust that parents put in their children’s schools. Austin ISD parents have no reason to entrust their children to a school district that weaponizes education to indoctrinate children into the LGBT political movement."

Do the right thing, Philippines:

An Iranian beauty queen who has spent almost two weeks inside Manila's international airport says she will be killed if she is sent back home and is seeking asylum in the Philippines.

Bahareh Zare Bahari, a contestant in the recent Miss Intercontinental pageant in Manila, claims Tehran is attempting to silence her because of her public stand against the government.

In a press release last week, the Philippines Immigration Department said the international police agency Interpol issued a worldwide request to arrest Bahari, known as a red notice. The statement did not specify which country requested the red notice, but Bahari told CNN that an immigration official told her Iran requested one in 2018. 

"I have been living here since 2014 and I've not gone back to Iran. I explained to them many times, how can I have a criminal case in Iran when I've been living here?" she told CNN by phone.

Bahari said she has been confined to a passenger room in Terminal 3 of Manila's Ninoy Aquino International Airport since she arrived from Dubai 12 days ago. "I'm really mentally sick," she said, adding that the uncertainty over her case is wearing her down. 

Bahari believes she is being targeted for supporting the exiled Reza Pahlavi, the son of the Shah of Iran overthrown in the country's 1979 revolution. 

The beauty queen blamed the situation on Iranian authorities, saying it came up because she used an image of Pahlavi and the flag of the former Iranian monarchy as props during a recent competition. Bahari said she made the statement "to try and be the voice of my people."

She also believes she may be targeted because of her social activism in Iran. Bahari said that she became a teacher there because she wanted girls to learn "they are not things, they are not toys, they are human and they have same right as boys."

The Philippines Department of Immigration and Department of Justice have not responded to CNN's request for comment. Requests for comment made to the Iranian embassy in Manila and the Iranian government in Tehran have not been answered. 

AOC is a walking caricature of her own worldview:

On Wednesday, far-left Rep. Alexandria Ocasio-Cortez (D-NY) linked the death of her grandfather to white people.

According to the socialist’s logic, “predominantly white” corporations and communities have set climate change in motion with their fossil fuel admissions; climate change apparently caused and/or amped up Hurricane Maria, a devastating Puerto Rico storm in 2017; AOC’s grandfather died in the aftermath of the storm, ergo: white people are connected to, if not the cause of, his death.

“[T]he people that are producing climate change, the folks that are responsible for the largest amount of emissions, or communities, or corporations, they tend to be predominantly white, correct?” the 29-year-old asked during a House Oversight and Government Reform subcommittee hearing on civil rights and civil liberties, according to The Washington Examiner.

“Yes, and every study backs that up I know no one is intentionally trying to kill people and hurt people,” National Wildlife Federation’s Mustafa Ali answered the NYC rep. 

“My own grandfather died in the aftermath of Hurricane Maria,” Ocasio-Cortez highlighted.

“We can’t act as though the inertia and history of colonization doesn’t play a role in this,” she added. 

At The Imaginative Conservative, Louis Markos imagines how Dante might have corresponded with us in the twenty-first century about the Beatific Vision.