RUTHFULLY YOURS

The president once noted that slavery’s legacy was a part of America’s DNA. The genius of his grievance is that it’s inextinguishable, as in no possibility of reconciliation and definitive settlement. ‘White privilege’ is forever—or, at any rate, as long as a social-justice warrior finds it useful.
Barack Obama, during the 2008 presidential campaign, was presented to the people of the United States—and, more broadly, to the people of the world—as the candidate best suited to play the role of unifier. President George W. Bush had been the Great Divider but now the time had come for everyone to put those discordant days behind us and embrace the one we had been waiting for, and so begin an era of repair and restoration. A sizeable proportion of Americans continue to approve of President Obama—close to 50 per cent in some polls—and yet the blistering populist campaigns pursued by Bernie Sanders and Donald Trump (and, in a sense, Ted Cruz) throughout the current presidential campaign season suggest that his time in office has increased discord in the country.

Barack Obama positioning himself as the Healer-in-Chief was always a problematic notion. Edward Klein’s The Amateur (2012) is vitriolic in tone and underestimates Obama’s political savvy, and yet his rationalisation of Obama’s original popular appeal—masterminded by political consultant David Axelrod—remains relevant:

[Axelrod] performed a brilliant piece of political legerdemain … He devised a narrative for Obama in which the candidate was presented as a black man who would heal America, not divide it, a moderate non-partisan who would rescue America, not threaten it.

Candidate Obama, the politician with the most radical voting record in the US Senate, could be trusted by mainstream America to bring the nation together.

President Obama has failed as national peacemaker because he is not a “centrist” or mediator. The provenance of his systematic worldview can be found in the thinkers of the New Left, from Frank Marshall Davis and Edward Said to Jeremiah Wright. The Reverend Wright’s “God damn America!” outburst encapsulates the New Left’s aversion to the fundamentals of America’s capitalist democracy. America is not to be healed so much as reconfigured. The great ideological fissure in the United States, then, is between their so-called libertarian-socialism—the “spirit of 1968” as Dinesh D’Souza has tagged it—and a revolution with far deeper roots: the “spirit of 1776”.

Edward Klein’s insight is only one explanation for why so many Americans failed to grasp the sharp nature of Barack Obama’s ideology. Not the least of these is that the forty-fourth president long ago took a leaf out of Saul Alinsky’s Rules for Radicals (1971). President Obama, in short, eschews the pitfalls of the “rhetorical radical”. He avoids the undisguised anger and belligerence common to many activists and, in its place, adopts the public persona of what Alinsky called the “radical realist”. This could be summed up in four words: Don’t frighten the horses. Thus, Barack Obama typically expresses himself with the poise and equanimity of a venerable conciliator, and yet a more contentious outlook is invariably at work.

We could start with the Dallas shootings. On July 7, 2016, Michael Xavier Johnson ambushed and shot police officers, murdering five and injuring nine others. The police officers were on duty to ensure the security at a Black Lives Matter (BLM) demonstration in the city. Dallas Police Chief David Brown disclosed that Johnson—killed near the scene of his crime—had been a follower of the BLM movement and had “stated he wanted to kill white people, especially white officers”. The chief organiser of this particular BLM protest, the Reverend Jeff Hood, did acknowledge that, with the benefit of hindsight, he might have chosen a different rallying call from “God damn White America!” to lead off the day’s march. Nevertheless, the BLM leadership team, not surprisingly, disavowed any culpability for the assassination of the police officers. Not even Quanell X’s New Black Panther Party wanted to take responsibility for Dallas. Quanell X acknowledged that Johnson had once been a member of his organisation but added that he was subsequently expelled for violating the party’s “chain of command” and advocating the acquisition of more weapons. All of this, of course, might be disingenuous but so was Barack Obama’s response.

After Congress turned down President Obama’s request to enact a law regulating power plants’ greenhouse-gas emissions, the Environmental Protection Agency turned to the states—not with a request, but with instructions to carry out the president’s energy policy. The EPA’s “Clean Power Plan” now faces the scrutiny of the nation’s chief regulatory review court, the U.S. Court of Appeals for the District of Columbia Circuit.

If the Constitution’s federalism is to endure, the Clean Power Plan must be struck down.

The Constitution establishes a federal government of limited and enumerated powers while the states retain a plenary “police power,” subject only to the specific limitations of federal law. This is what Justice Anthony Kennedy called the Constitution’s “genius”: It “split the atom of sovereignty” to ensure accountability when meeting both local and national concerns, while fostering rivalry between the two levels to curb excessive political ambition that might threaten liberty.

Only in recent decades did politicians learn how to realize their ambitions through collusion. The federal government now entices states with transfer payments to establish and administer social-welfare programs. And, in schemes that the courts describe as “cooperative federalism,” it offers states the choice to regulate their citizens according to federal dictates, as an alternative to the feds regulating directly and having states get out of the way.

Even these approaches were not enough for the Obama administration to cajole the states to carry out its energy agenda. So it resolved to obliterate one of the last vestiges of the Constitution’s vertical separation of powers: the bar on federal commandeering of the states and their officials to carry out federal policy.

The Clean Power Plan is enormously complicated, but its overall approach is straightforward. Previous emissions regulations have focused on reducing emissions from particular facilities, but this one relies on shifting electricity generation from disfavored facilities (coal-fired power plants) to those the EPA prefers (natural gas and renewables). The EPA then determined what, in its view, is the maximum amount of such shifting that each of the nation’s regional electric grids could possibly accommodate and calculated the emissions reductions.

Parcel those figures out by state, factor in additional reductions due to estimated efficiency improvements at older plants, and the result is state-specific reduction targets. The states can elect to achieve those targets themselves—or, if they decline, the EPA will do it for them. “Textbook cooperative federalism,” says the EPA.

Not quite. Whether or not the states choose to implement the plan directly, it leaves them no choice but to carry out the EPA’s federal climate policy. That’s because the EPA can destroy but not create. It can regulate emissions of existing facilities, but it lacks the legal authority to facilitate the construction and integration of new power sources, which is ultimately the only way to achieve the plan’s aggressive targets.

That duty falls to the states, which the plan depends upon to carry out what the EPA calls their “responsibility to maintain a reliable electric system.” Doing nothing, as in the cooperative federalism scenario, is not an option. CONTINUE AT SITE

The D.C. Circuit Court of Appeals hears arguments Tuesday in a challenge to President Obama’s use of unilateral federal and executive power to impose his climate agenda. The case is a watershed for the Constitution’s separation of powers that will echo well beyond this Administration.

In the name of reducing carbon emissions, the Environmental Protection Agency’s so-called Clean Power Plan, or CPP, requires states to reorganize their energy economies across electric plants, energy-intensive industries and even households. In February the Supreme Court stayed enforcement of the CPP—an extraordinary rebuke—after some 28 states sued, arguing the plan usurps their authority under the Constitution.

The EPA asserted such authority under a brief and heretofore inconsequential backwater of the 1970 Clean Air Act known as section 111(d). No one who supported that law voted to, and the statutory text does not, empower the EPA to address climate change. But the CPP requires the states to carry out federal policy instructions even if they refuse to submit their own compliance plans.

In the American system of cooperative federalism, the federal government is supreme and can pre-empt state laws, and it often does. The EPA has the power, for example, to impose efficiency improvements or air-quality standards on existing power plants. But with the CPP it is stretching this power to unprecedented levels and commandeering state resources.

At the heart of cooperative federalism is the right of refusal—states must retain the power to opt out of any federal scheme. If that scheme is grounded in a law passed by Congress, the feds can take over and regulate themselves. In this case the EPA has no authority to do anything of the kind.

Even if the CPP explicitly banned coal-fired power, the EPA cannot mandate that states switch to solar panels and wind turbines. The agency can destroy but it cannot create. Here the EPA is expecting that states will undertake the extensive and costly preparation and regulation to compensate for lost carbon power because they have no other choice to keep the lights on. The EPA is happy to let states take responsibility for problems the EPA is creating.

The Supreme Court has often policed and struck down such commandeering. In 1992’s New York v. United States, the High Court invalidated a command to states related to low-level radioactive waste, while 1997’s Printz v. United States overturned a provision on background checks for gun purchasers. As recently as the ObamaCare cases of 2012, the Court ruled that the law’s Medicaid expansion was an unconstitutionally coercive “gun to the head” and gave states the right to opt out.

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