RUTHFULLY YOURS

Mr. Tribe is a professor of constitutional law at Harvard Law School and a University Professor at Harvard University. He was retained by Peabody Energy to provide an independent analysis of the proposed EPA rule.
The EPA acts as though it has the legislative authority to re-engineer the nation’s electric generating system and power grid. It does not.

As a law professor, I taught the nation’s first environmental law class 45 years ago. As a lawyer, I have supported countless environmental causes. And as a father and grandfather, I want to leave the Earth in better shape than when I arrived.

Nonetheless, I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation’s electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means.

Although my comments opposing the EPA’s proposal were joined by a major coal producer, they reflect my professional conclusions as an independent legal scholar. I say only what I believe, whether I do so pro bono, or in this case having been retained by others. After studying the only legal basis offered for the EPA’s proposed rule, I concluded that the agency is asserting executive power far beyond its lawful authority.

The Clean Power Plan would set a carbon dioxide emission target for every state, and the EPA would command each state, within roughly a year, to come up with a package of laws to meet that target. If the agency approves the package, the state would then have to impose those laws on electric utilities and the public

Harvard Law Prof. Jeannie Suk writing at newyorker.com, Dec. 15:

Students seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor. Student organizations representing women’s interests now routinely advise students that they should not feel pressured to attend or participate in class sessions that focus on the law of sexual violence, and which might therefore be traumatic. These organizations also ask criminal-law teachers to warn their classes that the rape-law unit might “trigger” traumatic memories. Individual students often ask teachers not to include the law of rape on exams for fear that the material would cause them to perform less well. One teacher I know was recently asked by a student not to use the word “violate” in class—as in “Does this conduct violate the law?”—because the word was triggering. Some students have even suggested that rape law should not be taught because of its potential to cause distress.

Autocrats can always cultivate prodigies. The question is what to do with the remaining 99%.

Imagine an economic historian in the year 2050 talking to her students about the most consequential innovations of the early 21st century—the Model Ts and Wright flyers and Penicillins of our time. What would make her list?

Surely fracking—shorthand for the combination of horizontal drilling and hydraulic fracturing that is making the U.S. the world’s leading oil and gas producer—would be noted. Surely social media—the bane of autocrats like Turkey’s Recep Tayyip Erdogan and of parents like me—would also get a mention. Mobile apps? Check. The emerging science of cancer immunotherapy? Hopefully, with fingers tightly crossed.

After drawing up this list, our historian would then observe that each innovation had “Made in USA” stamped all over it. How strange, she might say, that so many Americans of the day spent so much of their time bellyaching about the wretched state of their schools, the paralyzed nature of their politics, their mounting fiscal burdens and the predictions of impending decline.

Perhaps because I grew up as an American living abroad, I’ve always been struck by the disconnect between American achievement and self-perception. To this day I find it slightly amazing that, in the U.S., I can drink water straight from a tap, that a policeman has never asked me for a “contribution,” that my luggage has never been stolen, that nobody gets kidnapped for ransom, that Mao-esque political purges are conducted only in the editorials of the New York Times .

Just a few weeks ago on the streets of Brooklyn, protesters chanted, “NYPD KKK, how many kids did you kill today?” But any elderly Kleagles from the KKK heyday minded to visit Fun City would find the NYPD an odd sort of Klan outfit. A Black Muslim called Ismaaiyl Abdullah Brinsley executes two police officers called Rafael Ramos and Wen Jian Liu – “obviously avatars of white privilege,” as Jay Nordlinger put it – and the nearest thing to white male privilege in this story is the socialist mayor on whom Officer Ramos and Liu’s grieving colleagues ostentatiously turned their backs. And Bill de Blasio uses his mother’s maiden name, and is married to a black sometime lesbian by whom he has two biracial children.

When I first heard of de Blasio, I recalled something Howard Dean had said when I shared a stage with him and Fred Thompson in Calgary four years ago. Dean had been enthusing about how today’s generation of young Americans were the most diverse ever and were way beyond the old categorizations: “They all have friends of every race, every ethnicity, every immigration status, every religion, every sexual orientation – and they all date each other.” In the Dean utopia, the big bearded imam is dating an undocumented pre-op transgender infidel and having a grand old time. Oh, you can titter, but you can sort of see Dean’s point when you look at the multiracial, multiorientational de Blasio family: until that one grim day (of which the Mayor spoke the other week) when their son Dante has his first, long-anticipated run-in with Dad’s own police department, the de Blasio clan are living the diversity dream.

“I first went to Cuba in January 1968, during the height of revolutionary aspirations,” writes New Left celebrity Tom Hayden in “50 Years Later It’s Time for Closure,” a Dec. 21 oped piece in the Sacramento Bee. On recent visits Hayden hung out with Cuba’s former minister of foreign affairs Ricardo Alarcon, and that inspired Hayden to write the forthcoming Listen Yankee! Why Cuba Matters. Meanwhile, Tom Hayden is excited about recent moves by President Obama.

“The Cuban Revolution has achieved its aim,” Hayden explains, “recognition of the sovereign right of its people to revolt against the Yankee Goliath and survive as a state in a sea of global solidarity.” Further, “After the fall of the Soviet Union, there was a decade of American triumphalism based on the mistaken belief that the Cuban state would collapse like East Germany. We underestimated Cuban nationalism.”

However, “a sticking point on the U.S. side was the persistent funding of ‘democracy promotion,’ or our secret efforts to promote a more open society.” Hayden further explains that Alan Gross “was a covert agent, not a home appliance distributor.”

Cuban spies Gerardo Hernandez, Rene Gonzalez, Ramon Labañino, Antonio Guerrero and Fernando Gonzalez, were all tried and imprisoned in the United States for gathering intelligence on U.S. air bases. They also infiltrated Brothers to the Rescue and tipped off the Castro regime, which scrambled MIG fighters and downed one of the Brothers’ unarmed planes, killing four people. Tom Hayden’s take is rather different: “The Cuban Five were protecting Cuba’s security from us, not acting as terrorists.”

When Ismaaiyl Abdullah Brinsley murdered NYPD Officers Rafael Ramos and Wenjian Liu as they ate lunch in their patrol car last Saturday, the only people who could possibly have been surprised were those who have not realized how assiduously Leftist and Muslim activists have worked – long before the deaths of Michael Brown and Eric Garner — to demonize the NYPD and law enforcement in general. The advent of the killer was only a matter of time.

It has been only lightly reported that Brinsley was a Muslim, and generally when it has been mentioned, it has been dismissed as a motive in favor of his statements about wanting to kill police officers to avenge Garner and Brown. But these two motivations – revenge for the perceived racist killings of two black men and Brinsley’s Islamic faith – are not mutually exclusive. Brinsley’s Facebook page featured a photo of the Qur’an open to the eighth chapter, where Allah exhorts the believers to “strike terror into the hearts of the enemies of Allah” (8:60).

Brinsley may have thought, what better way to strike terror into the hearts of the enemies of Allah than to kill a couple of infidel, racist police officers? Investigative journalist Patrick Poole found an additional sign of Brinsley’s attachment to Islam on his Facebook page, where Brinsley wrote at one point that he was heading to “Al-Farooq Tomorrow inshallah.” Poole notes: “If this reference by the cop killer was from Brooklyn (which is hard to discern since his Instagram account has been taken down), it may indicate that he was going to visit Masjid Al-Farooq in Brooklyn.”

Once you entertain the notion that social grievance entitles you to tread upon the rights of others, the difference between overrunning a mall and executing police officers is only a matter of degree.

On the same day that two New York City police officers were gunned down execution-style by a perpetrator who explicitly cited the deaths of Michael Brown and Eric Garner as his motivation, Black Lives Matter protesters in the Twin Cities overran the Mall of America in an organized trespass on private property. Protestors were warned days in advance that their planned demonstration was not welcome and would not be tolerated. Naturally, the protestors proceeded anyway.

Only 25 people were arrested. There should have been many, many more.

More links the protest at the Mall of America and the killings of Officers Rafael Ramos and Wenjian Liu in New York than their occurring on the same day. The commission of rights-violating protest, its endorsement by many within the culture, and its toleration by lawful authorities invite an escalation of violence. Once you entertain the notion that a sense of grievance entitles you to tread upon the rights of others, the difference between overrunning a mall, blocking traffic on an interstate, burning down a business, and executing police officers is only a matter of degree.

Consider how protest organizers justified their behavior at the Mall of America, as reported by the St. Paul Pioneer-Press:

Organizers and participants… said [the disturbance] was a necessary inconvenience to call attention to a critical issue.

The Obama administration is not the first to stick itself into an Israeli election ‎process. During the Clinton administration, when for a short period there was a ‎direct election of the prime minster, the White House was happy to send over its ‎most savvy and experienced campaign team, including pollster Stanley Greenberg, ‎James Carville and Bob Shrum, to help Labor Party leader Ehud Barak oust Benjamin ‎Netanyahu in his re-election bid in 1999. The White House had also favored ‎Shimon Peres in his race against Netanyahu in 1996, which ‎Netanyahu narrowly won.‎

Demonstrating that Democratic U.S. presidents continue to want Netanyahu out of ‎the way, some of the same campaign team from 15 years back, including Stanley ‎Greenberg, are again descending on Israel to help the current Labor Party leader ‎Isaac Herzog try to oust the prime minister in the March 17 elections. Of course, American ‎campaign operatives are free agents, and have not been ordered to report for duty ‎in Israel by either President Barack Obama or Secretary of State John Kerry. But the ‎campaign messaging as to the favored party from the American perspective is ‎nonetheless pretty clear. There was a time when both Democrats and Republicans ‎by and large supported Israel’s elected leader, whether that leader was from the ‎Right or the Left, and kept out of Israel’s elections. It was generally a bit tougher for ‎American administrations if Israel’s leader was from the Right, but today any ‎pretense of equal treatment is long past. The same splits and partisanship which ‎now divide American politics have carried over to how American officials try to ‎participate in and influence Israeli elections.‎

Both Obama and Netanyahu came into office in 2009. They had vastly ‎different agendas and expectations of each other. Netanyahu wanted America to ‎focus first on stopping Iran’s nuclear program, which it considered an existential ‎threat. Obama wanted Israel to make concessions to the Palestinians and stop ‎settlement construction. In essence, Obama wanted to bring American policy more ‎into line with that of the Europeans and the “international community,” which was ‎always ready to blame the absence of peace on Israel, and in particular on Israeli ‎building in the West Bank and Jerusalem. Obama also wanted something much ‎bigger than a halt to Iran’s nuclear program — but rather a new American and ‎Western relationship with Iran, creating a strategic partnership with the mullahs, ‎much as say Henry Kissinger accomplished with China in the early 1970s. ‎

A virus of devastating proportions has been let loose on the world stage. This one is far more dangerous than Ebola and much more difficult to contain. It is the use of violence as a political tactic.

The anarchists, the professional agitators, the Muslim radicals, the “lone wolves” have reached the conclusion that violence works. It achieves attention; it forces the hand of authority; it challenges the rule of law.

When people die in the wake of hostage taking in Sydney, or two New York police officers are assassinated on the streets of Brooklyn, or children are killed in Pakistan, or people are decapitated by ISIL leaders or property is destroyed by soi disant defenders of justice, the stabilizers of order are put on notice. Clearly these actions aren’t the same, and there is the temptation at conflation, but from the point of view of those challenging “the system,” either the prevailing religious sentiment or Constitutional principles, violence is a mechanism that inhibits action or intimidates a foe.

By any reasonable historic standard, the virus of the 21st century is nowhere as deadly as the violence in the 20th century. Yet there is a difference. The present virus is random. It can break-out anywhere, any time. The present virus has legs because of instant communication and social media. Most significantly, the “sensitivity trainers” have made it difficult, if not impossible, to restrain violence with counter-violence. As a consequence, the offense dominates the field of play.

“The Obama administration is ushering in a transformational era for millions of Cubans who had suffered as a result of more than fifty years of hostility between the two nations;” so opined the New York Times last Thursday in applauding Mr. Obama’s “historic move on Cuba.” Certainly, talking is better than not, and the benefits of trade tend to be mutual, but I had no idea that the people of the United States were responsible for the repressive conditions under which most Cubans live. I, obviously naively, had always thought that the absence of the rule of law, the suppression of free speech, the poverty, the jailing of dissidents had something to with the communist government the Castro brothers had imposed on their Country fifty years ago. The opinion leaders of the Times apparently believe differently. We Americans, according to them, share in the blame.

Mr. Obama emphasized that point when he mistakenly inferred that the United States had been a colonizer of Cuba, rather than its liberator in the Spanish-American War. He spoke on Thursday, with words directed at the Cuban people: “Others have seen us as a former colonizer, intent on controlling your future. Let us leave behind the legacy of both colonization and communism.” While it is true that the Cuban Constitution, until the early 1930s, included an “intervention” clause,” Cuba was never colonized by the United States. It was true, though, that American companies like United Fruit operated in Cuba, with advantages accruing to shareholders at the expense of Cuban employees, and the Mafia, an American institution, made Havana an open city in the post-World War II era. So, why does Mr. Obama twist and exaggerate history for his own purposes? Why does mainstream media not call him out?