The Transformation Of Justice Clarence Thomas

Do you remember when Justice Clarence Thomas, to the racist left-wing press, was just too dumb to hold a position on the Supreme Court?  He was unable to think for himself, and effectively was a puppet or clone of Justice Scalia.  Adam White, in a 2014 piece at Library of Law & Liberty, collected a small roundup of quotes from the 90s from the leading lights of left-side Supreme Court reporters:

[T]he Left . . . casually assumed, two decades ago, that the newly appointed Thomas would follow Scalia in all things. That’s no exaggeration. The Washington Post’s Mary McGrory asserted in 1992: “Thomas has come on as Scalia’s puppet.”  Linda Greenhouse, of the New York Times, was gentler, but no less prejudiced, when she called Scalia Thomas’s “apparent mentor.”  Newsweek trafficked in outright conspiracy theory: “Not only is Scalia an aggressive and articulate proselytizer but one of his former law clerks now works for Thomas. The clerk, Newsweek has learned, exerts considerable influence over the rookie justice.”  All told, the conventional wisdom was best reflected by an ACLU official, who complained that “Thomas and Scalia are one person with two votes.”

So now, with Scalia gone, Thomas must be a complete irrelevancy -- right?  The funny thing is that, in the intervening two decades, Thomas has somehow transformed from a dope into a genius -- an evil genius, of course, but a person of such powerful (if twisted) intellect that he has singlehandedly turned constitutional law into something that civilized progressives can hardly recognize.

As the latest contribution to describing the transformation of Justice Thomas, consider this piece by Dahlia Lithwick and Mark Joseph Stern in Slate on August 2, headline "The Clarence Thomas Takeover."  First of all, Dahlia and Mark, what do you think of Thomas's judicial philosophy?  Ugh!!!  A few choice quotes:

The justice has spent his career pushing a fringy, right-wing ideology.

[Thomas] has spent more than 25 years staking out a right-wing worldview that can generously be described as idiosyncratic.

[Thomas has] spent his career teetering off the right edge of the federal bench. . . .  

And yet . . . This kook with the "fringy, right wing" "idiosyncratic" views seems to be orchestrating a "takeover" of constitutional law.  How could this possibly be happening?

Lithwick and Stern don't trouble themselves to actually quote any of Thomas's opinions, but perhaps we ought to look at a couple of the more famous ones that have the progressives up in arms.  For example, there is the Thomas concurrence in the 2015 case of Department of Transportation v. Association of American Railroads, where the issue was the authority of the National Railroad Passenger Corporation (aka Amtrak) to issue regulations to the railroad industry.  From Thomas's concurrence:

We have come to a strange place in our separation-of-powers jurisprudence. Confronted with a statute that authorizes a putatively private market participant to work hand-in-hand with an executive agency to craft rules that have the force and effect of law, . . . [w]e never even glance at the Constitution to see what it says about how this authority must be exercised and by whom. 

The Constitution does not vest the Federal Government with an undifferentiated “governmental power.” Instead, the Constitution identifies three types of governmental power and, in the Vesting Clauses, commits them to three branches of Government.  Those Clauses provide that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States,” Art. I, §1, “[t]he executive Power shall be vested in a President of the United States,” Art. II, §1, cl. 1, and “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” Art. III, §1.  These grants are exclusive. 

Oh my God, this guy actually reads the Constitution, and quotes from it, and thinks that its text might have something to say about the resolution of the question before us.  Really, can you get more "fringy" and "right wing" than that?  How are we supposed to achieve perfection in human affairs if all-knowing bureaucrats in the administrative state cannot create thousands of pages of regulations and also enforce them?

Then there is Thomas's view that the Constitution ought to be interpreted to make the federal government one of limited powers.  Where can he possibly have gotten that idea -- an idea that could undermine a good half or more of what the federal government currently does?  Perhaps from Article I, Section 8 of the Constitution, as elucidated by James Madison in Federalist 45:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. . . .  

And yet somehow the federal government now claims the power to insinuate itself into every aspect of our lives.  How did that happen?  From Thomas's concurrence in Lopez v. United States (1995):

[O]ur case law has drifted far from the original understanding of the Commerce Clause. . . .  We have said that Congress may regulate not only "Commerce ... among the several States," U. S. Const., Art. I, § 8, cl. 3, but also anything that has a "substantial effect" on such commerce. This test, if taken to its logical extreme, would give Congress a "police power" over all aspects of American life.  Unfortunately, we have never come to grips with this implication of our substantial effects formula. . . .  

Read a few of these things and you suddenly realize that this is a guy who understands that the progressive vision of achieving perfection in human affairs through rule by experts is fundamentally incompatible with our Constitution, with its limited and separated powers.  

I don't really have a position on how "smart" Clarence Thomas might be.  Certainly, he can put together a well-written and well-thought-out judicial opinion.  But as readers here know, I don't have much respect for the merely smart.  Pretty much everybody says that Barack Obama is "smart," and maybe they're right.  Obama is so "smart" that he uttered this gem (in 2012):

You know we can’t just drill our way to lower gas prices. . . .  [A]nybody who tells you that we can drill our way out of this problem doesn’t know what they’re talking about. . . .  

Here's the key difference between Thomas and Obama:  Obama is a groupthinker.  He internalizes what he hears others say.  He has never had an original thought in his life.  Thomas thinks for himself.  If the subject is the Constitution, instead of listening to what others say, he reads the document itself, and forms his own views.  And then, although he might be talked out of his views by reasoned argument, he can't be bullied out of those views by social pressure.  That may or may not make him "smart" by conventional measures, but you can see why it makes him a huge threat to the progressive project to supersede the Constitution with an unaccountable administrative state of unlimited powers.

Do You Know How To Identify A "Constitutional Crisis"?

The funny thing about constitutional law is that most everybody who has not studied it, and many who have, think that it is a really complicated and sophisticated subject that only extremely smart specialists can understand.  Then you read the document, which is remarkably short, and maybe you also read some of the Federalist Papers for a little recreation, and you're left wondering, what about this is so complicated?  Maybe it's that it takes some serious obfuscation to convince you that the document means the exact opposite of what it says. 

Two things caught my eye on the constitutional front from the New York Times in the last couple of days.  Tuesday, it was an op-ed by a guy named Yascha Mounck, identified as a "lecturer at Harvard" (the guy must be really smart!), headline "Trump Is Destroying Our Democracy."  Excerpt:

Over just a few days last week, President Trump and his allies stepped up attacks on Robert Mueller, the special counsel investigating the campaign’s connections to Russia. They tried to push Attorney General Jeff Sessions out of office. They thought out loud about whether the president can pardon himself.

The second article appeared yesterday, headline "Court Complicates Trump's Threat to Cut 'Obamacare' Funds."   Excerpt:

[President] Trump has been threatening [to eliminate so-called "cost sharing" subsidies for insurance companies under Obamacare] for months . . . .  The health law requires insurers to help low-income consumers with their copays and deductibles. Nearly 3 in 5 HealthCare.gov customers qualify for the assistance, which can reduce a deductible of $3,500 to several hundred dollars. The annual cost to the government is about $7 billion.

OK now, guess which one of these two, according to the Times's writer, is "a full-blown constitutional crisis."  Of course, it's the first one.  And as to the second?  The article contains no mention of any constitutional issue at all.  What, there's a problem?  Of course, if you take sufficient time (about one minute will do it) to check with the Constitution itself, you will quickly realize that there is nothing constitutionally problematical about any of Trump's conduct discussed in Mounck's piece; but there is a gigantic constitutional problem with the Obamacare cost sharing payments.  As usual, the Times is giving you carefully calculated misdirection masquerading as news.

All I can say about Mounck's piece is that it seems that hyperventilating about a non-existent "constitutional crisis" about everything President Trump says is the new thing now that "Russia collusion" has gone poof.  They tried to push Attorney General Jeff Sessions out of office!!!!  Scary!  Oh, wait -- doesn't the President have the absolute right to fire the attorney general, and haven't plenty of past Presidents done exactly that?  (Article II, Section 1: "The executive power shall be vested in a President of the United States of America.")  They thought out loud about whether the president can pardon himself!!!!!  Scary!  Oh wait -- what about Article II, Section 2 ("[H]e shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.")?  The drafters seem to have left out the exception for the President pardoning himself.  So it's now a "constitutional crisis" to notice that out loud?

I'll grant that the business about "attacks on [special counsel] Robert Mueller" is more complicated, but only slightly so, and only because of one of the worst Supreme Court decisions of all time, Morrison v. Olson of 1988.  That case upheld restrictions in a statute passed by Congress (not the same as the current statute) on the President's ability to fire an independent counsel.  The vote was 7-1 (Justice Kennedy taking no part), with Justice Scalia as the lone dissenter.  Scalia considered that dissent his best opinion while on the Court, and I agree with him (at least among his opinions that I've read).  Key quote:

Article II, 1, cl. 1, of the Constitution provides:  "The executive Power shall be vested in a President of the United States."  As I described at the outset of this opinion, this does not mean some of the executive power, but all of the executive power. It seems to me, therefore, that the decision of the Court of Appeals invalidating the present statute must be upheld on fundamental separation-of-powers principles. . . .     

Does anything about that sound similar to something you've read here?  Today, all of the seven justices who voted the other way are gone.  Scalia's dissent has justifiably achieved widespread fame.  It is very likely that a firing of the "special counsel" by President Trump would be upheld by today's Supreme Court, although Justice Kennedy as always is a wild card and the statist bloc would likely dissent on the deep constitutional principle that they're in favor of anything that hurts Trump.  And if the Supremes failed to uphold the President's firing of the special counsel, then that would be the constitutional crisis, not Trump's action.

And what about this business of the Obamacare cost sharing subsidies?  Here is the Times spinning like a top to describe the legal issue:

The [Obamacare] law also specifies that the government shall reimburse insurers for the cost-sharing assistance that they provide.  Nonetheless, the payments remain under a cloud because of a disagreement over whether they were properly approved in the health law, by providing a congressional "appropriation."

Does the Constitution have anything to do with this?  Not that you can find in this article.  Indeed, the word "constitution" does not appear.  But why the scare quotes around the word "appropriation"?  Perhaps they are concerned that a few readers may actually know about Article I, Section 9, Clause 7 of the Constitution: "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law."  

Has there been an "appropriation" made for these cost sharing subsidies?  Actually not.  The Obama administration initially asked Congress to make an appropriation of the needed funds (about $7 billion per year) and Congress didn't do it.  And then Obama just went ahead and spent the unappropriated money.  By now they're up to about $30 billion or so of the unconstitutional spending.

If you want an excellent detailed write-up of the law on this subject, and how it is not remotely a close question that the government has been unconstitutionally spending tens of billions of dollars of unappropriated money in defiance of the Constitution, I would recommend the decision of District Judge Rosemary Collyer in United States House of Representatives v. Burwell.  By the way, that is the opinion where Judge Collyer declared the spending of these billions to be a violation of the Constitution.  But the government just goes ahead and keeps spending the money anyway.  

And now President Trump is saying he's going to put a stop to it.  In Times-world, that's outrageous.  After all, "The health law requires insurers to help low-income consumers with their copays and deductibles."  Isn't that all we need to know?  Constitution?  What Constitution? 

The Deep Constitutional Thinking Of Sally Yates

Sally Yates was the high-ranking hold-over Justice Department official who briefly became Acting Attorney General in January while Jeff Sessions was awaiting confirmation.  Yates then used that perch to issue an order to Department lawyers not to defend new President Trump's Executive Order on immigration in court.  She quickly (and appropriately) found herself a private citizen.  I covered that situation in a February 1 post titled "The Bureaucrats Think That They Don't Answer To The President."  Now Yates returns with an op-ed in the New York Times over the weekend, setting forth her deep constitutional thought on the independence of the Justice Department from presidential control.  The headline is "Protect the Justice Department From President Trump."  

As I have pointed out multiple times, there is nothing complicated about the constitutional law on presidential control of the Justice Department.  Article II, Section 1 of the Constitution places all of the executive power of the federal government in the President:  "The executive power shall be vested in a President of the United States of America."  The Justice Department is an executive agency, and therefore reports to the President in every respect.  That of course does not mean that it is a good idea for the President to get personally involved in day-to-day prosecutorial decisions; but he is perfectly entitled to do so if he wants.  And he certainly has final say on all policies of the Department.

Yates has a different view.  Here are a few key quotes from her op-ed:

The president is attempting to dismantle the rule of law, destroy the time-honored independence of the Justice Department, and undermine the career men and women who are devoted to seeking justice day in and day out, regardless of which political party is in power. . . .  

The Justice Department is not just another federal agency. It is charged with fulfilling our country’s promise of equal and impartial justice for all. As an agency with the authority to deprive citizens of their liberty, its investigations and prosecutions must be conducted free from any political interference or influence, and decisions must be made based solely on the facts and the law.  To fulfill this weighty responsibility, past administrations, both Democratic and Republican, have jealously guarded a strict separation between the Justice Department and the White House when it comes to investigations and prosecutions. While there may be interaction on broad policies, any White House involvement in cases or investigations, including whom or what to investigate, has been flatly forbidden.

Yates doesn't trouble herself to give us a citation of something in the Constitution that supports her position.  Nor does Yates inform us of the origin of what she calls the "time honored" "strict separation between the Justice Department and the White House" that has supposedly been followed by "past administrations, both Democratic and Republican."  (According to this February 2017 post from Jane Chong at Lawfare, the existence of this separation as anything rising to a formal policy only goes back to the Jimmie Carter administration, and has always been riddled with exceptions.)  If we're going to talk about "dismantl[ing] the rule of law," how about the rule that says that every four years the people get to elect a new guy, with policies different from the prior guy, and the new guy gets to implement his policies?  

Sally's view, of course, is that Justice Department activities are completely neutral and apolitical, so the mere President has no legitimate interest in what is going on.  The dedicated career people are just "seeking justice"!  Can we really let this crude boor meddle in that sacred task?

Just in case you have the exceedingly naive impression that the lawyers at the Department of Justice really are neutral and apolitical, and just "seeking justice," perhaps it is time for a brief history lesson focusing on the years of the Obama administration.  Here goes:

• First, Jonathan Swan at The Hill on October 26, 2016, helpfully did a comprehensive analysis of political contributions made by bureaucrats in the various federal agencies in the 2016 election cycle.  Here's the result for the Justice Department:  “Employees of the Department of Justice, which investigated Clinton’s use of a private email server while she was secretary of State, gave Clinton 97 percent of their donations. Trump received $8,756 from DOJ employees compared with $286,797 for Clinton."
• The IRS scandal came to light just over four years ago, in May 2013, shortly after Barack Obama's re-election.  If you're not remembering it, that's the one where it was revealed that the IRS had been systematically stalling the tax-exempt status of conservative and tea party groups during the 2012 election cycle, thereby hampering the ability of those groups to oppose the President's agenda.  The head of the IRS group in the middle of the scandal, one Lois Lerner, took the Fifth before Congress, and then retired.  The Justice Department investigation?  I can't seem to find anything about it.  I also can't seem to locate Yates's op-ed calling for a Special Prosecutor in the matter.
• How about the series of ridiculous phony prosecutions of the big banks in the aftermath of the financial crisis?  For a couple of my representative posts, see here and here.  Do you think there may have been anything real to these?  Things like:  blaming Citi and BofA for Fannie's and Freddie's losses on mortgages; criminally prosecuting JP Morgan for failing to catch Bernie Madoff, when the SEC had far more information and still completely missed it; criminally prosecuting JP Morgan for not catching its "London whale" trader; and so on and on.  Of course, none of the cases ever went to trial, and the banks agreed to one multi-billion dollar settlement after the next.  The total collected in fines and settlements?  About $110 billion.  But here was the ultimate point, from Kimberly Strassel in the Wall Street Journal, December 3, 2015 (quoted at jebkinninson.com, which is not behind paywall):

[T]he Justice Department . . . for 16 months has engaged in a scheme to undermine Congress’s spending authority by independently transferring dollars to President Obama’s political allies. The department is in the process of funneling more than half-a-billion dollars to liberal activist groups, at least some of which will actively support Democrats in the coming election.  It works likes this: The Justice Department prosecutes cases against supposed corporate bad actors. Those companies agree to settlements that include financial penalties. Then Justice mandates that at least some of that penalty money be paid in the form of “donations” to nonprofits that supposedly aid consumers and bolster neighborhoods.

The Justice Department maintains a list of government-approved nonprofit beneficiaries. And surprise, surprise: Many of them are liberal activist groups. The National Council of La Raza. The National Urban League. The National Community Reinvestment Coalition. NeighborWorks America (which awards grants to left-leaning community organization groups, and has been compared with Acorn).  This strategy kicked off with the $13 billion J.P. Morgan settlement in late 2013, though in that case the bank was simply offered credit for donations to nonprofits. That changed with the Citigroup and Bank of America settlements, which outright required $150 million in donations. The BofA agreement contains a provision that potentially tees up nonprofit groups for another $490 million.

If they were right-leaning groups, they couldn't even have gotten a tax exemption!  This is what "seeking justice" means to Yates.  Again, I can't seem to find her op-ed calling for a Special Prosecutor.

•  Regular readers here are surely familiar with my now-sixteen-part series, "The Greatest Scientific Fraud Of All Time," which focuses on tampering with world temperature records by federal agencies NASA and NOAA.  You might ask, why doesn't Congress just subpoena the records from those agencies and subject them to independent audit?  You must be forgetting Part XIII, where I pointed out that in October 2015 the House Committee on Science, Space and Technology did indeed subpoena these very records.  And NOAA flatly refused to produce anything.  And then, the Justice Department flatly refused to enforce the subpoena.  Yup, they're just neutral, apolitical lawyers "seeking justice."
• As an example of one of those neutral apolitical Justice Department prosecutors, consider the recent ex-U.S. Attorney for the Southern District of New York, Preet Bharara.  His prior job was chief counsel to Senator Chuck Schumer -- you can't get much more apolitical than that!  I have previously covered some of Bharara's efforts, including at this post titled "Good Riddance To Preet Bharara."  His tenure as U.S. Attorney is fairly characterized as extreme grandstanding with a strong political tint.  As examples, Bharara made it a priority to take down the Republican Majority Leader of the New York State Senate, Dean Skelos, for the alleged crime of leaning on friends to give his son a little-work job.  (Skelos was convicted, but that conviction is on appeal, and on extremely thin ice in light of the Supreme Court's reversal in the McDonnell case.)  Meanwhile Bharara could not have been less interested in the fact that Chelsea Clinton got a little-work job paying about ten times as much at NBC News, while her mother was Secretary of State.
• And you could go on with this literally all day.  Fast and Furious?  The New Black Panther Party?  Whatever!

For reasons I have previously stated, I agree that it is generally a good idea for the President to keep out of decisions on whom to prosecute and not to prosecute.  I am also not standing up for President Trump's recent attacks on Attorney General Jeff Sessions.  However, it is absolutely clear that the Justice Department was thoroughly politicized under Barack Obama, and President Trump has every right to take it back.  The career lawyers are completely an arm of the Democratic party and its agenda, and if most or all of them were fired, that would be a good thing as far as I'm concerned.    

How Dumb Are The Europeans? Phasing Out Gasoline Powered Cars

The big wave sweeping Europe at the moment is the movement to phase out gasoline powered cars (and diesel cars too) in favor of electric cars.  It's all part of the goal of achieving "zero emissions" -- whatever that means.  Do these people have any idea that electricity generation also involves "emissions," albeit at a more remote location?  OK, it is possible to generate "zero emissions" electricity with nuclear reactors, but they're phasing those out too.  Wind and solar?  They don't work, at least not to power an electric grid on their own.  And how exactly is solar power going to make any contribution at all to reducing emissions from automobiles when everybody wants to recharge their electric cars in the middle of the night, when solar produces nothing?

As usual with these things, it was Germany that got the ball rolling.  Last October its Bundesrat (upper legislative chamber) passed a resolution to allow only "emissions free" vehicles on the road after 2030 -- with taxpayer subsidies, of course, to strong-arm the people into going along.  From Dezeen, October 10, 2016:

The country's Bundesrat, or Federal Council, passed a resolution late last week to only approve emission-free cars for use on the roads by 2030.  This would effectively phase out vehicles with internal combustion engines . . . in 14 years' time. . . .  The Bundesrat resolution . . . calls for the "stimulation of emission-free mobility", which could come in the form of buying incentives similar to those already in place in many countries.

Now just this month things have really taken off.  On July 6 France announced a "range of initiatives" intended to get rid of gasoline and diesel powered cars by 2040.  From CNN, July 6:

The new French government wants to end sales of gas and diesel-powered vehicles by 2040 as it fights global warming.  After that date, automakers will only be allowed to sell cars that run on electricity or other cleaner power. Hybrid cars will also be permitted. . . .  The government outlined a range of initiatives to help reach its goal, including support for the development of alternative fuels such as electricity and hydrogen. It's also planning to finance new infrastructure for charging electric cars.

And a few short weeks later, it was the UK jumping on the bandwagon.  From CNN, July 26:

Britain will ban sales of new gasoline and diesel cars starting in 2040 as part of a bid to clean up the country's air.  The decision to phase out the internal combustion engine heralds a new era of low-emission technologies with major implications for the auto industry, society and the environment.   "We can't carry on with diesel and petrol cars," U.K. environment secretary Michael Gove told the BBC on Wednesday. "There is no alternative to embracing new technology."

Nor is the wave confined to the government sector.  Over in the seemingly private sector, Volvo moved to be the first automobile company to demonstrate its superior kowtowing sensabilities.  From The Verge, July 5:

Volvo just announced plans to phase out gas-only car production by 2019, at which time all new Volvos will either be fully electric or electric hybrids.

The two obvious questions to ask are (1) How much will this cost consumers and taxpayers? and (2) Given that most electricity comes from the same fossil fuels that power combustion-engine cars, how much if any emissions will actually be saved?

Since this is Europe, you can be sure that no one is addressing question number one.  The costs will be paid from the infinite pile of free government money, and will be deeply buried and hidden so that nobody will be able to figure out how much he or she is bearing.  But question number two is actually getting some attention.  Some annoying garden party skunk decided to address the issue of whether electric cars actually save any emissions in a recent article in Issues in Science and Technology, titled "Electric Vehicles: Climate Saviors, or Not?"   No Tricks Zone gives the article a write-up on July 27.   And what is the answer?  The answer is that use of electric vehicles "effectively does nothing" to reduce emissions.  From No Tricks Zone:

According to a new paper published in the journal Issues in Science and Technology entitled “Electric Vehicles: Climate Saviors, Or Not?”, driving an electric vehicle (EV) rather than a conventional petroleum-powered vehicle effectively does nothing to reduce global-scale CO2 emissions.  This is because charging EVs on electricity grids that rely heavily on fossil fuel energy sources (coal) increases CO2 emissions.

The obvious problem is that most of the power on most of the world's electric grids comes from fossil fuels.  Yes, if you happen to be using your electric car in France, which gets much of its electricity from nuclear sources, you can have a teensy effect on world emissions.  (That is, until the French phase out their nuclear reactors, something about which there has been much talk of late.)  And then there are countries like China (twenty times the population of France!) and Japan that get most of their electricity from coal:

[C]harging EVs on electricity grids that rely heavily on fossil fuel energy sources (coal) increases CO2 emissions.  In coal-reliant countries like China and Japan, owning and driving EVs contribute significantly more to CO2 emissions than using petroleum-powered vehicles.

But aren't wind and solar power becoming ever bigger factors on the world's electricity grids?  Actually, that's all meaningless show.  The truth is the opposite:

The problem for CO2 mitigation and EV advocates is that fossil fuel-powered electricity grids are far more prevalent across the world.  And this will continue to be the case as “1,600 coal plants are planned or under construction in 62 countries“, which will “expand the world’s coal-fired power capacity by 43 percent” (New York Times, July, 2017).

So what's the bottom line?  "Negligible 4.9% Emissions Difference Between EVs And Petroleum Vehicles."  At a deeply hidden cost of some tens or hundreds of billions of dollars.

But of course there is that frisson of excitement that the bureaucrat feels when exercising the raw power to order the people to pay $5000 or $10,000 more for each car to achieve absolutely nothing.

A Beautiful Night On The Greenwich Village Waterfront

On Wednesday evening about 8 PM, I took a walk down to the Greenwich Village waterfront, and went out on the Charles Street pier.  It was a beautiful night.  The sun had just set.

Looking Northeast, you can see the excellent park along the water, with multiple new condos just behind it (as well as the very large subsidized Westbeth project).  The building with a spire lit up in white at the center is the Empire State Building.  It's about 2 miles away.  It seems much closer in person than it does in this photograph.  The cranes at the left are part of the new Hudson Yards construction project in the West 30s, about 1.5 miles away.

Looking South, you can see some of the towers of the Financial District, again about 1.5 miles away.  The big one in the middle is the new One World Trade Center.  Just to its right, only about half as tall but very brightly lit, is the headquarters of Goldman Sachs.

Looking West, you see the waterfront of Hoboken, New Jersey.  The Hudson River (actually an estuary rather than a river) is well more than a mile wide at this point.  Again, Hoboken seems much closer in person than it does in the photo.  The brightly lit clock tower is the Hoboken Terminal of NJ Transit.  Check out the crescent moon in the upper left!

Next time you are in New York, I highly recommend a walk in this area.  When you get tired, there are many good restaurants a couple of blocks inland.

In Government, Failure Is The Way To Get Yourself More Money

I have noted previously on many occasions the remarkable extent to which total failure by a bureaucracy is actually the main strategy used to squeeze more money out of the taxpayers and thereby grow the agency.  See for example my Poverty tag.  For today's subject, consider the state of public transit in New York.

It's seemingly been a bad few months for New York's MTA, operator of the subway system and also of two of the three commuter railroads.  (The third commuter railroad, NJ Transit, is run by the state of New Jersey.)  Here is a timeline of some of the problems from DNAInfo.  In most years there are no train derailments at all, but this year it's been one after the next.  Going back to the beginning of the year, on January 4, a Long Island Rail Road train blew through the end of the line and crashed into the Brooklyn terminal, injuring dozens.  On March 24 a train derailed going over the switches in Penn Station, and then another train did the same on April 3, and yet another one on July 6.  (These were Amtrak and NJ Transit trains, but the derailments screwed things up for the MTA's Long Island Rail Road as well, since it shares Penn Station.)  On the subway, there was a big derailment of an A train in Harlem on June 27, again with dozens of injuries; and then a derailment of a Q train in Brooklyn on July 21.  A derailment generally shuts down the line or station affected for at least a day, and often multiple days; so these are major events.  Outside of the derailments, subway delays have seen a big increase this year over the recent past.  And then on July 10, Amtrak began a major round of repairs at Penn Station, causing diversion to more remote terminals of many LIRR trains that normally would come into Manhattan.

Needless to say, all of this chaos has brought an outcry that the situation needs to be fixed.  And, this being progressive New York, everybody can agree on how to fix things:  They need more money!

Governor Cuomo -- the guy who appoints the MTA Board members, and thus looks to be on the wrong end of the political firestorm -- has now brought back former MTA Chairman Joe Lhota to resume the job.  (Lhota's previous tenure in 2011-12, although relatively brief, was widely regarded as a success.)  On Tuesday Lhota came up with his so-called "rescue plan."  Here is the New York Times report on the plan.  You won't be surprised to learn that the basic idea is more money, more money, and more money.

The authority’s chairman, Joseph J. Lhota, outlined a sweeping set of fixes that he vowed would turn around steadily deteriorating service. The plan included at least 30 separate measures to address the major problems plaguing the system, including antiquated signals and subway fires, and called for hiring 2,700 new workers. . . .  The improvements come with a steep bill — about $450 million in operating costs and $380 million in capital investment — and Mr. Lhota called on Mayor Bill de Blasio to help fund the plan.     

The genius of this is that, in the crisis of the moment, with derailments and delays constantly in the news, nobody stops to ask why the vast sums of money they were already getting were not sufficient to maintain the system.  Is the current budget being used effectively?  This question is just too crude to be asked in the middle of such a crisis.  Certainly, the politicians are unanimous in their view that this is not the time to start blaming the inefficiency of the unionized work force, but rather is an opportunity to hit up the taxpayers.  From E.J. McMahon in the New York Post on June 26:

Amid all the finger-pointing over who’s to blame for the subway “summer of hell,” New York’s leading politicians at least agree on this much: The transit system needs more money. 

But of course the big problem in New York is that the current budget is not being used effectively at all.  Getting a handle on just how ineffective the spending is is not easy, but I can give a few data points.  In a post back in November 2014, titled "MTA Reinvention Commission Misses The Elephant In The Room," I pointed to data collected by Alon Levy of Pedestrian Observations that New York's construction costs for transit projects were in the range of five to ten times those of major international cities (like London and Paris) for comparable projects.  Levy points to union work rules and benefits (not so much base pay) as the main reason for the differential.  

Are operations and maintenance in the New York transit system subject to the same level of inefficiency?  Well, consider just the part we can see.  In the world of automobiles, many innovators are approaching the goal of perfecting the self-driving automobile, with all the myriad complexities that that entails.  If automobiles no longer need a driver, surely subway trains do not either.  Yet on every subway train we have not one but two workers operating it -- and a subway train runs on a fixed route that is completely pre-determined from one end to the other.  Is anybody even considering automating this function on the subway?  Not that I have heard of.  Similarly, thousands of subway workers make change in stations for pay plus benefits approaching $100,000 per year on average.  These people seem to be on the way to getting phased out -- in a process that is taking decades.

In today's New York Post, Nicole Gelinas of the Manhattan Institute points out that over the past decade or so the MTA has gotten its hands on several new sources of revenue (dedicated taxes); and essentially all of the money has gone into increased pension and benefits for the work force, with no or minimal improvements in service or maintenance:

So what is the MTA spending its money on?  The biggest culprit in skyrocketing costs is employee benefits.  Consider that in 1985, retirement and health benefits for New York City Transit personnel cost $1.2 billion in today's dollars.  Today, they cost nearly $3.1 billion annually. . . .  This increase in benefit costs alone consumes all the additional revenue that the MTA takes in from the payroll tax the Legislature implemented in 2009.  Should the Legislature enact a new tax, ever-increasing benefits likely will consume that, too.

And as of now, the strategy of getting more money to compensate for failure, and then diverting the money to totally non-productive purposes, continues to work.  The problem is that some day someone will wake up and realize that we can't afford this any more.