Big Brother in the Newsroom (Townhall.com) March 7, 2014Posted by daviddavenport in Op/Eds, Radio Commentaries.
Like a scene right out of George Orwell’s novel 1984, the Federal Communications Commission recently proposed sending Big Brother—well actually a team of government funded researchers—into newsrooms across America to ask questions about bias, news philosophy and the like. After widespread objections, the research has been put on hold, but their initiative strikes a chord of concern.
Perhaps the FCC has forgotten about the First Amendment to the Constitution, protecting free speech and a free press. And the way this works in America is that you have news sources with all kinds of philosophies and points of view competing for the viewing and listening public. The last thing we need is the government hovering over our newsrooms.
Government managing and monitoring the news sounds more like North Korea or Communist China than the United States. At least let’s hope so. Your voice can be heard by at HandsOffMyRadio.com.
Link to Townhall.com audio: http://townhall.com/talkradio/dailycommentary/698316
Obama’s Executive Power Pen Is Already Worn Out (Forbes.com) February 25, 2014Posted by daviddavenport in Op/Eds.
Tags: Public Policy
Much has rightly been made of President Obama’s promise to bypass Congress and act unilaterally to get things done. “I’ve got a pen and I’ve got a phone,” he said, threatening to sign more executive orders and blast more messages from his bully pulpit.
Since then, defenders have argued that Obama has signed relatively few executive orders compared with other modern presidents. But all executive orders are not equal and simply adding them up misses the point. Obama has developed a bold and consistent pattern of unilateral action to set his agenda, advance it and change it, well beyond any reasonable understanding of the Constitution’s separation of powers doctrine.
First, one should note that presidential overreach is not limited to executive orders. For example, President Obama has appointed more czars—officials with power similar to cabinet officers but not requiring Senate confirmation—than any president, somewhere around 38 depending on how you count them. He’s empowered car czars, green job czars, Middle East policy czars and my personal favorite, the Asian carp czar. All these are unelected and unconfirmed senior White House officials with considerable power. And don’t forget those so-called recess appointments that sought to avoid Senate confirmation. The Supreme Court hasn’t, since they are likely to strike them down for having been done when there was obviously no recess.
He has defined his role as commander in chief in a breathtakingly powerful and detailed manner. For example, he committed the United States to war with Libya without Congressional authorization, an action that both allies and critics agree exceeded proper presidential power. He has claimed authority to target individual enemies for death by drone, including some American citizens located overseas. I’m sorry but the last time I checked, the death penalty for U.S. citizens was reserved to the judicial branch.
Similarly, the administration has been active in using waivers and regulations to reshape the law to its liking. Most obvious, though little discussed, the Department of Education has issued so many waivers to states that the No Child Left Behind Act is barely recognizable. The Environmental Protection Agency has launched an attack on the coal industry, unilaterally declaring their carbon emissions pollutants and potentially shutting down hundreds of their plants as part of its campaign against climate change.
But even in the realm of executive orders, Obama has managed to make a significant mark. Executive orders, as their name implies, are for the executive branch to carry out, literally to “execute,” a bill passed into law. They follow on and implement laws passed by Congress. But Obama has changed all of that, instead using executive orders on offense, to trigger a set of policy changes he wants but fears Congress won’t enact. He is not “executing” laws, he is making them.
For example, frustrated by the inability of Congress to pass immigration reform, Obama kicked off his own set of reforms by executive order, halting the legal deportation of thousands of immigrants in the U.S. illegally. Similarly, Obama launched his campaign to increase the minimum wage by unilaterally ordering an increase for all federal contractors. Congress won’t pass gun control? No problem, as Obama signed 23 executive orders on gun control, a couple of recent ones setting up possible confiscation of guns using the Affordable Care Act. That takes some doing.
And speaking of the Affordable Care Act, Obama has found yet another use for executive orders: changing and amending his own laws. For awhile it seemed like every week brought yet another unilateral presidential amendment to Obamacare. Don’t like the mandate on small companies? Fine, we’ll just postpone it. How about the requirements on big companies? Fine, we can ease those too. In all, the president has issued 22 modifications or delays of his signature legislation.
The president seems to think it’s something of a joke, telling visiting French president Francois Hollande recently, “that’s the good thing about being president, I can do anything I want.” But that giant tearing sound you hear is the separation of powers established by the Constitution.
Obama’s Pen and Phone (Townhall.com) February 14, 2014Posted by daviddavenport in Op/Eds, Radio Commentaries.
Much has rightly been made of Obama’s threat to expand executive power to its limits in the remainder of his presidency, his famous State of the Union promise to use his pen and his phone when he can’t get his way in Congress.
But what is left unsaid is that he was already beyond any reasonable use of executive power to start with. From appointing the most unconfirmed executive czars (38 and counting) to deciding which enemies to kill with drones to engaging in war with Libya without Congressional authorization, this is a president who was already on executive power overdrive.
He unilaterally changes the healthcare law, and uses executive orders to initiate new policies such as gun control and immigration..
Watch out, America, but the tearing sound we hear is the separation of powers in our Constitution.
Link to audio on Townhall.com: http://townhall.com/talkradio/dailycommentary/698241
Federal Judges in Utah and Oklahoma Out of Bounds on Same Sex Marriage (Forbes.com) January 25, 2014Posted by daviddavenport in Op/Eds.
Tags: Public Policy, Supreme Court
When the Supreme Court talks, other courts are supposed to listen. But when the Court gives mixed or muddled messages, federal judges are left with room to take the law where they wish. A good example of this is a recent pair of decisions by federal judges in Oklahoma and Utah declaring state bans on same sex marriage to be unconstitutional, outcomes that seem to be at odds with where the Supreme Court left things following its two decisions about same sex marriage announced in June.
In Hollingsworth v. Perry, the Supreme Court heard arguments last year that California’s Proposition 8, declaring that marriage was only between a man and a woman, was unconstitutional. Powerhouse litigators Ted Olson and David Boies brought the case to make that very statement, and federal judge Vaughan Walker of San Francisco conducted an elaborate trial to make a record on which such a decision could be based. But the U.S. Supreme Court declined to make a broad constitutional ruling, instead throwing out the appeal on the narrow ground that no party before the court had standing to defend the law. While the practical effect was to leave Judge Walker’s decision against Proposition 8 in effect, the larger constitutional questions were not addressed by the Court, evidently awaiting another case on a future day.
At the same time last June, the Supreme Court issued its opinion in United States v. Windsor, declaring portions of the federal Defense of Marriage Act (DOMA) unconstitutional because they deprived same sex couples of a federal estate tax exemption available to opposite sex couples. The Constitutional basis for the decision was muddled—part due process, part federalism, part equal protection, but mainly unclear—and the Court specifically said it was not addressing the broader question of the legality of same sex marriage, leaving that to the states. Justice Scalia, in his dissent, predicted that it wouldn’t be long before the states showed up in the Supreme Court pressing that very question.
So it seemed clear that the action on same sex marriage moved to the states and their political processes, either through state legislatures or ballot propositions. Perhaps a lesson had been learned from Roe v. Wade on abortion in the 1970s, where the Court made a rather abrupt pronouncement about abortion rights that has left the matter contentious ever since. Forty years later, the pro-life movement is going strong, reminding us that a court ruling does not make strongly held moral and religious views simply go away. Looking back, even progressives have acknowledged the abortion matter would have been less contentious had the matter been resolved deliberatively through the political processes of each state rather than abruptly for everyone by a court decision.
This seemed to be where the Supreme Court was leaving same sex marriage, to be resolved by the political branches in each state, not by federal courts. Chief Justice Roberts opened his majority opinion in Hollingsworth v. Perry by saying, “The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry.” Roberts continued, in his dissent in the Windsor case, by saying “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their historic and essential authority to decide the marital relation, may continue to utilize the traditional definition of marriage.” Justice Alito in his dissent in Windsor, joined by Justice Thomas, said it was not in the purview of courts to decide between two views of marriage, but that state legislatures clearly must do so. And decide they have: 8 state legislatures have legalized same sex marriage and 3 additional states have done so by popular vote.
So along come two federal judges, one in conservative Utah and the other in conservative Oklahoma, and they declare state state bans on same sex marriage to be unconstitutional. My point is not that the judges did not have the power to do this, or that they did so without careful deliberation. Federal judges famously do more or less whatever they want, so long as it does not directly violate Supreme Court precedents. My point is that the way the Supreme Court left things following its two muddled and unsatisfactory legal opinions in June was to give state political processes—legislatures and ballots—time to work this through. And these two federal judges are out of sync with that allocation of power (federalism) and that more deliberative approach to decision-making. The judge in Utah would not even stay his ruling pending appeal, leaving the legal status of a thousand marriages up in the air.
Too bad that two federal judges can overrule state constitutions passed by their people when the Supreme Court just said, in effect, there is no federal constitutional policy yet about same sex marriage. But then social engineering has long been a temptation that some federal judges cannot resist.
Tags: Healthcare Reform, Supreme Court
Few recall that after the opening 100 days of the New Deal–when Franklin Roosevelt and the Congress ran a prolific two-minute offense passing bills, creating an alphabet soup of new government agencies and spending money in an effort to counter the Great Depression—the U.S. Supreme Court did everyone a big favor by declaring the centerpiece of it all to be unconstitutional. Oh, it didn’t seem like a favor to Roosevelt and his allies when the Court said a key part of the National Industrial Recovery Act was an unconstitutional overreach of federal power. In fact, Roosevelt was so angry about it that he initiated his ill-fated plan to pack the Court with new justices.
But looking back, most historians and economists agree that stopping the NIRA was a very good thing, indeed. Not only was it a vague and excessive delegation of power over private markets to the federal government, but it was bad economic policy to boot. It mistakenly treated falling prices as a cause, not effect, of the economic crisis and tried to address it with cartels to regulate outputs and prices, creating a huge bureaucracy to do so. As Amity Shlaes points out in her book, The Forgotten Man, in a year some 10,000 pages of federal regulations had been created under the NIRA, more than doubling the entire federal canon since the Founding. The bill was developed haphazardly and, by all accounts, it needed to be killed somehow. The Court provided a convenient way out.
Funny, but it sounds like a history that should repeat itself now with Obamacare. You know, the 2000-page bill that House leader Nancy Pelosi said, in classic Washington doublespeak, we had to pass so we could read what’s in it? The bill that has generated so much regulation that Obamacare chief Kathleen Sebelius couldn’t tally it up in testimony last month (turns out it is 10,000 pages, like FDR’s NIRA). The bill that, despite promises you could keep your own policies and doctors, ended up rendering millions of health plans illegal, destroying more health insurance than it created, at least in the early going. A law that has never been popular and grows less so every time it is polled.
My point is that, just as FDR could not see or politically afford to acknowledge the serious problems of the NIRA and received a huge favor when the Court declared it unconstitutional, we are in the same position today with respect to Obamacare. The NIRA at least had bipartisan support, but Obamacare was famously passed on a one-party vote and, rather than taking a surgical approach to fixing problems of healthcare policy, it undertook an extreme makeover (federal takeover) of healthcare. It has been beset by constant problems of implementation. You can hardly get through the website to buy it and, when you do, you find the price is much higher than you expected. So far it has managed to disappoint almost everyone.
The good news is that there are still court challenges out there that could undo it. The most promising challenge started in Oklahoma, but is now being brought in federal courts in 4 states, pointing out that buried in that language Nancy Pelosi and her colleagues did not read was a provision that federal subsidies for healthcare are only available where there are state health exchanges. Since 34 states declined to create their own exchanges, leaving their citizens on the federal exchange, most people would not be eligible for subsidies, which is crucial to Obamacare’s main priority, providing universal coverage. Nor would employers and individuals be subjected to related fines, which is a key part of the financing of Obamacare. The IRS, in a remarkable overreach, attempted to fix this by writing a regulation that ignored the plain wording of the law, all of which is now under court challenge. This seemingly small problem of wording, in fact could not be bigger for the future of Obamacare. As the first challenger, Oklahoma Attorney General Scott Pruitt put it, the Affordable Care Act would “crumble” if this court challenge is upheld.
If you’re old enough to remember the Vietnam war, you’ll recall the legendary, some say mythical, statement by a military officer: “we had to destroy the village in order to save it.” Like Roosevelt’s NIRA, Obama’s ACA may only be rescued if a court stops it cold and cooler, more deliberate heads work much more diligently on the smaller-scale, tailored and blended public/private approaches that could, in fact, improve the healthcare system.
National Radio Commentary on Salem/Townhall: Obamacare Breakdown is a Liberty Moment January 8, 2014Posted by daviddavenport in Op/Eds, Radio Commentaries.
Tags: Healthcare Reform
The breakdown of Obamacare has delivered some powerful messages that should resonate for a long while.
First, big government doesn’t work. It can’t build robust websites, sign up people or deliver on its promises.
Second, we don’t need a complete government takeover of something like health care to meet the needs of the 15 percent or so who wanted health care and couldn’t get it. Small, tailored solutions make more sense.
Third and most important, this is a liberty moment. Millions of Americans are angry because they don’t have the freedom to keep their own policies. The government has taken working policies and declared them illegal.
Conservatives are for liberty and against big government. But to many people—especially young people—those messages have become abstract. Thanks to Obamacare, they are now very real and highly relevant.
Let’s not let the country forget it.
Link to Townhall.com audio: http://townhall.com/talkradio/dailycommentary/695384
Davenport’s & Lloyd’s Book Featured in Pepperdine Magazine January 8, 2014Posted by daviddavenport in Radio Interview Podcasts.
Two scholars and a student explore why looking back helps move public policy forward.
By Gareen Darakjian
In 1933, in the midst of the nation’s most debilitating economic crisis in history, then newly elected president Franklin Delano Roosevelt enacted a series of domestic economic programs that aimed to pull the American people out of the Great Depression. For the next three years Roosevelt’s “New Deal” focused on relief, recovery, and reform— the “3 Rs” that established the framework for today’s U.S. domestic policy and the ongoing debate between progressives and conservatives.
In their new book, The New Deal & Modern American Conservatism: A Defining Rivalry, authors Gordon Lloyd, professor of public policy at the School of Public Policy, and David Davenport, counselor to the director, Research Fellow at the Hoover Institution at Stanford University, and former president of Pepperdine University, revisit the debates between Roosevelt and fellow presidential nominee Herbert Hoover prior to the election and those disputes ignited by the New Deal in 1933.
In a conversation moderated by School of Public Policy student Alexander Klemp, the scholars delve deeper into the legacy of the New Deal and consider how the issues of the era remain current in public policy today.
KLEMP: The book presents a perspective of the New Deal that has not been presented in the past—that issues surrounding the era still exist. Why in your opinion has this perspective been overlooked in history?
LLOYD: A very low-ground, practical answer is that history is written by the winners. Look at the way that Hoover has been demonized. He was a hero, one of the whiz kids of the 1920s, and did an incredible amount of philanthropic work. Because of this one event, he gets dismissed, and along with the dismissal of the person goes the dismissal of the argument. And so, that’s one answer: that people—intellectuals in particular— have accepted the New Deal as a march forward in civilization and progress. And to somehow return to the self-interest of Hoover in American individualism is to return America to a world which fortunately has gone.
KLEMP: The book draws many parallels between the campaign rhetoric of the Roosevelt-Hoover debates and that of the liberals and conservatives in 2012. Can you discuss these parallels?
DAVENPORT: The parallels are very strong, indeed. I think what Roosevelt was arguing for was very much what Obama had argued for in 2012. I think he was concerned that the question was no longer liberty in America, but how government would guide policy to take care of people. For Roosevelt, it meant a lot of government planning, it meant bigger government, it meant more government control; it meant more programs to help people via social security, very much like the Obama narrative of adding health care to the agenda of ways that government protects and takes care of people.
Both Roosevelt and Obama argued that it was the role of government to promote income equality. Both Obama and Roosevelt were advocating for income equality and higher taxation on the rich, so in many ways the 2012 debate was an extension, if you will, of the New Deal and of Roosevelt’s arguments in the ’30s.
KLEMP: There are some people in the media who say that, because the national media is so overbearing and so powerful, national candidates don’t have a chance and that conservatives have been successively losing elections in the national front. What is the power of the media during election time?
LLOYD: I think there are all kinds of fallback positions, that there’s some evil force at work that robbed conservatives of the election, whether it’s the liberals blaming Wall Street and the big bankers and big rollers of campaign, to the conservatives blaming the big media.
But, I think media does matter. FDR won, in part, because he took the debate away from Hoover, because he was much better at the use of the radio. Obama has a way, which I think is much more young-friendly than Romney’s. I think the media matters not because it’s left-wing-dominated, but because media matters in a commercial society. Certainly, I think Reagan had an ability with media that the other folks did not. I’m not going to pay as much attention to who owns the media. Yes, the media is powerful, but I don’t think that’s where the problem is.
KLEMP: The book suggests that modern-day politicians must take historical cues from the New Deal era to be a viable part of the current national conversation. Can you discuss how and why you believe this to be true?
DAVENPORT What we were trying to point out in the book is that, in fact, there has now been sort of an 80-year- long paradigm for American domestic, economic, and tax policy. That is the New Deal on one side and modern American conservatism on the other. This, I think, is not widely recognized: that we still basically live in the New Deal and that conservatives are still responding to modern-day expansions of the New Deal. That’s point one: just to recognize the phase that we’re in. And to go back and recover the arguments at the creation of this paradigm, when Roosevelt obviously was developing the New Deal and Hoover was giving the first shocked conservative response, that’s a really fundamental time in any sort of development: to go back and see how those arguments went.
We do think that even conservatives today have gotten caught up in big government in some ways. They, themselves, have succumbed to big government and have lost some of the liberty argument and some of the federalism and constitutional argument of those early days. Our point is that individual liberty should still resonate with the American people. It has become a bit of an abstraction, but conservatives need to make it real again. We think going back, historically, to come back to today’s policy makes a lot of sense and I think those are the key points we were trying to make with this book.
Link to Pepperdine Magazine Article: http://magazine.pepperdine.edu/index.php/2013/12/a-bit-of-history-repeating/
Davenport on C-Span 2 Book Talk Dec. 28-Jan. 2 December 28, 2013Posted by daviddavenport in Speeches, Television.
“The New Deal and Modern American Conservatism: A Defining Rivalry”
About the Program
David Davenport, counselor to the director and research fellow at the Hoover Institution, argues that the debate over the New Deal in the 1930s laid the ground work for today’s conservative movement. Mr. Davenport spoke at the Capitol Visitors Center in Washington, D.C.
- Saturday, December 28th at 8:15pm (ET)
- Tuesday, December 31st at 11:30am (ET)
- Wednesday, January 1st at 2:15pm (ET)
- Thursday, January 2nd at 1:15am (ET)
About the Authors
Will The U.S. Supreme Court Protect The First Amendment Rights Of Colorado Bakeries? (Forbes.com) December 20, 2013Posted by daviddavenport in Op/Eds.
Tags: Constitution, Department of Justice, Supreme Court
My dad ran a small bakery and I spent thousands of hours working there, baking, selling, delivering, sometimes even decorating cakes and other pastries. To him, the work was not just professional, but also personal: he knew most of his customers who came from our church, school, and neighborhood to shop. His front door was open to customers, but his back door welcomed friends for a cup of coffee, a donut and a chat while he worked. As a Christian, his work was also part of his ministry—he exercised his values there and helped a lot of people.
So I took more than a passing interest when a judge in Colorado recently ruled that a retail bakery had violated the law for refusing to decorate a cake for a same sex wedding celebration. Though my dad and the family bakery are long since gone, I could imagine him struggling with whether he could place two grooms on top of a wedding cake. As the Colorado baker argued in court, a cake decorator’s work is creative expression. When you take the cake to the church or party and set it up, you are in some sense a participant in the process. All this was a problem for the baker, whose religious convictions do not allow him to support same sex marriage.
But Colorado administrative law judge Robert Spencer said no, a bakery is a public accommodation, defined rather broadly in Colorado as any business that sells to the public. And, as such, a cake decorator cannot discriminate based upon sexual orientation. Even the fact that same sex marriage is illegal in Colorado did not cut the baker any slack. Next time he either decorates that cake, faces fines or jail, or closes the business, as the owner of a bakery in Oregon did in a similar situation a few months ago.
Although some have argued that this is a small matter—“let them eat cake”—it is part of an important and growing clash between one person’s First Amendment rights to freedom of religion and speech and another’s civil and social rights. With same sex marriage now legal in 16 states and still counting, that arena alone will generate increased conflict of this kind. For example, a wedding photographer in New Mexico who refused to serve a same-sex commitment ceremony on similar free speech and free exercise of religion grounds was held in violation of that state’s anti-discrimination laws and is appealing the case to the U.S. Supreme Court.
It’s not just about businesses and their customers, either. Hobby Lobby will be in the U.S. Supreme Court this term because the Affordable Healthcare Act requires them to provide contraceptive coverage to employees in violation of its owners’ religious principles. Indeed there are now over 80 of these lawsuits, and the D.C. Circuit Court of Appeals recently ruled that business owners do not give up their First Amendment rights merely because they choose to operate in a corporate form.
These are tough cases in part because both sides want an all-out win, not a compromise. Advocates for contraceptive coverage and same sex marriage argue that these are fundamental, constitutional protections that must be defended, essentially at all costs. Progressives and social activists see the contraceptive rights of Obamacare and same sex marriage as the new civil rights struggles and are unwilling to compromise. On the other side are those seeking to protect freedom of religion, which they believe to be under steady assault in society and especially in the courts. Some conservative Christians foresee the day when merely reading certain passages of scripture from the Bible, even in a church pulpit, will be considered “hate speech” under the law.
But in the end, there will need to be a solution in which the rights of both are recognized and they are able to live together in the same society. Will this be accomplished by balancing out the rights, one against the other? Should people in the expressive business—photographers or maybe bakers—have stronger rights than garden-variety businesses? Should public accommodation businesses be more narrowly defined than “anyone who sells to the public?” Or will one side win and the other lose? These are tough questions the U.S. Supreme Court will face in 2014.
It’s no coincidence that, even as Tea Party and Republican Party leaders battle over the nature of conservatism in the Age of Obama, three new books debate the origin of modern American conservatism. The old conventional wisdom–that modern American conservatism was born in the 1950′s with Russell Kirk, William F. Buckley and National Review–is giving way to the notion that we must reach further back into our history. The question is how far back: to Herbert Hoover and the New Deal in the 1930′s, or to Calvin Coolidge in the 1920′s? Our conclusion is that the Tea Party is stuck in the less relevant era of Coolidge, whereas the real heart of modern American conservatism is located in the New Deal and Herbert Hoover’s penetrating critique of it.
Amity Shlaes’ interesting book, Coolidge, revived a “Coolidge is cool” movement among conservatives. Ronald Reagan may have started the revival when he replaced Harry Truman’s portrait with one of Coolidge in the Cabinet Room. Michele Bachmann reflected a Tea Party sensibility about Coolidge when she proposed adding his visage to Mount Rushmore. What conservatives like about Coolidge, whom they see as the last of the non-progressive presidents, is his personal and political sense of self-restraint: Shlaes refers to him as “the great refrainer.” They also like his tax-cutting and expense-reducing policies that accompanied the robust economic growth of the roaring 20′s.
Two other new books place the origin of modern American conservatism in the 1930′s with the New Deal and Herbert Hoover’s prophetic attack on its excesses. Indeed, we argue in The New Deal and Modern American Conservatism: A Defining Rivalry that, just as Edmund Burke defined modern conservatism in his response to the French Revolution, the New Deal is our French Revolution and Herbert Hoover is the early prophet speaking against it. The New Deal is still the paradigm for American domestic and economic policy today, 80 years later and going strong. And the arguments Hoover made about the growth of government, its role in central planning, and the corresponding loss of personal liberty all ring true today. Indeed, Hoover’s chief biographer, George Nash, has recently found Hoover’s “lost” manuscript about his fruitful post-presidency called “The Crusade Years” which will be released shortly and confirms this thesis.
Modern American conservatism is fundamentally a response to the New Deal. And conservatives should continue in the spirit of Hoover’s critique to crusade against it. When President Obama campaigns for income equality, he seeks to extend Franklin Roosevelt’s battle for increased taxation of the rich. When Democrats pass Obamacare, they are adding to the entitlement network begun by Roosevelt. When government grows to peace-time highs in regulation and spending, and takes over more aspects of our lives, it builds on the New Deal.
Oliver Holmes said he would not give a fig for the simplicity on this side of complexity, but would give his life for the simplicity on the other side of complexity. While Coolidge’s self-restraint was admirable, and a tempting model for Tea Party simplicity, conservatism must deal with the complexities of today’s New Deal-style government. For this project, Herbert Hoover has pointed the way.