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The Definitive Guide to Washington Policy-Making: The Next Two Years Are About Election 2016 (Forbes.com) November 20, 2014

Posted by daviddavenport in Op/Eds.
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Even though the words policy and politics sound a lot alike and share a Greek origin, in practice they are usually quite different.  Running for office is not the same as governing.  E.J. Dionne argues in his classic book Why Americans Hate Politics that this very difference is a key part of voters’ frustration.  Candidates come out of their seats in government every two or four years, make a lot of loud campaign arguments and promises, and then return to office doing nothing about anything they campaigned on.

That will be especially true following election 2014, a series of races that were really not about policy, but about President Obama’s loss of popular support for being inept and aloof.  It was political punishment over performance, not policy.  So Republicans really have no policy mandate, except not to be Obama.  And it would be difficult for the Republican House and Senate to lead out on policy anyway since President Obama lurks in the White House with his veto pen.  I think Senator Mitch McConnell had it wrong when he said the election would eliminate gridlock—it will simply relocate it from the Congress to the President’s desk.  Republicans can pass bills and Obama can stop them.

This also does not feel like the 90’s when Bill Clinton was willing to play bipartisan small-ball with the Congress and get some things done.  No one thinks Mr. Executive Order on immigration and Mr. Veto on healthcare repeal and reform is disposed to do that, nor do Republicans believe they were promoted to the big leagues to play small ball.  So rule out that policy scenario.

What we’re left with, I’m afraid, is Election 2016 as the North Star for policy-making on both sides for the next two years.  Obama will choose his few policy priorities based on what will rebuild the Democrats’ coalition for 2016.  Hence he begins with executive orders on immigration, a strong “in your face” move that very few believe makes for good policy, but reenergizes the Latino coalition Democrats badly need to win in 2016.  And it will be difficult for Republicans to stop him without seeming to overplay their hand—shutting down the government and the like.  Ugly stuff, but it’s coming.

I believe Obama’s other policy priority, again for political reasons, is the environment and climate change.  A relatively recent article of political faith among Democrats is that the American people are genuinely concerned about climate change and Republicans can be marginalized as climate-deniers and anti-science.  And again, this is an area where the President can act without the Congress, as he recently demonstrated in his negotiation with China.  He can give aid to other countries for this and issue more executive orders.

Despite winning the election, the Republican policy options are also relatively few.  Their top priority would be to repeal Obamacare, but even Senator McConnell acknowledged that they don’t have the votes (60 to overcome a veto).  May they can nip around the edges, get Democrats to agree to eliminate the excise tax on medical devices (since many of the medical device companies are in states with Democratic senators), or maybe eliminate or change the too-powerful board (IPAB).

Doing something on national security would be smart, since that’s the one issue on which normally fractious Republicans can agree.  Since the President is the Commander in Chief, this isn’t an easy assignment for Congress, but they could try to reduce the sequester defense cuts.  Maybe there’s room for some bipartisan agreement on trade or corporate tax reform, but I’m afraid that’s about it.

Politically what Republicans really need to do for 2016 is demonstrate that they can govern, not just oppose the President.  So, even if vetoed, a legislative agenda of tax and spending cuts, market-based energy initiatives (including Keystone), a more robust defense budget—all these things could tell the country that if you only gave us a Republican president in 2016, we know what to do.

And let’s not forget policy in the states.  Perhaps you haven’t examined the math lately, but during Obama’s term, Republican governors have grown from 21-31, state legislative chambers under GOP control from 36-69, with Republicans having total control of state governments in 24 states compared with the Democrats’ 7.  With lots of presidential candidates in governors’ mansions (Christie, Walker, Jindal, Martinez for vice president), there is incentive to demonstrate policy success.

I’m sorry to tell you that, having just finished one campaign on the airwaves and at the election booth, the next one begins now in the halls of power in Washington, D.C.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/11/19/the-definitive-guide-to-washington-policy-making-the-next-two-years-are-about-election-2016/

Will The Mid-Term Elections Make Any Policy Difference? (Forbes.com) November 3, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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As a Californian in a state so tilted in one political direction that few bother to run ads here, I am spared what a friend from Wisconsin, a major battleground state, describes as an endless barrage of political ads and messages this year.  It will soon be over, but will it have made any difference?  Will the politics of the 2014 mid-term elections bring about any major changes in the policies that govern us?  Sadly, I tend to think it will ultimately be much ado about relatively little.

Even if Republicans make gains in the House and establish a slight majority in the Senate, the election will largely shift government gridlock, rather than end it.  Instead of Congress doing virtually nothing, as has been the case this year, Congress will begin passing bills again, only to see them land with a thud on the President’s desk.  Senate Majority Leader Mitch McConnell said over the weekend that “a new Republican majority…would mean we’d be able to bring the current legislative gridlock to a merciful end.”  But that assumes that Congress will pass bills that the President would want to sign; otherwise, they die in the Oval Office.

So the real question is this:  what are the chances that a Republican Congress and a Democrat President could find significant areas of agreement in Obama’s final two years?  It is certainly possible that President Obama will take a page from Fleetwood Mac and “go [his] own way.”  He consistently says he wants to be a consequential president, which suggests that playing small ball with Republicans is not a likely scenario.  And he’s already signaled plans to tackle one of the big policy issues, immigration, by executive order, hardly a collaborative approach.  So one very realistic prospect is that Obama will not find collaborating with Republicans on policy changes to suit his political or historic agenda and we will face more executive orders and gridlock.

But what might a Republican Congress and a Democratic President do together if they were so inclined?  I suppose they could tackle immigration, for example.  The President says he wants a comprehensive plan and Republicans want to do piecemeal reform, but let’s assume they could get past that.  The difficulty with immigration reform is that everyone wants to do what they find important first.  Republicans want to strengthen border security first.  Business leaders want to improve legal immigration for workers first.  Liberals want to deal with children and others who are already here first.  That’s where immigration reform is stuck—no one trusts the other parties to get to their issue unless theirs is first in line.  I think that will be harder to resolve than one might think.

Healthcare, the other big domestic policy priority, seems even less likely to produce agreement between Congress and the President. The Republican House has voted 54 times to repeal or tweak Obamacare, but obviously the President won’t be signing anything of that sort.  Even Mitch McConnell acknowledged to Fox News’ Neil Cavuto that major changes to Obamacare “would take a Presidential signature.  No one thinks we’re going to get that.”

How about foreign policy?  Unfortunately for a new Republican majority in Congress, this is an area where the President leads, not the Congress.  Congress could try to end the sequester cuts in defense spending, as one measure, but the White House has taken the view that non-defense cuts should also be addressed, so it’s hard to see the President going along with Republicans here either.

If I had to bet, I would see President Obama spending his final two years in the following way, no matter who wins on Tuesday:  appointing lots of federal judges, raising a lot of money for the 2016 elections, making political appointments and providing pardons, delivering speeches, and issuing executive orders.  If true, that means we will see little change in policy from all the politics of 2014, and merely a shift in gridlock from the halls of Congress to the President’s desk.  All Republicans probably gain is a better platform for their ideas.  In the end, the politics of 2014 may be little more than foreshadowing and repositioning for the politics of 2016.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/11/03/will-the-mid-term-elections-make-any-policy-difference/

Houston, We’ve Got a First Amendment Problem October 15, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It was disclosed this week that attorneys for the city of Houston, Texas have subpoenaed sermons and other writings from local ministers who are opposed to the new Houston Equal Rights Ordinance (HERO) championed by its mayor. This would seem to be such an obvious violation of the First Amendment free speech and freedom of religion of pastors that one wonders how lawyers and judges, who presumably studied constitutional law, could have allowed it to get this far.

Annise Parker, the first openly gay mayor of Houston, has made HERO, which extends equal rights protections to gay and transgender residents, a central plank of her leadership platform. A number of Houston pastors have joined a drive to repeal the new ordinance, collecting over 50,000 signatures, with only 17,259 required, to place the matter on the ballot.  The Mayor and City Attorney have disallowed most of the petitions on various legal grounds, and that matter is now in court.

As part of the court action, the city thinks it should review sermons and writings of these ministers, apparently concerned whether they are engaged in politics and electioneering from their pulpits in violation of the churches’ tax exempt status. Before we even get to the First Amendment, however, such tax exemptions are a matter of federal and state law, not municipal authority, so Houston has no business even pursuing that question.  Strike one.

To say that these subpoenas are overly broad would be quite an understatement. The question raised by the lawsuit is whether the petitions collected sufficient legal signatures to support a ballot measure to repeal it.  The arguments pertain to the documentation and form of the signatures, with the city claiming that all but 15,249 of them are legally flawed.  This has nothing to do with what any pastor said or wrote.  So again, even before we reach the First Amendment questions, these subpoenas take strike two.

But most outrageous of all is the obvious violation of the First Amendment. Churches and pastors are specifically protected in their speech and religious practice under the First Amendment.  The only legitimate legal challenge would have to come from the IRS (which has its own conservative witch-hunt reputation to live down) or state taxing authorities.  The latitude given to any Constitutionally-guaranteed rights such as those under the First Amendment is broad indeed, and it would take a lengthy and elaborate case to conclude the pastors overstepped their bounds.  A court-issued subpoena over a repeal election is hardly the right legal setting for this.  Strike three.

The chilling effect on ministers is precisely what the city and its mayor seek, of course, and this they cannot do. This is legal intimidation, pure and simple.  Politicians are not free to outlaw or make legal threats over speech they do not like, or think is politically incorrect, in the face of the First Amendment.

Our society is undergoing a major social transformation in the area of same sex rights. Groups and individuals are working these things out at astonishing speed.  In just the last week, the U.S. Supreme Court surprised everyone by letting some lower court same sex marriage decisions stand without further review, implying either conflict in the Court itself or that this is truly a matter for states and circuits to work out.  The Catholic bishops shocked everyone this week by rethinking the role of gays in the Church and the contributions they make.  To paraphrase a rapper of an earlier time, this is how we do it in a democracy.

Unfortunately the Mayor of Houston thinks it’s her role to work it out for everyone in her city, and to use unconstitutional intimidation if necessary to achieve those ends. In the name of the First Amendment, someone needs to stop her.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/10/15/houston-weve-got-a-first-amendment-problem/

War Crimes in Gaza: Why Isn’t the International Criminal Court Part of the Solution? (Forbes.com) October 13, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Twelve years and $1 billion ago, a new International Criminal Court was born. Its stated goal was to prosecute war crimes, genocide and crimes against humanity so that rulers could not continue to commit these acts with impunity.  One naturally asks, then, why such crimes continue unabated, why after more than a decade and $1 billion of expenditures the Court has only managed to convict two Congolese warlords.

The answer is that partly limited by design, and flawed in its execution, the ICC has not turned out to be an effective weapon against such criminal acts. The Court’s arrest warrant for Al Bashir of Sudan is ignored.  Crimes against humanity in Egypt are not actionable because that country is not a member of the Court.  On we go, until we reach the conclusion that the ICC is yet one more international institution that has overpromised, overspent and under delivered.

One of the trickiest venues for the ICC has been in Gaza, where terrorist attacks and military responses break out with regularity. After Operation Cast Lead in 2008-09, the Palestinian National Authority sought to submit possible war crimes and crimes against humanity by Israeli forces to the Court.  The Prosecutor correctly responded that since Israel was not a party to the Court and Palestine was not a state, he could not accept the case.  Under political pressure from the Court’s constituencies, he subsequently reconsidered, spending nearly three years to reach the same conclusion.

With the recent violence in Gaza, many expect the Palestinians to submit a new case to the ICC, arguing that a United Nations General Assembly vote in 2012 making Palestine a nonmember observer state changes the question of ICC jurisdiction. In fact, the new Prosecutor of the Court, Fatou Bensouda, recently asserted that this vote makes it possible for Palestine to accede to the Court’s statute and jurisdiction.   To which I would respond:  not so fast!

Statehood is a highly complex matter that is not necessarily resolved by a U.N. General Assembly vote. International law establishes several objective tests for statehood, with the generally accepted criteria including (1) a permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other states.  (Montevideo Convention on the Rights and Duties of States, 1933).  Essentially all those questions are still open in the case of Palestine.  And if Palestine does not meet the required criteria, it is not a state, no matter what the General Assembly might say.  These votes in the U.N., in case you haven’t noticed, tend to be more in the nature of pep rallies than legal assessments.  Israeli diplomat Abba Eban once said, “If Algeria introduced a resolution declaring that the earth was flat and that Israel had flattened it, it would pass by a vote of 164 to 13 with 26 abstentions.”  The actual vote to make Palestine a nonmember observer state was 138-9 with 41 abstentions. This was a practical and political vote—should Palestine join the Vatican as an observer– not a legal one.

While we’re being practical, Palestine would have a lot to lose by bringing the ICC into Gaza, since it would be vulnerable to prosecution right along with Israel. And, on the political side, the U.N. Security Council—which has declined to make Palestine a state—could vote to stop the ICC from bringing a case if it chose to do so, a distinct possibility given the sensitive nature of all the Middle East negotiations.

Seeking recognition, along with the Holy See, as a nonmember observer state was one of several steps Palestine has taken in recent years to strengthen its case for statehood. But I disagree with the Prosecutor of the International Criminal Court that this is the last word on Palestinian statehood, even for admission to the ICC itself.  That should come, if it does, by the hard work of further negotiations, not a mere vote in the U.N. General Assembly.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/10/13/war-crimes-in-gaza-why-isnt-the-international-criminal-court-part-of-the-solution/

Liberal vs. Conservative Parenting (National Radio Commentary / Salem-Townhall.com) October 8, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Can you guess the one key difference in how liberal and conservative parents raise their children?  Actually, you don’t have to guess, a recent survey by the Pew Foundation tells us.

Despite significant similarity in what conservative and liberal parents try to teach their children—being responsible, well mannered, hard-working and the like—the striking difference is liberal parents’ strong emphasis on “tolerance” versus conservative parents emphasizing religious values.  Liberal parents value the teaching of tolerance 3 or 4 times more than conservative parents, whereas conservatives value the teaching of religious values two to one over liberal parents.

It would appear that liberal parents are prevailing, with studies showing young people less committed to absolute truth.  The Founders held that to maintain a free republic, a virtuous people was needed, which in turn depended on religion.  Time will tell whether or not the virtue and responsibility needed to undergird freedom can be maintained where tolerance is upheld as a higher virtue than religious notions of truth. 

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699167

Can Republicans Lose Kansas? (National Radio Commentary / Salem-Townhall.com) September 25, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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With Republicans needing a net gain of 6 seats in the U.S. Senate to take control, they can’t afford to lose seats they now hold.  But, in Kansas, as red a state as they come, 3-term Republican Pat Roberts could very well lose his seat to an independent. How could this happen in a state that has elected only Republicans since the 1930’s?

Unfortunately Senator Roberts has come to be viewed as a creature of Washington, which doesn’t sit well in the Sunflower State. He now lives in Virginia and his only residence in Kansas is a rented room in the home of one of his donors, a foolish mistake by Roberts.

Also, the Kansas Republican Party has become more conservative, if possible, than the State as a whole.  With strong opposition to both Senator Roberts’ and Governor Brownback’s reelection, it’s akin to the rejection of the Tea Party elsewhere.

Conservative Kansas could provide a shocker on Election Day, preventing Republicans from controlling the U.S. Senate. 

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699104

 

 

Congress and War On ISIS: “Just Bomb the Place and Tell Us About It Later” (Forbes.com) September 22, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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To be fair, the constitutional questions surrounding U.S. military action against ISIS are not easy.  But those wanting Congress to play a larger role in declaring wars, and not simply defer to the Commander in Chief, have a right to be disappointed when Congress, in effect, gave itself a pass and left town early to go home and campaign.  As Congressman Jack Kingston (R-GA) frankly admitted:  “A lot of people would like to stay on the sideline and say, ‘Just bomb the place and tell us about it later.’ It’s an election year.”

What Congress did was authorize the arming and training of local forces in Syria, passed by both houses with some bipartisan support.  What Congress could and should have done was debate the larger question of authorizing U.S. military action against ISIS.  But Congress declined to address that larger question, not wanting to take a tough stand just before the November elections.  There were hints this would be debated after the elections, but I have my doubts it will happen then either.

Congress can’t have it both ways.  It wants to attack—even bringing an unprecedented lawsuit against the President–presidential abuses of power, but when presented with an opportunity to act, it takes a powder.  At some point we have to acknowledge that the excessive growth in executive power is not attributable solely to power-seeking presidents, but also to a weak-kneed congress.  As Ronald Reagan put it, you wonder what the Ten Commandments might look like if they’d had to go through congress.

The power to make war is one of many big questions for which the Founders built checks and balances into our Constitution.  In this case, the power to declare war resides with congress (Article I, Section 8).  But the president is the “Commander in Chief” of the military (Article II, Section 2). Most seem to agree that the president has the authority to defend the country from imminent danger of a direct attack, but even the President admits that ISIL has not presented any immediate danger to the homeland.  Beyond that, Congress should have to vote to declare war, rather than allow the President to “destroy” ISIS unilaterally, as he proposed to do in his recent speech to the nation.  Obama said he “would welcome congressional support” but stopped far short of proposing a resolution seeking it, or feeling he was bound to pursue it.

The White House now claims that the president already has this authority under the 2001 Authorization for the Use of Military Force (AUMF) passed in the aftermath of 9/11.  Unfortunately for the White House, this approval extended to nations and organizations that “planned, authorized, committed or aided” the 9/11 attacks.  The Islamic State did not exist in 2001 and even Al Qaeda has explicitly denied any relationship with ISIS.  It would be unthinkable that any member of Congress who voted for that resolution 13 years ago in the wake of 9/11 considered their vote an authorization of military action against a new and unrelated terrorist organization today.

The President’s unilateral decision to move ahead with military action to destroy ISIS has brought about a remarkable agreement between liberal Democrats and conservative Republicans that the Constitution requires Congressional authorization.  Senator Rand Paul tweeted, “The Constitution is very clear.  The power to declare war resides in Congress.”  And Senator Tim Kaine, one of the president’s allies, said, “I disagree with the president’s assertion that he has all necessary legal authority to wage an offensive war against ISIL without Congressional approval.”  In July 100 House Democrats and Republicans sent a letter to the White House insisting he come to Congress before taking military action against ISIS, a letter that evidently went in the round file.

It’s time for Congress to put on its big boy-big girl pants and take up a resolution for (or against) the authorization of military force.  This is a far more responsible approach than suing the President, or leaving town early to campaign.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/09/22/congress-and-war-on-isis-just-bomb-the-place-and-tell-us-about-it-later-3/

 

 

Cash for Clunkers Clunked (National Radio Commentary /Salem-Townhall.com) September 15, 2014

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You may recall the famous Cash for Clunkers program in 2009 that attempted to stimulate the economy by giving government rebates to people who bought used cars.  The program cost taxpayers $3 billion and was widely criticized for merely accelerating decisions to buy cars, rather than producing additional sales.

Turns out it’s even worse than we thought:  A recent study by economists at Texas A&M concluded that the program actually cost dealers $3 billion in lost revenue because the law’s fuel-efficiency requirement caused people to buy cheaper cars than they would have. 

The lesson Washington should have learned by now is that government interventions into the market economy don’t work.  And, in this case, they violated the first rule of medicine:  do no harm.  Government must resist the temptation to simply “do something” and limit itself to playing government’s most important role in the economy:  provide solid, dependable rates and policies that people can rely on. 

Link to Townhall.com audio:  http://ht.salemweb.net/townhall/audio/mp3/131d0c23-cde5-4d9e-9118-23c6e75b8c67.mp3

 

Legal Cases Are Blowing Up the NCAA Big Business Model — Why It Matters (Forbes.com) August 11, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Venerable Kansas State football coach Bill Snyder voiced the concerns of a lot of people when he said recently that college athletics has “sold out” to “dollars and cents.”  “It’s no longer about education,” Snyder continued, but we have reached the point where schools build athletic palaces, coaches make millions and games are broadcast every night, all in the pursuit of “glitz, glitter” and gold.

But even more powerful than the reflections of a well-respected coach is the opinion of a federal judge rendered Friday that the big money generated when the NCAA and its member schools sell the images of their own athletes for television and videogames, but do not share any of the revenue with the student-athletes themselves, violates the U.S. antitrust laws.  This, along with the opinion earlier this summer of a National Relations Hearing Board officer that Northwestern University’s football players are university employees who may unionize, stands to blow up the NCAA business model and revolutionize college sports.

In the closely watched case of O’Bannon v. NCAA, a federal district court in Northern California considered the class action claim brought by 20 current and former Division I football and basketball players that the NCAA ban on their receiving any revenue from the use of their images and names on television and in videogames violated the antitrust laws.  In a sense, any sports league or athletic conference creates restraints on trade by their rules and policies, but reasonable rules that allow leagues or sports to operate have generally been found by courts to help, not hurt, competition.  But just because a league or sports association joining together is not per se illegal, they may not enforce any rule or regulation they want.  Each individual rule must be reasonable and generate more benefit to competition than harm under the law.

The NCAA defended its refusal to show athletes the money on several grounds:  that it would harm the tradition of amateurism, hurt competitive balance among teams, diminish the integration of academics and athletics, and decrease the total output of its product.  But federal judge Claudia Wilken, using the testimony of economists and other experts, batted down each of those arguments in her 99-page opinion.   She found the NCAA’s commitment to amateurism to be uneven at best, pointing out that a tennis player may earn $10,000 in prize money the year before college without losing amateur status whereas a track and field athlete may not.  Similarly, she found little competitive balance among teams, noting the NCAA itself awards far more revenue to big schools than small.  And so it went.

Further, as Judge Wilken pointed out, if there is a less restrictive alternative that will allow the NCAA to achieve its purposes but cause less harm to the athletes, the NCAA rule will fall.  In this case, she found two less restrictive alternatives:  colleges paying athletes the full cost of attendance (not just the grant-in-aid) and colleges placing commercially-generated revenue in trust for athletes until they leave college or lose their eligibility.  In the end, the court held that the NCAA ban on revenue for athletes when their names or likenesses were used commercially amounted to illegal price fixing in restraint of trade and were enjoined.  The NCAA has already said it would appeal the case.

One of my law professors used to say, “bears win, bulls win, only pigs lose.”  And that’s the message of this case, as well as the earlier unionization case.  The NCAA simply went too far in making money and regulating the lives of college athletes without sharing the wealth and power.  In a sense, these cases constitute a recognition by the law of something most people have known for a long time—college sports is too little about student-athletes and too much about money and power.  Finally, in the wake of these two monumental legal opinions, a tipping point has been reached, and the NCAA will be forced to reevaluate how it deals with student-athletes if it wants to survive.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/08/11/legal-cases-are-blowing-up-the-ncaa-big-business-model-why-it-matters/

Why Obamacare Is Still On The Legal Ropes After 4 Years (Forbes.com) August 4, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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The Affordable Care Act (ACA) is nearly 4.5 years old, yet it seems to have spent most of its life in one courtroom after another with its legal viability still hanging in the balance.  In a report issued last summer, the National Health Law Program had tracked 89 federal court challenges to the ACA.  And the recent decision by the federal D.C. Circuit Court of Appeals that subsidies under the law are only available in those few states that have developed their own health exchanges poses the greatest legal threat yet.  With two federal circuits reaching two different conclusions on that question, the ACA seems inevitably headed to the U.S. Supreme Court once again.

Some see Obamacare constantly brought before judges and find politics and judicial activism.  You may recall that President Obama himself jumped on that bandwagon prematurely, saying in 2012 that the U.S. Supreme Court finding the Act unconstitutional would be an “unelected group of people” turning to “judicial activism or a lack of judicial restraint.”  Ironically, in the view of many, Chief Justice Roberts ended up employing judicial activism, by reinventing a penalty into a tax, in order to rescue Obamacare on that occasion.  Columnist E.J. Dionne recently joined the chorus, calling the D.C. Circuit Court of Appeal decision on subsidies “extreme judicial activism.”  Of course one definition of judicial activism is quite simply a court decision with which you disagree, so all this hand-wringing must be taken with a healthy dose of salt.

In fact, I would submit that there are two very good reasons why Obamacare is still fighting for its life in the courts:  (1) It constitutes a complex and sweeping reform of one of our largest and most important social and business systems and, as such, (2) it was not enacted with sufficient care, debate and legal craftsmanship.

Obamacare is widely seen as the most sweeping social program since Medicare in the 1960s and Social Security in the 1930s.  As such, it also creates one of the largest government bureaucracies—at both the federal and state levels—seen in decades.  So, naturally, this was all done with great care, debate, compromise, amendment, and drafting over time, right?  We all know better.  One version of the bill ran over 2400 pages (the final weighs in at a mere 906 pages), leading to House Speaker Nancy Pelosi’s  clarion call in Washington-speak:  “But we have to pass the bill so that you can find out what is in it.”  And when this biggest and most important social legislation was finally passed, it was jammed through on a party-line vote, with no Republican support.

When Congress passes and the President signs a bill into law, most Americans fail to recognize that the legal work is only beginning.  Various agencies must then develop regulations and government structures to implement the law.  So far we have something over 10,000 pages (in very tiny type) of such regulation.  And then President Obama himself, through executive orders, has been unilaterally changing and delaying aspects of the law right along, arguing that more time is needed to draft and develop the implementing regulations and systems.

Is it any wonder, then, that Congress left a lot of clean up, and even correction of errors, now taken up in the courts?  As the old car repair commercial used to say, “you can pay me now (preventive maintenance) or you can pay me later (more expensive repairs).” If Congress had wanted to spend the time and bipartisan effort to get things right from the start, perhaps many of these questions would not have ended up in court.  Is it a tax or is it a penalty, for example?  In the end, Justice Roberts felt he had to rewrite the law to make that clear.  If Congress didn’t intend the subsidies to be limited to states that created their own exchanges, couldn’t that have been debated and clarified in a congressional committee, rather than in various federal district and circuit courts?

Unfortunately the most sweeping social legislation in 50 years is now getting the care and debate in courts that it should have received, but did not, in Congress.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/08/04/why-obamacare-is-still-on-the-legal-ropes-after-4-years-2/

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