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Why Has Chief Justice Roberts Moved From Umpiring To Batting On Healthcare? (Forbes.com) June 26, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Could someone please remind Chief Justice John Roberts of his opening statement to the Senate Judiciary Committee in his confirmation hearings in 2005?  That’s when he described his all-important judicial philosophy by saying:  “Judges are like umpires.  Umpires don’t make the rules; they apply them…I will remember that it’s my job to call balls and strikes and not to pitch or bat.”  I ask because his majority opinion in the King v. Burwell case this week is the second time he has rewritten the Affordable Care Act (ACA) in order to save it, moving out of the umpire’s stance directly into the batter’s box.

In King v. Burwell, the Court needed to decide whether the phrase “an Exchange established by the State” meant just state or could include federal exchanges.  Justice Roberts, writing for a 6-3 majority of the Court, found the language was ambiguous, which permitted the Court to look more widely at the purpose of the law and decide its purposes would not be accomplished if state didn’t also mean federal.  In his sharp dissent, Justice Scalia said, “Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

The general view around Congress had been that the language had simply been a mistake.  Indeed, the Court acknowledged that the ACA “contains more than a few examples of inartful drafting.”  The Court cited a few reasons for this, including debates behind closed doors and the use of a “reconciliation” legislative procedure that limited debate and amendments.  I could add a couple more:  passing a huge overhaul of a major system like healthcare without sufficient care (Nancy Pelosi’s famous, “but we have to pass the bill to find out what’s in it”) and slamming it through on a straight party line vote.  As the old car repair commercial used to say, you can pay me now (preventive maintenance, getting it right) or you can pay me later (repairs) and this law has been paying later.

But Roberts apparently does not want the ACA to pay too much for its repairs by returning it to Congress to get it right.  So twice now, he has essentially rewritten the bill to fix it himself.  In the first case, the Court having found that Congress lacked power to pass the ACA under its commerce clause power, Roberts reinvented its basis as a bill valid under the taxing power.  This time, he reinvented State Exchange (capital letters) to mean state and federal.

It is not the role of the Court to fix another branch’s mistakes.  So why is Roberts willing to do this?  I believe it is a misguided calculation that he has to engage in a little judicial activism in repairing the law in order to avoid a perception of even greater judicial activism by invalidating the law.  He seems to be so concerned about lowering the volume on controversial Supreme Court decisions that he is willing to be a judicial activist in order to protect the Court’s reputation against charges of judicial activism.  It makes no sense, in the same way that the officer who said “We had to burn down this village in order to save it” made no sense in Vietnam.

John Roberts turns out to be another disappointing judicial appointment for conservatives, moving strike zones, saying words have no obvious meaning, and rewriting the law to fix Congressional errors.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/25/why-has-chief-justice-roberts-moved-from-umpiring-to-batting-on-healthcare/

The Supreme Court Removes One Raisin Of The Smothering New Deal Legacy (Forbes.com) June 23, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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According to conventional U.S. history texts, Franklin Roosevelt’s New Deal ended sometime in the late 1930’s.  Unfortunately, that is one more urban myth that needs to be exposed on Snopes.com. To our detriment, the New Deal is alive and well, still serving as the basic framework for U.S. domestic and economic policy.  Indeed, Time magazine was prescient when it featured a cover shortly after Barack Obama was first elected in November, 2008, showing the new president with Roosevelt’s top hat and long cigarette holder, proclaiming “A New New Deal,” since Obama has continued to exercise the powers and extend the policies of the New Deal.

Finally the U.S. Supreme Court struck a blow against the antiquated New Deal agriculture policies this week, declaring on an 8-1 vote that the Raisin Administrative Committee, overseen by the U.S. Department of Agriculture, took a farmer’s raisins in violation of the 5th Amendment “takings” clause of the Constitution.  Still, 80 years after the Depression, the government exercises the power to take crops from farmers in order to keep supplies down and prices up.  So Fresno, California, farmer Marvin Horne must be paid in full for the crop that was taken from him as part of the government price support program.  That’s one small raisin for farmer Horne, one big bag of raisins for rolling back the New Deal.

Unfortunately it is not clear how widely this may affect other agricultural subsidies since they do not all involve “taking” the crop.  The USDA said it would review the Supreme Court ruling and “provide guidance based on the decision in the near future.”  Even dissenting justice Sonia Sotomayor admitted that the raisin regulations may be “outdated and by some lights downright silly.”  But this is the legal legacy we live with when emergency laws and regulations from a worldwide depression are not removed or even reviewed when the emergency is over.

Another such relic of the New Deal may be removed later this month when authority for the Export-Import Bank expires.  It, too, was established by Executive Order of President Roosevelt to facilitate loans with the Soviet Union.  Now it appears to be one more measure still on the books long after its purpose has vanished.  Although its proponents argue it helps small businesses compete abroad, Boeing (not exactly a small business) received most of its money last year.  Amazingly Hillary Clinton still wants to put up a fight for it, saying she wants an Export-Import Bank “on steroids.”  Alas, the New Deal legacy will be part of campaign 2016.

Believe me, there is plenty more from the New Deal that needs to be reexamined.  It was during that period that executive power began to grow dramatically, with Roosevelt saying the president needed war-like powers to deal with the economic emergency.  Again the courts have been somewhat helpful here, with the Supreme Court ruling that the president cannot do end-runs around the Congress with “recess appointments,” and another federal court ruling recently that he does not have the power to change the immigration laws unilaterally.  Likewise huge growth in the national debt was a gift from the New Deal that keeps on giving today.

It was also during the New Deal that the commerce and spending powers of the government under the Constitution grew dramatically.  Again the Supreme Court has taken a little wind out of those sails, declaring that Obamacare was not justified under the Commerce Clause, even while upholding it under the taxing power, and also warning that Medicaid regulations bordered on an unconstitutional stretch of the spending clause.  Of course Obamacare itself is a major addition to the New Deal legacy of Social Security.

President Obama recently made news when he said in an interview that “racism casts a long shadow and is still part of our DNA that’s passed on.”  Unfortunately the same thing could be said about the New Deal—kudos to the Supreme Court for at least trimming its sails a bit.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/23/the-supreme-court-removes-one-raisin-of-the-smothering-new-deal-legacy/

Must God Modernize? (National Radio Commentary / Salem-Townhall.com) June 17, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Amid the heated rhetoric about gay marriage comes the absurd and dangerous claim that God needs to change with the times.  New York Times columnist Frank Bruni wrote that Christians should rightly bow to “the enlightenments of modernity.”  Speaking of reproductive rights, Hillary Clinton said deep-seated religious beliefs “have to be changed.” 

Nothing is more at odds with the First Amendment than arguing that God has to bow to modernity. The First Amendment affirms the free exercise of religion, whether ancient or modern.

Legal scholar Richard Epstein points out that “the law is a blunt instrument that lurches first too far in one direction and then too far in the other.”  Unfortunately that’s happening with some advocates of gay marriage, pressing for a larger legal change than necessary.  There is room to accommodate same-sex marriage and its legal benefits without making Christians limit their free exercise of religion.  

This new liberal orthodoxy—that can tolerate no dissent (even from God)—poses a real danger to religious freedom.

Link to Salem-Townhall.com audio:  http://townhallreview.com/2015/06/davenport-must-god-modernize-6-18-15/

Rugged Individualism Is Exactly The Wrong Case for Obamacare (Forbes.com) June 15, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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President Obama has been heating up the rhetoric about Obamacare as the Supreme Court prepares to announce its decision on whether the whole program might collapse over illegal subsidies.   In a press conference, he meddled in the work of the judicial branch, saying the Court should never have taken the case in the first place.  The next day, he summoned up American rugged individualism in its defense, saying:  “The rugged individualism that defines America has always been bound by a set of shared values; an enduring sense that we are in this together. That America is not a place where we simply ignore the poor or turn away from the sick. It’s a place sustained by the idea that I am my brother’s keeper and I am my sister’s keeper.” I’m sorry, Mr. President, but America’s rugged individual—bounded or not– is the last place to look for defense of federalizing healthcare.

The idea of the rugged individual was captured in historian Frederick Jackson Turner’s “frontier thesis,” explaining how the American character had been developed battling the elements and conquering the territory of the American West.  The first use of the actual expression “rugged individualism” was by Herbert Hoover in his campaign for president in 1928, explaining why the great concentration of federal power built up during World War I should be returned to the people in peacetime.  He contrasted the American system of self-reliance and “rugged individualism” with the European systems of paternalism and socialism.

Yes, it is true that American rugged individualism is often accompanied, even limited, by something else.  But that something else is not federal mandates such as Obamacare.  Perhaps what Obama was aiming for, but missed, was what the French journalist and philosopher Alexis De Tocqueville observed when he visited America, noting that Americans were forever associating and helping one another, whether through churches or civic associations of every shape and form.  Even life on the American frontier involved a lot of collaboration, along with individualism.  But these were voluntary community efforts, a kind of public virtue, not statism.  Efforts by the state—such as Obamacare—are precisely the opposite of individualism.

Beginning with Progressivism and the New Deal, the modern welfare state became the alternative to rugged individualism, and Franklin Roosevelt’s “forgotten man” began to replace the “rugged individual” as the object of federal policy.   The two should ideally live alongside one another, if Washington leaders would allow room for both.  So, for example, even among the excesses of Lyndon Johnson’s Great Society, there would nevertheless be space for individual and corporate health care policies for rugged individuals, and then the safety net of Medicare created for the forgotten man.

But, alas, Obamacare neither sought nor found a balance between the rugged individual and the forgotten man.  It turned out that if you liked your policy, you probably could not keep it, Mr. Rugged Individual, as millions of policies became “illegal” because they did not cover everything Obamacare insisted upon.  Of course it’s hard to find balance when you ram through a massive overhaul of the health care system on a party-line vote, without a single member of the “other” party voting in favor.  So rather than creating two systems—one a rugged individual’s personal or workplace policy and the other a safety net for the forgotten man—Obamacare created one, large system, essentially federalizing healthcare.   This is not rugged individualism bounded by public virtue—this is a federal takeover, pure and simple.

While there is widespread agreement that individualism is part of the unique character of Americans, policymakers in Washington have been steadily killing it since the New Deal.  It would help if the President understood rugged individualism and then allowed it a place at the policy table, rather than continuing to suppress it in the quest to federalize everything from education to healthcare and the environment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/15/rugged-individualism-is-exactly-the-wrong-case-for-obamacare/

Supreme Court Decision Time (National Radio Commentary / Salem-Townhall.com June 9, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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June is bustin’ out all over, the song says, and it will soon bust out at the U.S. Supreme Court. June is the month when many of the Court’s decisions in cases heard over the last 9 months will be announced.

Obamacare has been in court since the day it was signed into law, which happens when a massive overhaul to a major system has very little debate or attention to detail.  Drafters recently claimed that the issue in Court now was a mistake.  But it’s not the Supreme Court’s job to fix Congressional mistakes, so the Court should decide that Obamacare subsidies are not valid in states that do not have their own exchanges, as the law states, and send it back to Congress and the states.

Same-sex marriage is being addressed just fine in the states and lower courts.  There is really no need for a major Supreme Court declaration about it, and a conservative court should say so.

Either way; Supreme Court decision time is here.

Link to Salem-Townhall audio:  http://townhallreview.com/2015/06/davenport-supreme-court-decision-time-6-9-15/

Must God Keep Up With The Times? (Forbes.com) June 1, 2015

Posted by daviddavenport in Op/Eds.
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Perhaps you have missed it amid all the heated rhetoric about gay marriage, but seemingly serious people have proposed that henceforth Almighty God—or at least God’s people and churches—must keep up with modern times. In order to advance same-sex marriage appropriately and constitutionally, conservative Christians, Orthodox Jews and Muslims must get over their commitment to ancient doctrines and ideas and drag God into the liberal paradigm of the twenty-first century.

Frank Bruni, columnist for the New York Times, wrote that Christians should rightly “[bow] to the enlightenments of modernity.” Bruni favorably quoted businessman and gay philanthropist Mitchell Gold who said church leaders must be made to “take homosexuality off the sin list” (as though that list is invented and maintained by man, not God). Hillary Clinton, speaking of reproductive care and safe childbirth at the Women in the World Summit, said “deep-seated cultural codes, religious beliefs and structural biases have to be changed.” Even the Archbishop of Dublin, following the recent gay marriage vote in Ireland, said the church needed to do a “reality check” to see whether it had “drifted completely away from young people” today (is it really the church that is drifting, or young people and public opinion?).

And so we face a new challenge to religious liberty as codified in the First Amendment (free exercise of religion): one may freely exercise religion so long as it is in harmony with the spirit and understanding of the modern age. The Fourteenth Amendment guarantee of equal protection under the laws apparently now trumps the First Amendment free exercise of religion in that Christians and others may not freely exercise a religion that is not consonant with modern understandings and social practices.

Of course God may have a few problems with this. As far as we know, God may still be living in an Isaiah 55:9 kind of world, proclaiming, “As the heavens are higher than the earth, so are my ways higher than your ways and my thoughts than your thoughts.” God may still be hung up on notions of “absolute truth” or the “inerrancy of Scripture” that have been a hallmark of traditional, orthodox religion.

As legal scholar Richard Epstein points out, “the law is a blunt instrument that lurches first too far in one direction and then too far in the other.” Unfortunately this is now happening with some advocates of gay marriage who are promoting a larger legal change than seems necessary. It certainly seems plausible to allow same sex couples access to the institution of marriage (although personally I prefer to keep “marriage” a sacrament of the religious world and have the government license everyone for “civil unions”) and its favorable tax and legal treatments without inhibiting the free exercise of orthodox religions whose traditional beliefs include different understandings about sexual expression and marriage. While the law need not favor God’s approach to social matters, the First Amendment clearly allows the freedom to follow it, whether ancient or modern.

So, for example, it does not seem necessary, or even legally appropriate, to fine an Oregon bakery whose owners’ religious understandings do not allow them to support same-sex marriage $135,000 for declining to design and decorate a cake for a lesbian couple. Although public opinion has been moving rapidly in favor of same sex marriage, a recent AP-GfK poll found that most Americans thought it was even more important to protect religious liberties when they conflict with gay marriage. Indeed, there should be room to accomplish both.

It seems absurd to suggest that God must keep up with the (New York) Times, but there is an emerging liberal orthodoxy that brooks no dissent, even from God. Such thinking would be the beginning of the end of religious liberty under the First Amendment and should be no part of constitutional or legal understanding.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/01/must-god-keep-up-with-the-times/

Apparently 90% of Harvard Faculty Can Agree On Something: Giving To Democrats (Forbes.com) May 7, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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I guess we now know why William F. Buckley famously said:  “I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.”  According to a recent study by the Harvard student newspaper, 84% of Harvard faculty giving to political campaigns goes to Democrats.  In the College of Liberal Arts and the Law School it was a stunning 96% and 98% respectively, and 86% at the fair and balanced Kennedy School of Government.  Even in one typical campus bastion of conservatism, the business school, 62% of political giving went to Democrats.

In one sense, this is hardly news, except for the near unanimity of any action on the part of presumably thoughtful, independent people.   An old saw says that faculty can’t agree on anything except to hang the dean, and even then they can’t agree on when and where.  So having hundreds of smart, notoriously independent people all decide to give their money to one political party over another surely makes a powerful statement.  Even the Dean of the Harvard College of Arts and Sciences, Michael D. Smith, admitted to being “amazed at how high that number is.”

Lest you jump to the conclusion that the Harvard Crimson must have cooked up some crazy statistical anomaly, previous studies tend to support these results.  In 2012, Campus Reform studied giving by faculty and staff at the 8 Ivy League colleges and found that $1,211,267 was given to President Obama and only $114,166 to Mitt Romney.  Brown University led the pack with 96% of faculty and staff donations going to Obama, with Dartmouth (where an occasional conservative voice is at least heard) and the University of Pennsylvania bringing up the rear with 94% donating to the Obama campaign.

In an earlier day, a few studies of professorial voting registrations were collected.  In one study of 15-20 California institutions, nearly all had 80%+ faculty registered as Democrats, with only two institutions, both of which had reputations for being quite conservative, having close to 50/50 voter registrations.  Obviously just being balanced politically looks wildly conservative in the Alice in Wonderland world of higher education.  An article, “Why are Professors Liberal?” by sociologists Neil Gross and Ethan Fosse summarizes some of these studies, noting that the liberal tendency of the professoriate has “grown over time.”

So what, one might say.  At least that’s what Harvard officials said, more or less.  Harvard Business School professor Jay W. Lorsch, who gave approximately $65,000 to Democratic causes from 2011-14, said:  “I think most faculty here are pretty careful about not imposing their political views on students.”   Even if that is true—and having been on college campuses myself for over 40 years I do not believe it—UCLA Professor Alexander Astin has long pointed out that students learn more from the “implicit curriculum” of a University than what is actually taught.  The implicit message is clear:  it’s only ok, or intellectually responsible, to be a Democrat.  Academic debates are framed within a narrower spectrum.  Courses are accepted in the curriculum and new faculty are hired—or not—from that fundamental premise.

The fact is that American higher education has come to represent a diversity of everything but ideas.  We seek ethnic diversity, gender diversity, sociological diversity, geographic diversity—but not a diversity of ideas or points of view.  And, after all, isn’t that supposed to be the fundamental business of education, the pursuit of ideas?

On the seal of my alma mater are the words “the wind of freedom blows.”  In real life, sometimes those winds blow left, sometimes right, often center.  But not in the artificial and dangerous world of higher education, and certainly not at Harvard.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/05/07/apparently-90-of-harvard-faculty-can-agree-on-something-giving-to-democrats/

A Lump of Coal for Obama (National Radio Commentary / Salem-Townhall.com) April 23, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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With Congress and the President at odds, the President continues to use his executive power pen in powerful and unconstitutional ways.  Now the executive branch’s Environmental Protection Agency wants to force coal plants to reduce carbon dioxide emissions by up to 30 percent.

But a complicated policy question of energy independence versus clean air is not a matter for an administrative agency to decide on its own.  Even President Obama’s liberal constitutional law professor from Harvard, Laurence Tribe, agrees this goes too far.  He says “burning the Constitution should not become part of our national energy policy.”

Those who defend the President argue that he has not issued an extraordinary number of executive orders.  But it’s not just about quantity—it’s also about substance.  When a president tries to run everything from immigration to gun control to health care and now the environment by executive order, it’s too much.

The courts must stop him.

Link to Salem-Townhall.com audio:  http://townhallreview.com/2015/04/davenport-lump-coal-obama-4-21-15/

Religious Conscience vs. Gay Rights (National Radio Commentary / Salem-Towhall.com) April 14, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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It appears that in Indiana and eventually everywhere, we are about to throw out the baby with the bathwater.  In the name of expanding and securing gay rights under the 14th Amendment, we are prepared to give up people’s religious rights under the 1st Amendment.  This is both unfortunate and unnecessary.

The hard case is the individual baker, photographer, florist or caterer whose religious beliefs hold that marriage is between a man and a woman and cannot in good conscience participate in gay marriage.  On the other hand, the law increasingly says same-sex marriage is legally protected.

In a clash of constitutional rights, courts must decide.  It seems like there is room to uphold gay marriage while allowing those who perform personal services and whose religious beliefs do not allow for gay marriage to decline to participate.   

Gay rights advocates won’t like that, but the harm of finding a different baker seems less than forcing someone to violate religious conscience.

Link to Salem-Townhall audio:  http://townhall.com/talkradio/dailycommentary/699514

A Liberty Moment (National Radio Commentary / Salem-Townhall.com) April 10, 2015

Posted by daviddavenport in Radio Commentaries.
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The controversy over religious rights in Indiana presents an important “liberty moment” when the lights come on and we recognize that big government is in fact out to take away our freedoms.

Remember the promise about health care? If you like your policy, Obamacare won’t hurt you, you just keep your private policy.  But no, millions of those policies were in fact declared illegal by Obamacare and people had to buy more expensive policies with mandatory coverages like pregnancy insurance for young males, they didn’t want or need.

That was the promise of same-sex marriage: It won’t hurt or affect anyone, it’s just extending a right for two people who want to marry.  But no, in Indiana, Arkansas and elsewhere, it turns out that bakers, photographers, florists and caterers whose owners’ religious beliefs do not permit them to participate in gay marriage ceremonies must either violate their religious conscience or give up their business.

Attention 2016 voters:  this is a liberty moment.

Link to Salem-Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699512


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