To understand how policy changes in this country, consider the case of income inequality. First comes a huge marketing campaign to change the conventional wisdom about the topic. From President Obama, who has decided it is “the defining challenge of our time,” on down, everyone is talking about income inequality, how it has grown and why that is a problem. Then policy alternatives are discussed: we should increase the minimum wage or raise taxes on the rich. Finally, our elected leaders feel compelled to “do something” and end up passing laws that may not be needed at all, probably won’t solve “the problem” and will be loaded with unintended consequences. That’s the bandwagon we’re on right now with income inequality.
What is needed is a deeper look at the issue itself, whether it is appropriate or feasible for government to act, and what solutions might work. Of course a dialog of this depth rarely occurs, even (especially?) on the floor of the U.S. Senate. Instead the subject is reduced to sound bites and marketing campaigns, followed by a move to take action, some action, any action, regardless of likely impact.
In an effort to slow the income inequality bandwagon, and bring about a more realistic conversation and, ultimately, a more reasoned conventional wisdom about it, consider these inconvenient truths about income inequality:
• Only the incomes of the top 0.01% have really grown—the Lady Gagas and Bill Gates and Tiger Woods. These are people whose brands have gone global, or who built wildly successful companies. Many of them, like Bill Gates, have not grown their piece of the pie at the expense of the poor or anyone else, rather they have grown the pie for everyone. Your average doctor, lawyer, investment banker in the rest of the 1% have seen little growth and even a decline in their share of wealth.
• Income mobility—your ability to move up and down the income scale—has remained about the same for 75 years. This is the more relevant question in an “equality of opportunity” (not an “equality of outcome”) society and the evidence remains strong that America is still a land of opportunity. As economist Thomas Sowell points out, most of us start in the bottom 20% but we rise, with more of us ending up in the top 20% than remaining at the bottom. People who started in the top 20% of incomes had the lowest rate of increase in their incomes.
• Changing demographics have a huge, but underreported, impact on the income figures. The fact is that we have more older people now—who have higher income and wealth, suggesting the figures need to be age-adjusted, which they are not. Household demographics have changed radically, with 2 or more income workers in a family now bringing in far more income at the top, and single people bringing in less at the bottom. Do we seriously want to change marriage policy to address this?
• When we count income, we leave out a great deal of relevant data—including food stamps and government welfare (intended to address the problem) and health and pension payments, which have grown rapidly. Let’s at least get the data right.
• And what is our goal? To transfer more wealth from Bill Gates and Lady Gaga to others? When is income appropriately equal? How serious a problem is it when 90% of Americans living below the poverty line have smart phones, cable TV and cars (70% with two cars)? In short, all incomes are up over time, so is this an appropriate government problem?
• What will the proposed solutions do? The Congressional Budget Office estimates, for example, that increasing the minimum wage to $10.10 will cause half a million people to lose their jobs. The big problem is that we aren’t creating enough jobs and people are leaving the workforce at an alarming rate. Jobs are what cure poverty, not government handouts.
Unfortunately policy is complicated, difficult stuff. A whole lot more work needs to be done to understand incomes, jobs, and poverty in the new global economy. Jumping on the income inequality bandwagon, in the face of these hard questions, will be part of the problem, not part of any constructive solution.
The timing is deliciously ironic. At the very moment college athletes are running up and down basketball courts in March Madness, earning over a billion dollars for TV networks, the NCAA, colleges and athletic conferences, a hearing officer of the National Labor Relations Board (NLRB) ruled that Northwestern football players are university employees, enabling them to unionize. This ruling, doubtless only the first step in a lengthy process, has sent shock waves through the NCAA and the academic world.
The legal argument was whether student-athletes are, in reality, employees of the University within the meaning of the law. The definition of an employee, established by the NLRB, is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment. After examining the extensive payments to students and the very detailed control of the athletic department and football coaches over the student-athletes’ conduct for 40-60 hours a week, the hearing officer concluded that scholarship athletes were not “primarily students” who “spend only a limited number of hours performing their athletic duties,” but rather employees. So-called “scholarships” for athletes are not, says the hearing officer, truly grants in aid, but rather payments for services, although walk-on players are considered student-athletes in the traditional sense.
Is this a good development for the academic world? Of course not. Scholarship student-athletes are no longer purely students any more. They may vote to unionize, and the unions, in turn, will become their representatives in bargaining over working conditions, salary and the like. It swings the pendulum too far, completely changing the nature of the university and student-athlete relationship, rather than taking up the many issues that should be addressed on a case-by-case basis. Admissions, financial aid, student conduct and all sorts of other departments of the university may now find their policies subject to union negotiation. As a former university president, and before that general counsel, it’s crazy.
But the reality is that it will take a crazy swing of the pendulum like this to begin to address the power-mad and money-grubbing ways of the NCAA. We all know how dominant major revenue sports have become on college campuses, with coaches paid millions of dollars (while professors make thousands), special dorms and apartments constructed for student-athletes and so on. Less visible, perhaps, is that the so-called oversight body for all of this, the NCAA, has itself become a cash cow, producing over $70 million in excess revenues in 2012 (the last year for which figures are available). The power-happy NCAA has a nearly 500-page rulebook, which results in micromanagement of coaches and athletes, excessive limitations on student-athletes’ lives and budgets (they can’t even have jobs or accept dinners regular students can), and power imbalances between large and small schools.
Ultimately there was going to be some pushback to this kind of unchecked growth in the power and money of the NCAA and college athletics. The nation’s founders recognized that unchecked power results in abuse and so they built in checks and balances as well as balances of power in our Constitution. Unfortunately the NCAA, along with university leaders, has not been sufficiently concerned about that, and the money and power grew exponentially, on the backs of student-athletes. What do the Northwestern players say they want out of this? Reformed brain trauma study/prevention, a student opportunity fund (for emergencies, etc.), perhaps an incentive for players to graduate on time. Maybe a little more freedom and control over their college lives and budgets. All things the NCAA could have addressed on its own, but until forced to, would not.
Like ballot propositions, this kind of decision makes a better political statement than it does actual policy. But sometimes that’s where reform has to begin, by someone with a grievance finding just enough of a leverage point to stand up and speak truth to power. A few Northwestern football players and an NLRB hearing officer have done just that. Let the Madness begin.
Tags: International Law
News stories recently reported that the International Criminal Court convicted a Congolese warlord of being an accessory to war crimes and crimes against humanity. Rarely were readers told that this is only the second conviction obtained in the Court—both of Congolese warlords—after 12 years of the Court’s operation and over $1 billion in expenditures. Rarer still was the insight that even this conviction, on a 2-1 vote, was long in coming and disappointing in outcome since the criminal was acquitted of the most serious charges, and was only convicted at all because of a mid-course correction to charge him with being merely an accessory to the crimes.
The obvious question few seem to be asking is whether the I.C.C. is simply too expensive and inefficient to justify. Originally designed to make certain that war crimes, genocide and crimes against humanity were not ignored, the Court is supposed to achieve a sufficiently robust presence that it contributes “to the prevention of such crime.” To that end, it has 34 judges, over 700 staff, and an annual budget of $166 million. They say you can’t put a price on justice but $500 million per warlord conviction seems high by any standard. And what do 34 judges do all day? You don’t have to be a legal expert to figure that the preventive effect of convicting 2 warlords in 12 years doesn’t exactly leave international war criminals shaking in their boots.
The next scheduled prosecution was at least going after a bigger fish, Kenyan president Uhuru Kenyatta, but that trial was officially postponed last month after witnesses began to withdraw. There are reports that this prosecution may be close to collapse. The Prosecutor of the Court is unable to arrest her most visible target, President Omar al-Bashir of Sudan, who has been indicted but ignores the warrant for his arrest, as do other countries in the region. And speaking of the African region, all the Court’s cases in its 12-year history have come from that continent, prompting concern from leaders there, and a decision by the African Union not to cooperate with the ICC.
Small fish, few cases, fewer convictions, arrest warrants ignored, all while the Court burns through millions of dollars a year in The Hague. It seems evident that something is wrong with this picture, but what might be done? One obvious possibility would be to use the money instead to strengthen national courts. Under the doctrine of complementarity, the ICC acknowledges that it is essentially a back-up to national courts. Indeed, much of the reason for creating it was an acknowledgment that a number of countries simply do not have sufficiently strong or independent judiciaries, and that their court systems would easily be overwhelmed by mass atrocities. What if these hundreds of millions of dollars were invested directly into the national judiciaries of these countries, allowing the trials to take place closer to home where witnesses might be more readily available and the sense of justice and healing would be more directly felt?
Another alternative might be temporary international tribunals such as those created to deal with the massive genocide in Rwanda, or in the former Yugoslavia and elsewhere. These tribunals have not been inexpensive either, but at least they have brought hundreds of cases and a large number of convictions. By comparison, the trial docket in The Hague is embarrassingly small. Since all the ICC cases so far have been brought in Africa, perhaps it would make sense to develop an African regional court.
When the International Criminal Court was being formed, I was among those who criticized it as one more international institution that would try to do too much, inserting itself into complex political, diplomatic and military matters that should not be reduced to criminal prosecutions. I was thinking of a U.S.-style independent prosecutor ranging around the world looking for trouble. Although there has been some of that, it turns out by now that the bigger problem is that the Court is accomplishing too little. The ICC is one more utopian tool of global governance that has disappointed. Its funding and staff would be better utilized to strengthen national and regional criminal justice.
Turning Attorneys General Into Judges (National Radio Commentary: Salem / Townhall.com) March 10, 2014Posted by daviddavenport in Op/Eds, Radio Commentaries.
U.S. Attorney General Eric Holder must have been feeling his oats when he recently told state attorneys general that they should exercise their own judgment on which laws to enforce. In particular Holder was speaking about same-sex marriage, ignoring the fact that the Supreme Court has not found a constitutional right to same-sex marriage, leaving the matter up to state legislatures and ballot propositions instead.
But a state attorney general is neither a legislator nor a judge. The attorney general is a law enforcement officer and a prosecutor. It is not their place to decide which laws should or should not be enforced but rather to enforce and defend laws enacted by the democratic process.
Holder’s shocking advice is part of the excess of executive power in the Obama administration. Under the Constitution, legislatures enact laws, judges rule on their legality, but the executive branch executes and enforces the law. An attorney general has no power to unilaterally veto a bill or declare it unconstitutional.
Link to Townhall.com audio: http://townhall.com/talkradio/dailycommentary/698318
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