You’d have to say we’ve dodged a couple of big mythical bullets in the last few months. The world did not end on December 21, 2012, as some forecast from a Mayan myth. And the federal budget sequester did not cause the sky to fall as predicted by Washington, D.C. Double whew!
Do you remember what was said when the budget sequester took effect more than two months ago? President Obama warned in February that, thanks to sequestration, “all our economic progress could be put at risk.” I guess the operative word was “could,” like the weather reporter’s 10% chance of rain that actually occurs. Cabinet officers issued such dire warnings that Transportation Secretary Ray LaHood felt obligated to add: “We are not making this up.” John Adler, president of the Federal Law Enforcement Officers Association put in his two cents: “The road to a lawless society is currently being paved by the congressional sequester.” Even this week Treasury Secretary Jack Lew was still referring to the “reckless across-the-board cuts” of the sequester.
It turns out that, like Chicken Little’s fear that the sky was falling when it was only an acorn hitting his head, the sequester has been a bit of a non-event. The 2013 automatic cuts of $85 billion are less than 2% of the federal budget. And what senior manager of a large organization (almost certainly with a lot less fat than the federal government) hasn’t survived the implementation of far deeper cuts than that? Not only has the economy survived, but housing prices are up, jobs are still growing modestly, and the stock market (including government contractors expected to be hurt the most) is at all-time highs. A recent Gallup Poll indicates that most people don’t even know whether the sequester has helped or hurt, or even whether they have been impacted by it. Representative Billy Long of Missouri says his constituents actually want more sequestration, not less.
So policy-wise, what happened here? Was this just another Y2K problem that was over-hyped and never played out? As usual in Washington, it was a lot of things. Some of it was simply overheated political rhetoric to try to avoid the sequester through negotiations. You do know that Washington, D.C. is the one place where sound travels faster than light? And it is also true that there have been impacts in local social programs such as Head Start, senior services, and others. And some of the cuts were delayed, so there will still be some impact down the road if there are no further fixes.
Plus several things happened that Washington just didn’t anticipate or admit. The private sector stepped up to save some key services and events such as the White House Easter Egg hunt, or keeping open some of our national parks. Fifty percent of the cuts are to be absorbed by the Department of Defense, where the reductions will not be as obvious to the general public.
But the big change was that, in this game of political chicken, both sides gave in, pulling much of the sting from the sequester. The most famous example, of course, was the air traffic controllers, who were spared cuts when Congress gave them permission to use their deep capital expenditure budgets to fund current operations and prevent flight delays. Law enforcement was also bailed out when Congress gave the Justice Department authority to shift money around and avoid furloughs and job cuts in the FBI; similarly no furloughs or cuts in Customs and Border Protection (and plenty of other agencies). Even the meat inspectors’ union arm wrestled an exception to keep the supply of meat moving. Recently a Republican member of Congress suggested Head Start should receive similar assistance, and the Defense Department is preparing its own request for flexibility.
All this shifting around means, in the end, that the sequester will not cause enough visible pain to force Congress and the President to enact permanent budget reductions, which was the whole point. Perhaps only in Washington would they pass a bill to drive the federal budget off a cliff if cuts weren’t agreed to, then drive off the cliff but give key agencies wings for a soft landing, and think that’s governing. But stay tuned—if the first round has been underwhelming, there are doubtless more sequester games to come.
Please click on the link to view the article on Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/05/13/sequester-armageddon-has-been-president-obamas-y2k/
Now Go Deep (Hoover Digest) May 7, 2013Posted by daviddavenport in Op/Eds.
Tags: Conservatism, Constitution
Politics is only topsoil. The enduring values of conservatism are the roots.
Months after the presidential contest, obituaries for conservatism are still appearing. The Titanic is sinking, says one commentator; the conservative arguments put forward in the 2012 election will soon be relics in a museum, writes another. Demography is destiny, many say, and conservatism is basically populated by old white men whose day is done. A standard refrain is that conservatism needs to change both its message and its methods if it hopes ever to be heard again. Time for an extreme makeover.
I have a slightly different message for conservatives: it’s time to go deeper.
Politics is only the shallow topsoil of the American political debate. It’s easily blown about by campaign ads and rhetoric, influenced by momentum and even hairstyles. Former British prime minister Harold Wilson wisely observed that “a week in politics is a long time.” Remember James Carville’s book after the 2008 election? The title boldly proclaimed 40 More Years: How the Democrats Will Rule the Next Generation. Less than two years later, Democrats suffered historic defeats in the midterm elections.
Doubtless mistakes were made, as they say, at the political level in 2012. But the real work of conservatives now is not at that superficial, topsoil level; it is in the deeper soil of policy and the taproot of values where conservatives need to toil now. Americans should be presented with a deeper and more compelling narrative about the policy choices facing the country and the problems the present path will create. It is less about an extreme makeover and more about deepening its own policy message and clarifying its own values. Otherwise, why bother to become merely a pale version of liberalism simply to broaden your appeal and win?
For example, there is a serious conversation to be had about the family, one that is not reduced merely to pro-life and pro-choice sound bites, one that doesn’t begin and end with same-sex marriage. Liberal Harvard professor Daniel Patrick Moynihan pointed out the importance of a stable family life to the health of the republic in the 1960s, and many have noted the troublesome decline of family stability and the birthrate in Europe. That conversation needs to take place in a serious way here in America. Which family values are entirely personal, and which affect the public good? This question of values is one that conservatives should appropriately raise, but in a thoughtful way.
There is a real debate to be had about the role of government. Here my Hoover Institution colleague Peter Berkowitz rightly points out that conservatives have mistakenly allowed the debate to be about big versus small government. Government is big and it isn’t likely to shrink much. The real debate is about the role of government, not merely its size. It’s about limited government, not just big government. Which health care decisions, marriage decisions, and social questions are essential for government to decide? Federalism requires that we ask whether an issue is for individuals or government to decide, and if government, which branch and which level? That, again, is a serious debate that needs more than the divisive question: “Are you in the 47 percent or the 1 percent?”
Conservatives aren’t wrong about immigration, and will make a big mistake if they succumb to resolving these hard policy questions merely on the political level so they can win Latino votes. What proper interest does a country have in deciding how many and who will be allowed to enter? What about legal, not just illegal immigration: how do we encourage the sort of immigration that will strengthen the country in important ways?
A strong national defense is not something that Americans are ready to sacrifice. Even independent voters were greatly troubled by the lack of security at our government facility in Benghazi, Libya, and that concern risked becoming a tipping point in the recent presidential campaign. How does America lead in a dangerous world? That is a question about which conservatives frankly have more answers than liberals.
When a progressive friend asked me how I felt after the election and I shared some of this, he said, “You are an unrepentant conservative.” And so I am. Conservatives will make a big mistake if they think only of going wide and shallow, seeking more votes at the topsoil level of politics. First they need to go deeper, and sharpen the core values and principles which many Americans do share, and which if sacrificed on the altar of politics would leave conservatism one more loud voice merely seeking votes.
Hoover Digest ! 2013 · No. 2
Please click on link to go to the Hoover Digest article: http://www.hoover.org/publications/hoover-digest/by-author/9832
Reprinted by permission of Forbes Media LLC © 2013. All rights reserved.
Tags: International Law, Supreme Court
Sometimes the reaction to a Supreme Court decision is as telling as the opinion itself. So it is, I think, with the Court’s recent judgment in Kiobel v. Royal Dutch Petroleum Co., in which the Court decided that the Alien Tort Statute does not allow tort cases to be brought in U.S. federal courts when the actors and territories involved are outside the U.S.
At first blush, this seems like a relatively straightforward case, one of statutory interpretation and the seemingly arcane rules of legal jurisdiction. But, in fact, a human rights cottage industry had formed around this statute, such that the New York Times editorial board and Amnesty International have decried the decision as an assault on human rights, and the Chamber of Commerce saluted a welcome limitation on expensive lawsuits against corporations. It is one more example of how international law is as much about politics as it is law.
What the Supreme Court was trying to say is that the United States is not the world’s courtroom (even if it is the world’s policeman). The Alien Tort Statute, enacted as part of the Judiciary Act of 1789, permits federal courts to recognize private claims in for a limited number of international law violations. The legislative history suggests that its purpose was to open federal courts to legal claims by foreign ambassadors serving in the U.S., and the statute remained in relative obscurity for its first 171 years, being invoked only three times.
But as California Governor Jerry Brown wisely observed, “Needs very quickly turn into rights, and rights turn into laws, and laws turn into lawsuits.” And so beginning in the 1970s, nearly two hundred years after its enactment for a different purpose, creative human rights lawyers found a way to bring foreign nationals who suffered injury or loss of human rights at the hands of foreign corporate entities or government officials to bring claims in U.S. federal courts. The laws of jurisdiction normally require that cases be brought where the plaintiffs or defendants reside, or where the acts complained of occurred, where there is a direct stake in the matter and witnesses are located. But the 33 words of this old statute looked like a loophole waiting for lawyers to drive through, and those cases began to be brought. Finally, last week, the Supreme Court closed the door, saying there was nothing about this law to give it “extraterritorial application.”
In response, the New York Times editorial board reminded me why I almost never read their work anymore. The opening line of their editorial attacked the “Supreme Court’s conservatives” for dealing “a major blow” to human rights. Not until you got to the fourth paragraph did you learn that, in fact, all nine justices agreed with the basic outcome of the case, though concurring opinions were filed. So as far as the Times is concerned, this case was not really about the 33-word statute from 1789, nor its extraterritorial application to make the U.S. into the world’s courtroom for torts. It was about five conservatives out to undermine human rights. You wonder if they even bothered to read the case.
The concerns of Amnesty International and other human rights organizations were at least more thoughtful, if still more political than legal. These organizations, which are often thought to wear white hats and represent the greater good, are in fact single-issue advocates who are not as concerned with legal process as they are winning on their issues. The case at hand involved Nigerians whose rights were allegedly violated by corporations based in the Netherlands and the U.K. Their claims could be heard by courts in Nigeria, where the alleged conduct occurred, or in the countries where the corporate defendants are based. But lawyers like to “forum shop,” choosing courts that are most sympathetic to their cases and the laws of jurisdiction are rarely their concern. So this case about limiting a jurisdictional loophole became all about limiting human rights enforcement for them, even though the plaintiffs were left with perfectly good legal options.
Finally, the U.S. Chamber of Commerce viewed this as a tort reform case, protecting corporations from further expensive cases in U.S. courts. That wasn’t really the point either, since it was really about the laws of jurisdiction more than the law of torts, but they were happy to celebrate the victory.
In my view, the Court wisely exercised judicial restraint and, in an essentially unanimous decision, ruled that U.S. federal courts are not prepared to take torts cases from all over the world. But you would never have known that was the legal question or the Court’s answer from the retort by political players who surround and fuel international tort and human rights litigation.
Please click on the link to the article in Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/04/25/the-supreme-court-blocks-the-politicization-of-international-law/
Freedom in the States (Townhall.com) April 15, 2013Posted by daviddavenport in Radio Commentaries.
As lots of wealthy business leaders depart California for Texas, Florida, Nevada and elsewhere, everyone assumes it’s because of high state taxes, and in part it is.
But a new study from the Mercatus Institute on freedom in the 50 states reminds us that there is more to state government than just taxes, there is also regulation versus individual liberty.
Can you guess the freest states? In order: The Dakotas, Tennessee, “live free or die” New Hampshire, and Oklahoma.
And the least free—“we’ll tell you what size soda to drink” New York and “we can overregulate everything” California. Is it any coincidence that business owners and investors are rushing to leave California and that New York has lost 9 percent of its population in the last two years? I think not.
Individual liberty still matters.
Please click on the link to listen to the audio: http://townhall.com/talkradio/audioplayer/669777
While Governor Jerry Brown is in China touting the state’s rebound and recovery, many Californians are busy packing their bags for a move to Texas, Nevada or Arizona. Why? Because it appears that the once-Golden State may finally be overpriced, underperforming and ungovernable.
Is it possible that one state has managed to top every 50-state category on the following shameful list?
* Highest taxes (gasoline, sales and top bracket of income taxes)
* Lowest bond rating
* Highest poverty rate (at 23.5%, the home of 1/3 of those in poverty in U.S.)
* Highest unemployment rate (tied with Mississippi and Nevada at 9.6%)
* Highest energy costs
* Worst state to do business (as judged by Chief Executive magazine 8 years running)
* Most cities going bankrupt
* Prison system so poorly run it has been taken over by a federal judge
And California has managed to do this during its rebound, its good years, according to Jerry Brown who, if not Governor Moonbeam in his second coming as the state’s leader, is clearly not in touch with life on Planet California.
Although there is argument about this, there shouldn’t be: people are leaving the state. The data shows that there has been a net out-migration from California to other states since 1990, balanced for awhile by immigration from other countries. But by 2005 that had eroded, too, with birth rates in the state also dropping at an incredible rate. Over the past two decades, a net 3.4 million people have left the state. And this is before the 2013 increase in income tax rates which prompted even liberal TV talker Bill Maher to complain that “it’s outrageous what we (millionaires) are paying” in taxes, “over 50%,” warning “liberals, you could actually lose me.”
Looking more deeply at the out-migration and its message, one big issue is clearly jobs. So far, it has been primarily middle and lower income people who are leaving, and it is surely no coincidence that their departure tracks the loss of jobs in California. Even when companies do not leave the state altogether, they often open new manufacturing jobs elsewhere because it’s so difficult to get permits in California. It’s also no coincidence that immigration from Mexico has slowed dramatically since even Mexico’s unemployment rate is now lower than California’s. Housing in California is 2.7 times more expensive than in Texas and, with home prices picking up, that will only get worse.
But if jobs and housing launched Phase I of “California, There We Go,” taxes are at the forefront of Phase II which is only now picking up steam. Since California’s increase in income taxes only kicked in during January of this year, no data is yet available, but everyone in contact with business owners and wealthy Californians knows someone who is moving to Texas, Florida, Arizona and elsewhere. And even if the numbers are not large, the loss of every one of these wealthy Californians really hurts because they pay so much of the freight. In 2010, 1% of Californians paid over 50% of the state income taxes, and that will grow significantly under the new tax regime. Foolishly California continues to live off a highly volatile income and sales tax system, with the legislature adding spending in good times, but then through welfare also in bad times. It’s a formula for an annual state budget crisis, which California has endured for years.
Which brings us to politics and governance, an underlying contributor to most of the state’s problems. The legislature, with an “improved” 34% approval rating, is able to accomplish almost nothing, even though one party has dominated it for 40 years (both houses have been ruled by Democrats for all but 2 of those years and they now have a 2/3 majority). Californians have resorted to budgeting at the ballot box, passing initiatives that mandate how precious dollars must be spent. Two unions, the teachers and prison guards, exert overwhelming political power in their own interest. Even while Governor Brown brags of a balanced budget, he ignores the off-budget pension fund deficit which threatens loss of government services and closure of parks and libraries, prompts municipal bankruptcies, and keeps the state deeply in debt. As former legislator Joe Nation puts it, we’ve only seen “the tip of the iceberg” on this problem.
Former president Jimmy Carter once said, “Whatever starts in California unfortunately has an inclination to spread.” And that is being encouraged by Jerry Brown and others. Incredibly columnist Paul Krugman recently pointed to California as a blue state governance success. Do you really want this to spread to your state? I think not. The more powerful message is where people are going when they leave states like California and New York, two states ranked among the “least free” in a recent study by the Mercatus Institute. They are going to red states where, according to Mercatus, there is greater individual freedom, less government regulation and lower taxes. Earth to Jerry Brown: California, you have a problem.
Please click on the link to view the op/ed on Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/04/11/as-jerry-brown-touts-california-in-china-its-citizens-pack-their-bags/
An April Fool’s Joke? (Townhall.com) April 8, 2013Posted by daviddavenport in Radio Commentaries.
Was it an April fool’s joke—or just bad timing—when President Obama announced that April would be “National Financial Capability Month.” Among its ironic objectives is teaching young people how to budget responsibly.
Let’s see: The federal debt has grown from $10 million to nearly $17 million on this president’s watch, more than a 50 percent increase, and your household’s share of the debt has grown by over $50,000. The Congressional Budget Office says the fastest growing segment of federal spending from 2015 to 2021 will be…interest payments on the debt.
May I suggest that a better teacher than Mr. Obama on budgeting responsibly would be the new children’s book, Mr. Penny and the Dragon of Domeville, in which Mr. Penny tries to teach the federal dragon to quit eating everyone’s money before we run out.
Please click on the link to listed to the audio: http://townhall.com/talkradio/dailycommentary/669467
Tags: Supreme Court
At one level, this week’s Supreme Court arguments are about same sex marriage and whether it should now be protected under federal law. But in another dimension, same sex marriage is only the context for a fundamental constitutional, not social, question: who owns and therefore decides about marriage, the federal government or the states? The right answer—that marriage belongs to the states—would decide both cases before the Supreme Court, invalidating as unconstitutional the federal Defense of Marriage Act, but upholding the right of Californians, and by implication other states, to decide whether or not to allow same sex marriage in their state.
Of course this is not the outcome either side wants. Proponents of same sex marriage think it’s high time for their rights to be guaranteed by federal courts as a constitutional matter. Even though public opinion is shifting, and by now nine states have affirmed a right for same-sex couples to marry, proponents would prefer that a federal constitutional right be created by the U.S. Supreme Court. This obviates the need to continue to try to win the issue state-by-state over time, and it creates a guarantee that cannot easily be undermined or withdrawn by state legislatures and the political process.
Opponents of same sex marriage would prefer that the Court affirm that marriage is only between a man and a woman, upholding both the federal Defense of Marriage Act and California’s Proposition 8, and in effect declaring that same-sex marriages do not merit the same “equal protection of the laws” as heterosexual marriages.
But courts should not be engines of social change. It is up to the people, through ballot measures and their elected representatives, to decide social questions. When the Supreme Court took it upon itself to create a constitutional right to an abortion (Roe v. Wade, 1973), there followed decades of ill-tempered battles about judicial activism as well as over abortion itself. Is the Supreme Court ready to do this again with respect to same-sex marriage, especially when the states are actively taking this up? One would think that this is a bad idea, both politically and constitutionally.
Even more important, constitutionally marriage is not a federal question, but rather a state matter. In 1948, the U.S. Supreme Court affirmed that “under the Constitution, the regulation and control of marital and family relationships are reserved to the States.” (Sherrer v. Sherrer, 1948). Even in the judicial activism of the 1970’s, the Court again held that the regulation of “domestic relations” is within the “virtually exclusive province of the states.” (Sosna v. Iowa, 1975).
How might the Court, then, avoid both judicial activism and simultaneously affirm that states are the locus of decision about marriage? First the Court would hold that the federal Defense of Marriage Act (DOMA) is unconstitutional as a federal incursion on state power. Its one-size-fits-all attempt to regulate marriage—defining marriage for federal purposes as a legal union between one man and one woman—takes away state powers in violation of the Tenth Amendment (power not delegated to the federal government remains with the states or the people). But, in the other case before it, the Court would also rule that Californians have the right to make their own decision about marriage and that the federal courts below it were wrong to invalidate Proposition 8. Alternatively the Court could decide that there is no standing for private citizens to defend the California law, since the state of California declined to do so, and leave the one same-sex couple free to marry but not allow the case to serve as a precedent.
So many of the cases before the Supreme Court appear to concern the hot issues of the day: immigration, healthcare, same sex marriage. But, in the end, these cases are really about Constitutional power, and they should be decided on that basis. Our society is better off when social questions such as same sex marriage are decided through debate and discussion by the people and their elected representatives, not by a handful of judges.
This article is available online at:
Some Electoral Reforms are Better than Others (Townhall.com) February 26, 2013Posted by daviddavenport in Radio Commentaries.
Two very different reforms would change the electoral vote for president. Some Republicans are urging battleground states, to change from winner-take-all electoral votes to assigning votes by congressional district, as is already done in two states.
Democrats are leading an effort to pass a National Popular Vote bill that would, in effect, eliminate electoral voting altogether—requiring electors to vote for the winner not of their state’s election but of the national popular vote.
Although the Republican effort has less momentum, it is constitutional and better reflects the reality of voting on the ground than the somewhat artificial winner-take-all of the current Electoral College.
But the National Popular Vote is an obvious end-run around the Constitution and could lead to painful national recounts. The 2016 campaign is already underway in state legislatures.
Please click on the link to listen to the audio: http://townhall.com/talkradio/dailycommentary/666800
In Asking About Income Inequality, Obama Begins With The Wrong Question (Forbes.com) February 26, 2013Posted by daviddavenport in Op/Eds.
In his novel Gravity’s Rainbow, Thomas Pynchon, winner of major book awards as well as the McArthur “Genius Grant,” said: “If they can get you asking the wrong questions, they don’t have to worry about the answers.” This describes to a T what President Obama has done in seeking to make income inequality, as he put it in one of his speeches, “the defining issue of our time.” If that is the question, then higher taxes on the wealthy, a large increase in the minimum wage and other redistributionist measures become the answer. But, in fact, the president is either mistaken or misleading because income inequality is not the right question to be asking.
When Obama and his supporters refer to income inequality, they are taking a complex set of economic and social issues and boiling them down to a single data point: how large is the difference between the annual incomes of top earners compared with those on the bottom of the income scale. While that is one interesting question—though even as it is there are problems with it—having it stand alone as the driving force for change is a gross oversimplification that will lead to bad outcomes. It would be as if we decided to judge baseball pitchers by the number of walks they issue, not taking into account the vast array of appropriate measures (wins and losses, earned run average, strikeouts, hits given up, innings pitched, etc.) that combine to give a fuller and more accurate understanding of a pitcher’s effectiveness.
Asking about the gap between high and low income earners is at best an incomplete question. It tells us nothing about why the gap may be growing or shrinking. For example, it may be the case, as is shown in recent studies, that income at both the top and bottom has grown, but income at the top grew faster. But even that isn’t enough to know, because you would want to understand why the top is growing faster. Is it at the expense of those at the bottom? Actually it is not, since theirs is growing also, but it is because of greater investment income at the top. Do we then want to penalize Bill Gates and Steve Jobs for creating wildly successful companies and also the people who invested in them?
A further problem is that most of the data collected on this is before taxes, so it doesn’t take into account the effects of our progressive tax system. But that prompts an even deeper question: is it the role of government, and its system of taxation, to equalize income among citizens? The U.S. already has one of the most progressive tax systems in the world, so absent this red herring question about income inequality, taxing the wealthy would be an even tougher case to make.
A more relevant question would be whether there is mobility among the various income levels. In an equality of opportunity society such as the United States, income inequality should only be a problem if an individual’s income is static. A U.S. Department of Treasury study looked at income mobility from 1996 to 2005 and concluded that, during the study period, over one-half of taxpayers moved to a different income quintile. Approximately one-half of taxpayers in the bottom income quintile had moved to a higher income group, and only 25% of those in the top quintile remained there. With people moving up and down the income distribution scale, there would appear to be equality of opportunity, if not equality of outcome. And nearly everyone agrees that the answer to more mobility is education, not income redistribution. Education is where the policy emphasis should be.
Legendary football coach John Madden was asked to comment when a team signing a notoriously flaky quarterback announced that he was “the answer.” Madden’s response was, if he is the answer, I guess I don’t know what the question is. If income inequality is the answer, the question is not how to have an equality of opportunity society. Instead, it is the much more Machiavellian question of how to build a case for income redistribution, which is altogether the wrong question to be asking in a free society. Unfortunately my conclusion to this whole matter is that President Obama wants to ask that very question—how can we redistribute income in a way that he thinks creates greater equality—but knowing how controversial that would be, he has masked it in the cloak of income inequality. Let’s hope Congress and the American people see through his redistributionist cloak.
Please click on the link to view the op/ed on Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/02/25/in-asking-about-income-inequality-obama-begins-with-the-wrong-question/
Obama’s End-Run Around the Constitution (Townhall.com) February 20, 2013Posted by daviddavenport in Radio Commentaries.
Frustrated by a divided Congress, President Obama has begun to go wild issuing executive orders.
Executive orders are supposed to follow laws passed by Congress, executing what Congress enacted. Instead, Obama is using them to start new policy initiatives that he can’t get through Congress.
Recently he signed 23 executive orders on gun control, many of which go beyond any law Congress has passed. Last year he began immigration reform … again, with executive orders. Reports indicate he’s considering a new series on same sex marriage and one on energy.
Initiating policies by executive order, when you can’t provide leadership through Congress, is an end-run around the Constitution.
Someone needs to call the President on this abuse of executive powers.
Please click on the link to listen to the audio: http://townhall.com/talkradio/dailycommentary/666644