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The Supreme Court Case of the Year (National Radio Commentary / Salem-Townhall.com) March 5, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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This week the U.S. Supreme Court heard arguments in its most important case of the year:  King v. Burwell.

In some ways, it’s a simple case:  did Congress mean what it said when it provided for subsidies for low-income individuals in states that establish healthcare exchanges?  Since two-third of states have chosen not to create exchanges, the Obama administration has decided state exchange includes the federal exchange. So the Supreme Court is asked to fix what’s presented now as a “glitch” or “drafting error” in the bill.

All courts are bound to the plain meaning interpretation of laws—that words take on their ordinary meaning unless the law provides a specialized meaning. So: state means state.

But if millions lose their subsidies over this, perhaps the Court becomes nervous and decides to rewrite the law.  Maybe they fear a divided Congress won’t be able to fix it.

But the Court should do its proper job, the Congress should fix its own mistakes—and the administration should live with the consequences.

Link to Salem-Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699414

 

Jeb Bush a ‘reform’ conservative? America doesn’t need conservatism lite (FoxNews.com) February 27, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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I am wary of the adjectives Republican presidential candidates like to place in front of the word “conservative.” George W. Bush ran as a “compassionate conservative,” though after 9/11, when his administration turned from domestic policy to national security, he became better known as a neoconservative.

John McCain was a “maverick conservative” and Mitt Romney, a pragmatic businessman without a clear political philosophy, tried to market himself as “severely conservative.” And now comes the leading candidate for the 2016 Republican presidential nomination, Jeb Bush, who has styled himself a “reform conservative.”

Isn’t anyone content to be just a conservative anymore?

Richard Nixon popularized the classic Republican campaign strategy: first run to the right to secure the party’s nomination, then run toward the center to win the general election. But today’s Republican presidential candidates apparently feel the need to build all that ambiguity into their stance from the start.

Yes, I’m a little bit right, but also leaning into the center. But it doesn’t really work. It leaves conservatives rightly feeling like they’re being served conservatism lite: a third less calories than your regular conservatism but also less filling. And in the general election, the adjectives disappear anyway as the liberal opponent attacks the noun: he’s a conservative.

So now I am wary about Jeb Bush proclaiming himself a reform conservative in his big speech in Detroit recently. I get the reform part—his two signature policy platforms have been education reform and immigration reform. But his positions on those issues are not classically conservative. His idea of reform conservative feels a little to me like one of those oxymorons: jumbo shrimp or virtual reality. The dictionary definition of reform is suitably vague: making changes in order to improve something. In that sense, everybody wants to reform something. But what is conservative reform, and is that what Jeb Bush is really about?

To me, Bush’s idea of reform conservatism sounds more like big government conservatism. Take education reform for example. For Bush, who famously led such reforms as governor of Florida, it meant more government testing and accountability. It was related to his brother’s No Child Left Behind and Common Core, movements under fire among conservatives for turning K-12 education, the classic responsibility of state and local government, over to the feds. If not a philosophical dilemma, this is at least a political problem for Bush, since polls show conservatives overwhelmingly (94% accordingly a Pew Research Center poll) oppose things like the Common Core curriculum. A Bloomberg/Des Moines Register Iowa poll of likely 2016 caucus participants shows nearly 2/3 feel Bush’s positions on immigration and education reform are problematic to them.

And let’s face it, big government conservatism did not work well for Jeb’s dad and brother. George H.W. Bush, seeking a “kinder and gentler nation,” ended up with sufficient government growth that he turned his back on his no new taxes pledge and was voted out of office. Similarly, George W. Bush’s No Child Left Behind and Medicare prescription drug coverage have grown into expensive federal expansions. So conservatives are right to be wary of Jeb Bush’s reform conservatism turning out to be another form of big government conservatism—essentially using the federal government for conservative policy ends, rather than limiting government power and size.

There is a more promising version of reform conservatism promoted by some young intellectuals and policy thinkers. Their view is that conservatives need to demonstrate more specifically how conservative ideas about free markets actually help the middle and lower classes better than an overgrown welfare state. They are enamored of using subsidies, tax credits and other government tools to help middle-income households, especially. One thing they have right, I think, is that the heart of conservatism, individual liberty, has become an abstraction and people need to see how it matters in their lives. But, at this point, these ideas are more of a conversation than a movement, and are not yet ready for a prime time race to the White House.

Barry Goldwater, in some ways the father of the political conservative movement, spent a lot of time and energy countering the influence of the Eastern liberal Republican establishment and remaking the party in a more conservative image. My fear is that all these adjectives attached to conservatism today will lead us back toward a form of big government Republicanism, not forward toward greater liberty.

Link to Foxnews.com:  http://www.foxnews.com/opinion/2015/02/27/jeb-bush-reform-conservative-america-doesnt-need-conservatism-lite/

Brace Yourself For The Most Important Supreme Court Case Of The Year (Forbes.com) February 27, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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On Wednesday, the U.S. Supreme Court will hear oral arguments in its most important case of the year, King v. Burwell.  The case is most obviously significant because it could invalidate subsidies for low income individuals covered by Obamacare in the approximately two-thirds of states that did not establish their own exchanges.  This in turn could leave millions of people essentially without healthcare, unless and until Congress or the states did something to repair the problem, all of which is being worked on now.

But at a more subtle level, this case is an important indicator of what the Supreme Court is willing to do (and not do) in an era of deeply divided government in Washington.  The question here is whether the Supreme Court should play the role of proofreader or auto-corrector when Congress legislates without sufficient care and is too conflicted to address the problem itself.  You would like to think that a sweeping change such as Obamacare was worked through with great care, including lots of drafting, testimony, amendments and compromise, all the hallmarks of good legislative work.  But if you think that’s how Obamacare was adopted, your memory is faulty.  The bill itself was massive (one version ran over 2400 pages, the final 906 pages), prompting House Speaker Nancy Pelosi’s plea:  “But we have to pass the bill so that you can find out what’s in it.”  And the most sweeping social program since the 1960’s was slammed through on a straight party-line vote, with no Republican support.

Even when a bill is passed, it’s just the beginning.  Various agencies then must adopt regulations and structures to implement the law (so far 10,000 pages and still counting).  And, of course, in this case President Obama has weighed in through executive orders, unilaterally (and probably illegally) changing and delaying aspects of the law.  Even Chief Justice Roberts took it upon himself in an earlier case to give the law an extreme makeover, transforming it from an unconstitutional penalty into a constitutional tax in order to save it.

So now the Supreme Court is faced with the clear provision in the law that subsidies are available to people who live in states with healthcare exchanges “established by the State.”  Since most states elected not to establish their own exchanges, the plaintiffs argue that no subsidies should be available in those states.  It has been described as a “glitch” or a “drafting error” by Congress.  And so, the argument goes, the Supreme Court ought to fix it, and simply declare that state-run exchanges really meant to include federal exchanges as well.   To refuse to do so would be, as New York Times commentator Timothy Egan put it, “one of the most brazen manipulations of the legal system in modern times.”

In fact, it is the other side that is straining to redefine clear terms.  Courts are bound by the “plain meaning” rule of interpretation:  unless a statute provides a specialized meaning, courts should apply the ordinary meaning of the word.  Clearly, if Congress meant something other than “established by the State” it could and should have said so.  And the obvious legal approach for any court to take in such a case is to rule that the law means what it says and send it back to the legislature if they want it to mean something else.  Courts are not legislators—as Chief Justice Roberts famously said in his confirmation hearing, judges are more like umpires, calling balls and strikes.

Ah, but here’s the problem.  By pushing the bill through without compromise or support from both parties, the bill lacks not only careful drafting but also bipartisan support.  That is the blowback from a party-line vote:  no one from the other side has enough ownership to help you fix it later.  It’s like that old car mechanic commercial:  you can pay me now (upfront, preventive maintenance) or you can pay me later (expensive, or in this case impossible repairs when it blows up).

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/27/brace-yourself-for-the-most-important-supreme-court-case-of-the-year/

California Legislature on the Bleeding Edge (National Radio Commentary / Salem-Townhall.com) February 26, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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They say that California is on the bleeding edge of national change, so perhaps we should take a look at some of the 930 new laws that went on the books in 2015.

California struck its own blow for immigration reform by allowing driver’s licenses for undocumented residents.  This will be expensive, with 1.4 million new applications to be processed by new offices and personnel.

But don’t worry if you take a naked selfie in California.  A new law protects the privacy of such photos. Meanwhile, the state will be safe from plastic bags, banning them July 1 in groceries and pharmacies. Chickens are also safer, with roomier cages now legally required for egg-laying chickens, dog owners can take their pets to outdoor cafes, and thank goodness Confederate flags can no longer be sold in state souvenir shops. 

What better case could there be for a part-time legislature?   

As Mark Twain said, “no man’s life, liberty or property are safe while the legislature is in session.”

Link to Salem/Townhall audio:  http://townhall.com/talkradio/dailycommentary/699370

 

The Era of Big Government is Back (National Radio Commentary / Salem-Townhall.com) February 13, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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When President Obama released his record-breaking $4 trillion dollar budget recently, he basically announced to the world that the era of big government is back.

His fellow Democrat, Bill Clinton, famously proclaimed in his 1996 State of the Union message that “the ear of big government is over.”  And Ronald Reagan inaugurated his presidency in the 1980’s by pointing out that:

Clip: “government is not the solution to our problem, government is the problem.” https//www.youtube.com/watch?v=6ixNPplo-SU

But Obama wants to roll the clock back even further, to Franklin Roosevelt and his New Deal, raising taxes on the rich, while increasing government spending and debt.

Apparently Obama has learned nothing from his earlier big government experiments:  failed efforts to stimulate the economy and his signature Obamacare which is rife with problems and sinking in unpopularity.

Returning to big government progressivism moves the country further in the wrong direction.

Let’s hope the Republican House and Senate will stop it.

Link to Salem-Townhall Audio:  http://townhall.com/talkradio/dailycommentary/699353

 

 

 

Time to Leave Federalizing of Education Behind (Forbes.com) February 10, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Washington, D.C. has managed to take the most basic state and local responsibility—K-12 education—and federalize it at breathtaking speed over the last 12 years.  Now, with the signature piece of federalizing legislation, No Child Left Behind, up for reauthorization in Congress, it is time to put the brakes on this failed and misguided federal experiment.  In short, forget no child—what needs to be left behind is the federalizing of education.

How did this happen anyway?  Although Lyndon Johnson stuck the federal nose in the K-12 education tent in the mid-60’s, providing special federal aid for poor and disadvantaged children in his War on Poverty, the real momentum developed when President George W. Bush sought to bring his “Texas miracle” on education to Washington as the “education president.”  Bush and Senator Ted Kennedy famously got together and enacted No Child Left Behind (NCLB) in 2002, laying the groundwork for federal testing and accountability which now dominate the educational scene.

But wait, there’s more.  When, by 2012, it was clear that 80% of America’s schools would not meet NCLB’s goal of proficiency for every student by 2014, with resulting embarrassment for politicians and draconian penalties for schools, U.S. Secretary of Education Arne Duncan began issuing waivers (to over 40 states) lifting NCLB’s requirements.  If schools cannot reach the federal bar, well then the obvious solution was to lower or eliminate the bar.  But Duncan did not just waive the requirements for states, rather he did so on the condition that states agree to new conditions he sought to impose that would further change the direction of K-12 education, including strong moves toward a national curriculum (Common Core) and teacher evaluation and accountability.  These were debates properly taking shape in the states, but suddenly the Department of Education took sides and imposed a federal solution.

As South Carolina law professor Derek W. Black points out in a forthcoming issue of Vanderbilt Law Review, however, the Secretary’s conditional waivers were constitutionally problematic in two ways.  First, imposing new educational policy requirements on states through conditional waivers was a step that, under the balance of powers between Congress and an executive agency, only Congress could approve.  And second, this became a form of federal coercion on the states, essentially bribing the states with federal money to follow federal policy.  Over 40 states succumbed.  As Professor Black concludes:  “With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured:  the federalization of aspects of public education.”

As Congress debates the reauthorization of No Child Left Behind, the real conversation should be about rolling back the federal role in K-12 education.  Over half a trillion dollars in federal money has been spent on this experiment, with very little to show for it, according to the independent Center on Educational Policy and others who have studied the results.  The federal Department of Education has become, in effect, what Senator Lamar Alexander has called “a national school board” micromanaging educational policy and outcomes.  Finally states have awakened to what they have given up and there is a backlash against the Common Core, which is spreading to the NCLB reauthorization debate.

It’s time to admit a federal failure here.  Unrealistic goals were set and federal officials have done unconstitutional hand-stands to mitigate the damage.  Hundreds of billions of dollars have been spent.  Teachers and students spend countless hours teaching to the new federal tests.  Plenty of children have been left behind. Enough already.

Let’s return educational policy and authority close to home, to school districts and ultimately the states.  Let’s not reauthorize No Child Left Behind and instead begin the painful and difficult shifting of both money and authority home to districts and states.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/10/time-to-leave-federalizing-of-education-behind/

Let Them Bake Cake (or Not) (National Radio Commentary / Salem-Townhall.com) February 6, 2015

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Federal courts are moving with amazing speed to authorize same-sex marriages.  But when courts become engines of social change—as they did with abortion decades ago—they often leave a mess in their wake.

Such is the case with those whose religious views do not permit same-sex marriage but are nevertheless being forced to support it.

Take the baker in Colorado who practices his faith in his craft.  He is appealing an order from the Colorado Civil Rights Commission saying he illegally discriminated against a same sex couple when he declined to do their wedding cake.  Or other creative professionals such as photographers, florists or wedding chapel owners who made similar decisions based on their religious beliefs.

Some state governments are pushing back, with legislation that would allow business owners to decline business that violates their religious faith.  In the end, courts must balance the 14th amendment claims of same-sex marriage proponents with the 1st amendment rights of Christians.

Link to Salem/Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699327

The Era of Big Government Is Back—Or Did It Ever Leave? (Forbes.com) February 5, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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When President Obama introduced his mammoth $4.4 trillion budget this week, he effectively announced that the era of big government is back.  Even his fellow Democrat, Bill Clinton, had famously proclaimed in 1996 that “the era of big government is over.”  This followed Ronald Reagan’s warning in 1981 that “government is not the solution to our problem, government is the problem.”

But apparently Obama sees limited government as so last century.  Instead he proposes $2.1 trillion in new tax increases and spending increases of 7% over the current sequestration caps.  This accelerates the recent track on which government spending has risen 63% faster than inflation over the past 20 years.  House Minority Leader Nancy Pelosi jumped to the President’s defense, saying there is a direct connection between higher federal spending and bigger paychecks for Americans.  So a clash is looming between Democrats’ idea of government spending leading to greater prosperity and the Republican approach of giving people back more of their own money to spend the way they choose.

At a deeper level, however, Republicans and Democrats aren’t really arguing over bigger versus smaller government.  It’s really more of a question of “how much bigger” will government become.  For example, a widely accepted measure of government size is the amount of federal spending as a percentage of the nation’s gross domestic product (GDP).  That number was around 2-3% from the Founding through the New Deal, except for significant spikes during wartime.  Then beginning with Franklin Roosevelt’s New Deal, that figure grew steadily to 20%, peaking during World War Two at 41.5%.  It dipped following the war, but then resumed its steady rise, dropping some during the peace dividend years of the 1980’s and 1990’s, but rising again now to nearly 25%.  Projections show dramatic growth in the coming decades when the Baby Boomers jump on the entitlement train, living off Social Security and Medicare, or what’s left of it.

So the size of government debate is really between big and bigger, not big and smaller.   With the exception of one brief period in the Reagan administration, government size and spending grow steadily larger.  Yes, it’s true that progressive Democrats like Franklin Roosevelt, Lyndon Johnson and Barack Obama kicked it up a notch during their administrations, but Republicans haven’t historically done much about actually shrinking government.  In fact, neoconservatives and big government Republicans during the George W. Bush administration essentially changed their rhetoric away from smaller government, arguing instead that the goal should be using big government for conservative ends.   It’s as if Republicans have, perhaps grudgingly, acknowledged that big government is here to stay.

What is Republicans’ goal then, simply slowing the rate of increase?  Yes, and that is important with all the built-in entitlement increases looming, but it’s actually broader than that.  The debate is also about whether the economy is better strengthened by more taxes and spending in Washington, or by returning money to the people to spend.  It’s about whether the federal government should reach into more areas of our lives, taking over K-12 education, healthcare and the environment, areas that used to belong to state and local government.  As Lyndon Johnson’s chief domestic policy advisor Joseph Califano later admitted about the Great Society of the 60’s:  “The government simply got into too many nooks and crannies of American life.”  It’s about the growth of federal regulation and rulemaking, which is at an all-time high.

Conservatives would do better to focus on “limited government” as their plea, rather than smaller government.  Unlike a smaller federal government, that goal is both realistic and important.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/04/the-era-of-big-government-is-back-or-did-it-ever-leave/

Palestinian Statehood: Who Should Decide And How? (Forbes.com) January 9, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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You would think there would be a clear-cut definition and path for establishing a new nation-state.  But in the Alice in Wonderland world called international law, there is not.  And this very uncertainty has created an opening for Palestine to attempt to shift the political balance in the Middle East and pursue a novel “throw enough against the wall in the hope that something will stick” approach to gaining statehood.

At the risk of oversimplifying this vague and complex area of law, there are two basic approaches to becoming a state.  One, the more traditional, legal approach, is based on satisfying objective criteria established by the Montevideo Convention (1933):  (1) A permanent population, (2) a defined territory, (3) a government and (4) the capacity to enter into relations with other states. Palestine, by the way, would have difficulty establishing each of these criteria.  The other is a more of a postmodern, holistic approach:  if others treat you as a state, then you must be a state.

It is a variation on this latter approach to statehood that has thrust President Mahmoud Abbas and Palestine into the headlines recently.  First came a close vote in the U.N. Security Council on a proposal from Jordan to vote a Palestinian state into existence.  That failed by one vote, and Abbas says it will come up again soon, and maybe over and over, in the not unrealistic hope of gaining one extra vote.  Of course, even that isn’t the end of this strategy, since the U.S., as a permanent member of the Council, could and likely would veto it.

The very next day following the Security Council vote, Abbas signed Palestine onto 15 international treaties and agreements on a range of subjects, most importantly applying to join the International Criminal Court (ICC).  The idea is to keep acting like a state—a round of agreements like this was also signed by Palestine last year—and, if you throw enough against the international wall, maybe something will stick and people will finally say, yep, they’re a state.

But to join the ICC you have to be a state, which is what prevented Palestine from bringing charges against Israel in the ICC following the Gaza conflict of 2009-10.  The Prosecutor of the ICC, however, has opined that a U.N. General Assembly vote is sufficient for this purpose.  At least some version of that vote took place several months ago, with the U.N. General Assembly establishing Palestine as a non-member “observer state” like the Vatican.  Of course that vote was largely political, and made no attempt to determine whether Palestine satisfies the legal criteria for statehood.  And one could argue that being an “observer state” in the U.N. is more about observing (participating, being at the table) than official statehood.  Indeed, the U.S. State Department has now expressed the view that Palestine, under law, is not a state, notwithstanding that vote.

A final complication underlying all of this is that Palestine is a party to the Oslo Accords, which is supposed to be an exclusive effort toward a two-state solution and which explicitly provides that “Israel has sole criminal jurisdiction over…offenses committed in the Territories by Israel.”  So through the Oslo Accords, Palestine has, in effect, promised not to seek statehood by other means and further has agreed that only Israel can bring criminal cases against its people, which is what Palestine would like the ICC to do.

And you wonder why the Middle East peace process is complicated?

In all of this, a central question the law does not clearly address is who decides what is and is not a state.  Generally it would the United Nations, but I don’t think “observer state” votes in the debating club of the General Assembly really do it.  A Security Council vote that seriously considered the Montevideo criteria would be more impressive.  But, in this case, the key players have agreed that the Oslo Accords, establishing a Middle East peace process is an exclusive path to statehood.  So, in my view, Palestine would have to step up and formally renounce the Oslo Accords—highly controversial—if it wants to go its own way.

Most immediately, an international criminal court should not be wading into the delicate Middle East peace negotiations and deciding who is a state.  The Court’s own credibility, already strained by completing only two successful prosecutions of lesser players in 10 years, will continue to decline, and the Middle East peace process will be irreparably harmed.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/01/09/palestinian-statehood-who-should-decide-and-how/

Best Business Climates are Freer and Cheaper (National Radio Commentary / Salem-Townhall.com) January 6, 2015

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Forbes’ study of best and worst states for business always provides a useful annual check-up on the state of the country as well as the economy, and this year’s list is no exception.

For example, 8 of the 10 best states for business this year are west of the Mississippi, with Utah and North Dakota leading the way.  By contrast, 8 of the 10 worst states for business are in the East.

The regulatory environment is a big factor, with “big brother” states like New York coming in at number 17 and California at 37. Business costs are right up there in importance, with South Dakota and Nevada leading the way with low overhead.

The fact is that businesses, like Americans broadly, are voting with their feet, and moving West toward greater opportunity and less regulation. Too bad that highly regulated states just don’t get it—or at least they elect leaders who lack the will to do something about it.

Link to Townhall.com audio:  http://townhall.com/talkradio/dailycommentary/699296

 

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