The More People Know Obamacare, The Less They Like It (Forbes.com) May 30, 2012
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For constitutional lawyers, the federal takeover of healthcare is the gift that keeps on giving. Even before the U.S. Supreme Court has issued its opinion on the constitutionality of the Patient Protection and Affordable Care Act, 43 Catholic charities and schools have brought a federal lawsuit challenging a separate federal mandate to provide contraceptives. And the latest is a canonical case brought by “The Exorcist” author William Peter Blatty over Georgetown University’s hosting of a speech by Kathleen Sebelius, Secretary of Health and Human Services, who is enforcing the contraceptive requirement.
When the federal government attempts to take over something like education or health care that has constitutionally and traditionally belonged to the states, its one-size-fits-all pair of regulatory shoes starts pinching a lot of feet. Deciding questions such as contraceptive requirements in health insurance at the state level not only brings the debate literally closer to home, but leaves room for more liberal or more conservative states to address these things according to their own political and cultural values. But now that healthcare is becoming a federal matter, every aspect of it necessarily becomes “a federal case.”
So now, in addition to the imminent Supreme Court decision on the constitutionality of the individual mandate and the federal mandate that states change their Medicare policies, we also have church-state healthcare problems as well. President Obama and Secretary Sebelius tried to finesse this question by saying churches would not have to provide contraception in their insurance, but they would not extend that policy to church-related organizations such as charities and universities. Now Notre Dame and others have sued in federal court, charging that such a federal mandate violates their First Amendment freedom of religion, requiring them to provide coverage that goes against their own religious policies.
Mr. Blatty’s case says this is bigger than federal, since his suit goes to the Vatican, as well as the Archdiocese of Washington, D.C., asking that Georgetown no longer be considered Catholic. Blatty’s suit will not be popular on campuses, of course, since academic freedom claims the need for a diversity of speakers, but it asks the essential question: What does it mean to be a Catholic university?
Tallying up the scoreboard of where the federal takeover of healthcare has brought us so far:
–The general public doesn’t like it. Its polling numbers have dropped steadily, now 52%-41% against. The more people know, the less they like it.
–Over half the states have brought federal lawsuits opposing it on constitutional grounds.
–The Catholic Church, and other religious organizations, doesn’t like Washington telling them they have to provide controversial coverage that violates church doctrine.
–And economists now tell us that federal healthcare will cost more, not less, than what we have now. A recent study by Charles Blahous, trustee of the Social Security and Medicare funds, indicates that, rather than saving money, the new health reform law will add $340 billion to the deficit.
At this point, there are only two “exorcists” capable of expelling these demons. First, and more likely, the U.S. Supreme Court could decide that the new healthcare law goes too far and is unconstitutional. This is not nearly as unlikely as some once thought and, given the mounting problems with federalizing health care, it could be a welcome relief. Although President Obama and his colleagues have tried to build a rhetorical barrier against such a decision, arguing that it would fly in the face of precedent, in fact the way these things work is that federal power keeps growing until it simply grows too far, it reaches a tipping point, and a more conservative opinion is issued. The justices asked precisely these kinds of questions in oral argument: if this is commerce, what limits would be left, and, if this isn’t coercing states to follow federal policy, what would be?
The other potential “exorcist” is Congress itself stepping up to repeal the health care law. The House actually did vote to repeal it last year, though the Senate voted against on a straight party vote. Barring significant gains in Republican Senate seats in the fall elections, this would be a tougher route to go.
In an election year, it is easy to find political motives for most anything. But when you have economists estimating rising costs, public opinion polls heading steadily south, federal lawsuits springing from both the commerce and spending power clauses, and now serious questions about religious freedom, it seems like time to at least pause and rethink, if not exorcise some of these federal healthcare demons.
To view the article on Forbes.com please click on the link: http://www.forbes.com/sites/daviddavenport/2012/05/30/the-more-people-know-obamacare-the-less-they-like-it/
College Campuses as Political Battlegrounds Over Faith (Forbes.com) May 14, 2012
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The month of May is not only about final exams and graduation ceremonies on our nation’s college campuses. AtLibertyUniversityand Vanderbilt recently, they have also been busy with the continuing debate over the place of faith in the public square.
Mitt Romney was the weekend commencement speaker atLibertyUniversity, founded by the evangelical Christian leader, Jerry Falwell. While Romney had some predictable words of encouragement for the graduates, no one doubted that the primary agenda for his appearance was the opportunity to strengthen his credentials with evangelical Christian voters, a crucial support group for his presidential campaign.
It would be difficult to overstate how important this group has become to a Republican presidential candidate. Over 50% of Republican primary voters this year were identified as evangelical Christians, which accounted for much of Rick Santorum’s surprising strength. When Karl Rove spoke of mobilizing George W. Bush’s base, this was the main group he sought to turn out. So these are voters that Romney needs to have energized on his behalf, not just favorably disposed.
But evangelicals have not been enthused about Romney. Despite being a man of faith, and a lay leader in his church, the evangelical language is not Romney’s native tongue. As a Mormon, Romney’s faith is more lived out in his daily walk as a matter of ethics and morality, whereas evangelicals want to hear about it. Theirs is a confessional faith, one that is preached, not just lived. At the edges of evangelicalism, some consider Mormonism more of a cult than a Christian denomination.
Specifically evangelicals want to hear that Romney’s faith translates directly into his positions on key social issues such as abortion or same-sex marriage. It will be tricky for Romney to win their support while at the same time reaching out to moderate voters in the center, whose very different preference is for a candidate who is religious, but not too religious. Polls consistently show that moderates and independents prefer a candidate’s faith to produce strong values and moral behavior, but not one that looks to God or church leaders for policy positions.
Although Romney touched several important bases in his address atLiberty, one speech isn’t going to hit all the evangelical hot buttons. He did talk about the importance of culture, which is a bedrock issue for evangelicals, but his idea of culture was essentially the primacy of family. On that subject, he did contrast his position with President Obama’s, saying marriage is between a man and a woman, but most of his talk about family concerned broad notions few would disagree with.
In the end, perhaps the most important statement he made to evangelicals was simply to show up at one of their bastions of strength, Jerry Falwell’sLibertyUniversity, but he has much more to do to win the enthusiasm of Falwell’s followers.
Meanwhile the Tennessee Legislature and Governor were in engaged in their own battle over faith atVanderbiltUniversity. Vandy has recently taken the official position that campus Christian groups cannot require that their leaders share the group’s faith and values, mandating a policy of nondiscrimination to “take all comers.” As these groups have pointed out, such a policy is not required by federal law and, in many cases, compromises the entire purpose of the organizations.
The Tennessee Legislature responded by passing a “religious freedom bill,” exempting religious groups from non-discrimination policies at colleges and universities in the state. Republican Tennessee Governor Bill Haslam said he disagreed with Vanderbilt’s policy but, as a conservative who believes in limited government, he vetoed the bill, seeing no reason for the state to tell a private university how to run its own affairs.
Vanderbilt, ironically founded as a Methodist institution, has essentially said through this policy that most Christian groups, especially those with a focused faith-based mission, are unwelcome on their campus. This is part of a larger, misguided effort to say that every position in every organization of every university must be open to every student. There is no longer room for a diversity of institutions, or even a diversity of student organizations within an institution, but only an “all comers” philosophy of nondiscrimination everywhere. Plain vanilla is now the only acceptable flavor.
America’s colleges and universities, unfortunately, continue to serve as politicized battlegrounds for these larger questions on the role of faith in the public square. With same sex marriage gaining momentum, and a divisive presidential campaign in the air, it will be politics, politics, politics on our nation’s campuses for the foreseeable future.
To go to the Forbes.com site to view the article please click on the link: http://www.forbes.com/sites/daviddavenport/2012/05/14/college-campuses-as-political-battlegrounds-over-faith/
Californians want to change initiative process, with Lenny Mendonca (Sacramento Bee) May 2, 2012
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When state Senate President Pro Tem Darrell Steinberg told the Sacramento Press Club recently that he thinks the state’s initiative process needs to be changed, people took note.
A good place for the senator and his colleagues to start would be, well, with the voters themselves.
The California initiative process was designed 101 years ago to put greater lawmaking power in the hands of the people. History tells us that the voter initiative was adopted because the people of California in the early 20th century didn’t always trust their elected officials – and certainly wanted to act on their own behalf if elected officials did not.
Californians in the early 21st century haven’t changed much. How do we know?
We asked them. At California Forward, we’ve been talking with people for the last three years. Californians are frustrated with their government and believe it can and must do better. In fact, voters are so eager for change and they seem ready to take ownership to make sure it happens.
About 10 months ago, more than 400 “regular” Californians from around the state gathered for a weekend in Torrance to discuss major issues facing California. It was the first-ever California Deliberative Poll, sponsored by reformers, academics and foundations. A random sample of Californians sat down, discussed and analyzed some important matters. It was a remarkable experience in honest-to-goodness democracy.
James Fishkin, who has conducted deliberative polls all over the world through Stanford’s Center for Deliberative Democracy, spearheaded the California Deliberative Poll titled, “What’s Next CA.” (For more information, go to www.nextca.org.) His conclusion of how these Californians view government?
”They believe it is the people’s process.”
People like the initiative process, but find it confusing and in need of improvement. But while Sen. Steinberg understandably thinks of ways the Legislature could help with the process, the public had a much different take.
Seventy-six percent of them wanted to create a formal review process to allow an initiative’s proponents to amend an initiative after public input. In other words, if the language isn’t clear, let’s give the proponents time to make it so. Clarity is important for an informed electorate.
Eighty-five percent favored requiring all ballot measures that require new expenditures to indicate how we will pay for them. That’s common sense. People want to make sure that if the state is going to make a commitment, everyone knows how that promise will be paid for.
Ninety-one percent said they want to know who is paying for each ballot measure and agree it is a good idea to publish the top five contributors for and against each measure in the ballot pamphlet.
There also was strong consensus that the Legislature should keep its distance from the initiative process. A strong majority of Californians do not believe lawmakers should be able to put a competing measure on the ballot with a majority vote or to remove a measure from the ballot by enacting it into law. Once the people have spoken, more than half said they did not want state elected officials to be able to amend an initiative.
Interestingly, after a weekend of discussion with other voters and experts, more Californians walked away satisfied with the initiative process than those who walked into the event.
It also is important to note that while 70 percent of Californians don’t think the Legislature is getting important things done, they wish lawmakers could. And when asked to fix the Legislature, they had some interesting remedies in mind.
Eighty percent were in favor of lengthening Assembly terms from two to four years and the Senate terms from four to six. That would mean fewer elections, less fundraising and, presumably, giving elected officials more time to get some work done.
Seventy-one percent thought that expanding the Assembly from 80 to 120 members was a good idea because it would mean fewer people being represented by Assembly members, which could, in turn, mean better service for the constituents from the elected officials.
Californians are willing to improve the initiative process, and improve the legislative process. But voters don’t want to give lawmakers more control of the voters’ process.
At California Forward, we have been working hard to help fix our state. We started by listening to Californians so we could make sure that “reforms” are predicated on the public interest. Their expectations are reasonable:
• They want government to get the job done.
• They want transparency and accountability.
• And in a state growing in complexity every day, they want decisions made closer to where they live – so they can keep a better eye on those making the decisions on their behalf.
Sen. Steinberg is understandably frustrated. Governing this state is hard work. The people legislators serve are frustrated, too.
But they see a way out. Their answer is to give lawmakers the tools to do their job. And for the voters to keep their own tools just in case.
To view the article please click here: http://www.sacbee.com/2012/05/02/4458053/californians-want-to-change-initiative.html#storylink=cpy
The Supreme Court Will Decide a Federal-State Tug of War (Forbes.com) April 24, 2012
Posted by daviddavenport in Newspaper Columns/Essays.Tags: Supreme Court
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The U.S. Supreme Court is closing its term with a bang, having devoted several days to the historic battle over healthcare and concluding this week with the legal challenge toArizona’s immigration law. But below the surface, these landmark cases are not just about newly enacted laws. In fact, these lawsuits constitute major battles in a larger tug-of-war between state and federal power.
The healthcare case has brought the commerce clause into popular conversation, since the mandate for individuals to buy health insurance is defended by the federal government’s authority to regulate matters affecting interstate commerce. Is no commerce (refusing to buy health insurance) commerce? And if the federal government can regulate that, is there any limit left to its power under the commerce clause? Several justices asked the government lawyers to articulate a “limiting principle,” a query that could hardly have been surprising, yet was never satisfactorily answered.
But at least as important to states is the provision of the new healthcare law that would give them new federal money for state Medicaid programs, but with powerful strings, requirements, and additional expenses attached. This clever deployment of federal power to regulate health and general welfare, a matter belonging to the states, is defended by resort to the Congressional spending power. The Supreme Court has said that Congress may place conditions on the use of federal money by states, but not so heavily as to constitute “coercion.”
You may wonder, for example, how K-12 education, a classic state and local policy matter, has become federalized through “No Child Left Behind” and “Race to the Top” reform programs. The answer is: through the Congressional spending power. The feds, in effect, bribe states to follow their ideas about education reform by putting out precious grant money to cash-starved states and school districts. As some of the justices asked in oral argument, how could states not feel “coerced” to follow federal rules at the risk of losing the largest grant program they now receive fromWashington?
Tallying our inventory of federal challenges to state power, so far we have the most important commerce clause litigation since the New Deal, and the largest case questioning possible federal coercion of states in 25 years. Then comes theArizonaimmigration case, in which the federal government has deployed its preemption power in an attempt to stopArizonafrom increasing enforcement against illegal immigration, an area in which the federal government has taken the lead but, by all accounts, has woefully underperformed.
Here the federal government’s power comes from the supremacy clause, establishing that federal law is the supreme law of the land. But states are still free to operate in those areas unless federal law “preempts” the field and states are not acting in conflict with the federal approach. AsArizona’s attorney, Paul Clement, pointed out: “This is another federalism case. This is not all about immigration. It’s really about the relationship between the federal government and state government.”
Next up, perhaps next term, will be same sex marriage cases, which again raise fundamental questions of federal and state power. Who decides what the law of marriage is, what marriage itself is? Is that a question for states or for the federal government? And surely someone will challenge the federal takeover of K-12 education through reform and testing laws such as “No Child Left Behind” and “Race to the Top” as unlawful exercises of “coercive” federal spending powers.
Beginning with the “New Deal” legislation of the 1930’s, we have witnessed a steady expansion of federal power, much of it at the expense of state sovereignty. We may well have reached a tipping point where the Supreme Court will say “enough”, and in at least one of these cases—healthcare, immigration, same sex marriage—federal power will be pushed back.
Do we really needWashingtonto tackle every question? Is everything “a federal issue?” Is there no room for variety among the states, especially on social and values questions? DoesKansasneed to follow everythingCaliforniadoes? And if so, will we reach a point where state governments themselves—which were an essential part of our founding and federalist system—seem like unnecessary layers of middle management? Stay tuned for the Supreme Court’s response this summer.
To view the article in Forbes, please click on the link: http://www.forbes.com/sites/daviddavenport/2012/04/24/the-supreme-court-will-decide-a-federal-state-tug-of-war/
Global Governance Hits Sacramento (Advancing a Free Society, Hoover Institution) February 22, 2012
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If you would like to see how the global governance movement could impact theU.S., look no further thanCalifornia’s capital city,Sacramento. Mayor Kevin Johnson recently received a warning letter aboutSacramento’s drinking water and sanitation—not from a constituent or city councilmember, not even from a legislator across town—from the Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation of the United Nations Human Rights Council.
Yes, there is such a person and she believes she has some jurisdiction over you! Ms. Catarina de Albuquerque visitedSacramento“under [her] mandate,” where she met with a community of homeless people. She saw a “lack of access to adequate water and sanitation and adequate housing.” She also found that parks, with their public restrooms, were closed at night, and thatSacramento“criminalizes public urination and/or defecation.” All of this causes her to conclude that international human rights may be violated.
This is one of those classic cases where theU.S.signed, but did not ratify, an international treaty. But one little-known implication of that, under international law, is that the signer agrees not to do anything to defeat the object and purpose of the treaty pending a ratification decision. This is why President Bush “unsigned” the treaty creating the International Criminal Court, which President Clinton had signed but the Senate had not ratified. I think there’s plenty of room to argue here that Sacramento’s sanitation and water problems, while serious, are not defeating the treaty, but then the U.N. Human Rights Commission doesn’t usually worry a lot about possible limits on its jurisdiction.
Apparently it’s time to rewrite those American Government textbooks about federalism. Yes, some issues are still local, some state and some federal. But if you sign one of those treaties the global governance people are forever advancing, local issues can become global in scope. In the end, it seems clearly preferable to take your beating for not signing apparently inconsequential, feel-good treaties, rather than have the U.N. show up to inspect your toilets.
Please click here for a link to Advancing a Free Society: http://www.advancingafreesociety.org/
Vote of Confidence (Hoover Digest, 2011 No. 4) October 12, 2011
Posted by daviddavenport in Newspaper Columns/Essays.Tags: Presidential Elections
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Another presidential season, another attempted end run around the Electoral College. Let’s be careful. Even now, it has its uses.
While candidates are busy raising money and positioning themselves for the first primaries, one early maneuver in the 2012 presidential campaign is taking place in state legislatures: consideration of the National Popular Vote Bill. California recently became the eighth state to enact this legislation, which would form an interstate compact requiring member states to cast their electoral votes for the winner of the national popular vote, effectively eliminating the Electoral College without the transparency and burden of amending the U.S. Constitution.
But those who are frustrated by the Electoral College—especially Democrats who feel Al Gore unfairly lost the presidency in 2000—overlook the real benefits it provides, as well as its importance to our federalist system. State legislatures should count the cost very carefully before overthrowing the Electoral College in favor of a national popular vote.
For starters, a single national popular vote would alter the way presidential campaigns are conducted. Under the Constitution, there are really fifty-one separate state elections (plus the District of Columbia), and candidates compete aggressively in any state where they might win electoral votes. In the last week or two of a presidential campaign, candidates are likely to cross the country, seeking to win electoral votes in ten to fifteen key battleground states. This keeps the campaign alive in virtually every geographic region and in contested states both large and small. Candidates are forced to address regional issues and local voters as they seek to win the necessary electoral margin.
By contrast, a campaign that is based solely on the national popular vote would be conducted very differently. Candidates would concentrate their efforts in large metropolitan areas, where voters are highly concentrated, and the premium on impersonal media campaigning, whether through older media such as television or new media such as Facebook and Twitter, would greatly increase. Can one really argue that spending more money to capture digital media followers, and conducting more televised events in New York or Los Angeles, creates a better campaign for voters?
The problem of recounts, alone, should give a state legislator pause about voting for the National Popular Vote Bill. Votes must be counted and reported at some stage, and doing so at the state level means the extent of any recount is thereby limited. In 2000, for example, the Florida recount was difficult and lengthy, but nevertheless contained to one state. Imagine the likelihood, then, of a nationwide recount if state electoral votes were essentially irrelevant, as they would be under the National Popular Vote legislation. A national recount would certainly take many months to complete, creating uncertainty about identifying and seating a new president on a timely basis. Given the litigious nature of recent elections, such a prospect is hardly remote.
Ironically, one of the arguments in favor of the National Popular Vote Bill is that it would make every vote count and, in that sense, be fairer than the present system. But in the end, the new approach essentially trades one kind of fairness for another. Imagine, for example, a Virginia voter who is a Democrat and her state is carried by the candidate of her party. But if the Republican candidate wins the national popular vote, the elector in her state will actually cast “her” vote in favor of the Republican. What is fair, or even representative, about that? Such are the vagaries of tinkering with the two-hundred-year-old electoral system.
In a larger sense, this end run around the Electoral College would also kick down an important pillar of our system of federalism. The U.S. Constitution does not establish a pure democracy, but rather a federal republic. The genius of a republic is that while not every element is purely democratic, several checks and balances, as well as intentional balances of power, work together to make certain that the “cool deliberate sense of the community” is carried out, as it says in Federalist No. 63. Roles are assigned to both the people and the states. For example, the U.S. House of Representatives is based upon population and is referred to as “the people’s House,” but the U.S. Senate is based upon state representation. Similarly, in electing a president, there is a role for the people (the popular vote) and a role for states (the electoral vote). These checks and balances of constitutional federalism should not be easily bargained away by means of an interstate compact.
Indeed, those who feel the present system of voting is unfair have two constitutionally proper remedies, both of which are superior to the end run of the National Popular Vote Bill. First, they can amend the Constitution and eliminate the electoral system in a straightforward and transparent way. Of course, this would require an affirmative vote of two-thirds of each house of Congress and approval by three-fourths of the state legislatures, an intentionally difficult bar to reach.
A second, more readily available alternative is to encourage states to move away from their winner-takes-all method of allocating electoral votes. Under the Constitution, states are free to decide how to allocate their electoral votes, according to their popular vote. All but two states allow the winner of their popular vote to receive all the state’s electoral votes; the remaining two, Maine and Nebraska, allocate electoral votes according to the winner of the popular vote in each congressional district. This would address a primary concern of some who seek reform by making presidential elections more competitive in states where one party dominates electoral politics. For example, in California, a state rich in electoral votes but dominated by one party, allocating electoral votes by congressional district would create competition in many regions of the state and attract candidates to come more frequently and campaign. If electoral reform is needed, this would be preferable from almost any point of view.
The National Popular Vote Bill is gaining some bipartisan momentum by concentrating on the superficial fairness of a popular vote and by ignoring the practical advantages of the Electoral College and the deep and longstanding values of the federalist system. When states having enough electoral votes to win an election (270) have signed, the compact goes into effect. The bill raises sufficient constitutional questions that it will doubtless be challenged if and when it becomes effective. In the meantime, one can only hope that enough state governors and legislators will see through the superficial appeal of the bill and, as Benjamin Franklin urged, keep the republic.
To link to the article in the Hoover Digest, 2011 No. 4 please click here: http://www.hoover.org/publications/hoover-digest/article/95536
Governor could improve voters’ trust in government w/Lenny Mendonca (San Francisco Chronicle) September 28, 2011
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Gov. Jerry Brown says he has 600 bills on his desk, but many he will not sign because “there’s not 600 problems that we need those solutions for.” We suggest he locate and sign two bills, SB14 and SB15, that help solve two of his biggest problems: the annual budget mess and the lack of public trust in Sacramento’s leadership, which voters say are closely linked.
Performance-based budgeting, the focus of SB14, has been recommended in California by independent commissions for years. It requires the state to identify program objectives when it spends money, as well as how much meeting those objectives should cost, and requires analysis of whether these goals are met. This approach is not fancy or complicated – in fact, it’s Budgeting 101 in the private sector, and 25 states already use it in some form.
SB15 focuses on another big problem by requiring multiyear planning for budget revenues and expenses. The state needs tools to get a handle on its damaging boom-or-bust tax and spending cycles, and this is a good start. Again, you’d be hard-pressed to find major entities, public or private, that don’t do this, and it is high time it be required in California.
In one sense, these bills represent basic blocking and tackling, fiscal reforms that the state sorely needs. But at a broader level, signing them sends a message to frustrated Californians that Sacramento will get its fiscal house in order and begin to rebuild trust with the people. We co-chaired California’s first-ever statewide deliberative poll this summer, in which a scientifically selected, random sample of 412 Californians was given an in-depth opportunity to deliberate on the state’s problems and potential solutions. It wasn’t a pretty picture on the problem side:
– More than 2 out of 3 California voters question whether the Legislature can “get important things done.”
– Nine out of 10 voters don’t trust the Legislature to make difficult budgeting decisions without showing exactly how major new programs or tax cuts will be paid for.
– Voters believe 39 cents of every new tax $1 will be wasted.
Still, these weekend deliberators said, they have faith that things can be changed and improved, calling for precisely the kind of measures now on the governor’s desk, and then some:
– 83 percent said each annual budget should be accompanied by a long-term plan for revenue and expenses (as called for in SB15).
– 88 percent would require legislators to say how they will pay for new programs or tax cuts of $25 million or more.
– 84 percent would limit one-time revenue “spikes” to one-time expenditures, such as paying down debt or filling the state rainy-day fund.
In effect, Californians were saying to their Legislature: We want to trust but verify good fiscal practices. And, by the way, with greater transparency and controls of these kinds, the people said they were optimistic that many of the state’s problems could begin to be solved.
Perhaps California has embarked on a season of reform – beginning with redistricting and open primaries on the political side, and now with an opportunity to enact performance-based budgeting and long-term financial forecasting on the fiscal side. These small steps could be the tugboats that move our ship of state in a new direction, and begin restoring people’s trust and confidence in California governance.
David Davenport, a research fellow at the Hoover Institution, and Lenny Mendonca, a director of McKinsey and Company, co-chaired the bipartisan California Deliberative Poll project (www.nextca.org).
This article appeared on page A – 10 of the San Francisco Chronicle
Gov. Jerry Brown has bills to sign but does he have the right bills? Hector Amezcua / AP
Palestinians eye a can of courtroom worms (The Washington Times) September 22, 2011
Posted by daviddavenport in Newspaper Columns/Essays.Tags: International Law
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One interesting question raised by the Palestinian statehood initiative at the 
United Nations is how this will affect the role of the International Crimical Court (ICC) in skirmishes between the Israelis and the Palestinians in Gaza and in other conflict zones. Some assert that triggering ICC prosecutions of Israeli soldiers and government officials for war crimes is a primary motive behind Palestine’s push for statehood. But as is often the case in the Middle East, things are more complicated than they appear.
The Palestinian Authority has been pounding on the ICC prosecutors door since January 2009, trying in vain to trigger an investigation into Israel’s alleged war crimes and crimes against humanity during “Operation Cast Lead” in December 2008. The prosecutor of the ICC initially responded that, because Israel is not a party to the court and the Palestinian Authority is not a state, he had no jurisdiction to investigate. But a few weeks later, he reconsidered, and said he would look more carefully at whether the PA might have enough earmarks of a state to bring an ICC claim.
Following an almost bizarre process, the prosecutor has now been thinking about this question for more than 2 1/2 years. He invited briefs and memoranda on the question, many of which he posted online; he held a forum in which the matter was debated (what prosecutor hosts in-house salons to decide whether to bring a case?); and still no decision. What does that tell us? It may tell us this presents complex policy questions but as a legal matter, his first impression that there is no jurisdiction seems obviously right. More likely it tells us this is a political can of worms that he would like to kick down the road until his term ends next year.
Criminal courts are not proper venues to sort out thorny political, diplomatic, military and strategic questions that characterize the decades-long conflict between Israel and the Palestinians in Gaza and other conflict zones. Criminal judges simply do not have the background and expertise to handle such questions, and empowering an independent prosecutor to run around the world turning conflicts into criminal charges does not serve anyone.
Meanwhile, back at the U.N., it appears the United States is prepared to veto actual statehood for the Palestinians at the Security Council, so that “observer statehood” from the General Assembly is the most likely outcome. Can an “observer state” of the U.N. accede to the Treaty of Rome, which created the ICC, and therefore bring a matter before the prosecutor for investigation? And who decides that? These questions are more difficult than they may seem.
It appears that U.N. officials are already running for cover when such questions are asked. Secretary-General Ban Ki-moon has declined to state his position on the matter, though there are unconfirmed reports that he has sought a legal opinion that he would not need to make that decision. Another U.N. official has reportedly said that the secretary-general should accept a request from an “observer state” to join a treaty on file with the U.N., assuming the Palestinians will surely make one. If it takes a prosecutor two or three years to decide whether a nonstate might have jurisdiction to bring a complaint to the ICC, imagine how long this U.N. dance might go on.
Further, the Treaty of Rome is clear that the court does not have retroactive jurisdiction, so a new state party could not bring a matter from the past (Operation Cast Lead in 2008-09) before the court. So even joining the ICC would not enable the Palestinians to bring a matter to the court immediately. And then there are still very difficult territorial questions that would should be resolved – for example, who actually “controls” Gaza? Further complicating matters, the U.N. Security Council has the power both to initiate and to halt an ICC case. Would the United States try to protect Israel from ICC prosecution through the Security Council? Could it get a majority of council votes to accomplish that? As a new party to the court, would the Palestinians investigate their own alleged war crimes and crimes against humanity?
All this underscores the importance of settling statehood through a diplomatic process, not through appeals to U.N. bureaucrats and criminal courts, where the end result is unanswered questions and unintended consequences.
To view the article please click: http://www.washingtontimes.com/news/2011/sep/22/palestinians-eye-a-can-of-courtroom-worms/
Republicans’ Primary Choice: The Constitution or the Money (Washington Times) May 17, 2011
Posted by daviddavenport in Newspaper Columns/Essays.Tags: Education Policy
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Perhaps no issue better reveals one of the growing divisions in the Republican Party than education policy. It wasn’t that long ago – 1996, in fact – that the party platform called for the elimination of the U.S. Department of Education in favor of a smaller federal government and greater power for states. But in the past decade, beginning with President George W. Bush’s No Child Left Behind Act in 2001, Republicans have seemed to be challenging Democrats to see who can win the misguided race to federalize education…
Full article available at http://www.washingtontimes.com/news/2011/may/16/republicans-primary-choice-the-constitution-or-the/
How to Lose the Republic w/Gordon Lloyd (San Francisco Chronicle) April 12, 2011
Posted by daviddavenport in Newspaper Columns/Essays.Tags: Public Policy
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When Benjamin Franklin was asked what kind of government the newly signed Constitution established, he responded, “A republic, if you can keep it.” The National Popular Vote bill, recently introduced in the California Legislature, is a poster child for how to lose the republic.
The genius of a republic is that it combines checks and balances along with structures of stability to temper pure democracy. Specific elements – such as the composition of the U.S. Senate or the functioning of the Electoral College or assigning roles to states as well as to the federal government – may seem obstructionist or even anti-democratic on their own, but they function together to assure that the deliberate sense of the people is carried out in a stable, orderly way. But with 2012 presidential politics already in the air, those who fear the Electoral College seek to circumvent it through a bill that would require state electors to vote for the winner of the national popular vote.
This is a clever attempt to eliminate the role of electors – required by Article II of the Constitution – and even the role of states in national elections without the difficult and more deliberative (and transparent) process of amending the Constitution.
Because we are a nation of states as well as people, the Constitution provides a role for both in the election of a president, a national popular vote and a state electoral vote. Before we effectively do away with the electoral vote system, we should consider several practical benefits it provides even today:
– It alters the way candidates campaign, requiring them to seek electoral votes all over the country, rather than concentrate on a few large population centers.
– It limits the uncertainty of any recount to one or two states, rather than the national recount we would otherwise see.
– It also makes more difficult the proliferation of candidates many countries experience in a national popular vote.
So why have a Republican and a Democrat joined to introduce the national popular vote bill in California? Their primary concern seems to be that California get more attention in presidential campaigns – presumably more candidate visits and television commercials (the latter a mixed blessing in hotly contested states, we hear). Then, in a year when the election may be close, there are fears of a repeat of 2000 when Al Gore won the popular vote, but George W. Bush won the presidency. This has happened, by the way, only four times in our history, leaving a “success rate” of over 90 percent.
Is that a sufficient case to allow an end-run around the Constitution and the erosion of the republic? We think not.
If there is to be electoral reform, then let states consider assigning electoral votes by congressional districts, rather than winner-take-all, as Nebraska and Maine now do. Or let them challenge the Constitutional system directly through the amendment process. In the meantime, let’s follow Benjamin Franklin’s admonition and keep the republic.
David Davenport is a research fellow at the Hoover Institution. Gordon Lloyd is a professor of public policy at Pepperdine University.
To view the article: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/04/12/EDNJ1IUBJ2.DTL
