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/

Ironically, two other European countries, Germany and Sweden, have pursued austerity successfully and gained stability and growth. The problem in countries like Greece and Spain—and, to some degree France—is that they started so deeply in a fiscal hole that their austerity measures were not enough.

Increasing government spending and debt has done very little for the U.S. economy short-term, and has kept a lid on long-term growth. It’s always easy to vote out leaders who administer tough medicine, but the world economy is likely to pay a high price.

To listen to the audio please click on the link:  townhall.com/talkradio/dailycommentary/641292

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/

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 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/

Although the legal answer was clearly NO, he faced political pressures to acknowledge Palestine as a state, and to bring Israel, under the jurisdiction of international criminal law.

Finally this month he said no, Palestinian statehood is a question for the United Nations, not a criminal court, and therefore Palestine’s complaint against Israel could not be taken up.

There are good reasons why the U.S., Israel and 70 other nations have not joined this Court because, like many international tribunals, it is often more about politics than law.  It took far too long, but at least they got this one right.

To listen to the audio please click on the link:  http://townhall.com/talkradio/audioplayer/639975

Business leaders are out to make things work, to create an environment for success.  Philosophical conservatives want to see their principles heard and embraced. 

As Romney says, his pragmatic approach addresses issue number 1 in the campaign: the economy—and it will connect well with centrist voters in the fall.  But to cap his successful run for the nomination, he should also make clear the deep principles in which he believes.    

And he can nominate a strong philosophical conservative for vice president, all of which positions him to be a very serious contender in the fall.

To listen to the audio please click on the link:  http://townhall.com/talkradio/dailycommentary/637674

But, in fact, the case represents what author Malcolm Gladwell would call a “tipping point.” Federal power has grown steadily until, as some justices asked, what limits would be left on Congress if this went forward?

In fact, there are two constitutional tipping points in this case: stretching the commerce clause to require individuals to buy insurance, and expanding the Congressional spending power so the federal government may control state medicare programs.

Here’s hoping the Court will pull us back from the constitutional brink, which is the role it should play.

To listen to the audio please click on the link:   http://townhall.com/talkradio/audioplayer/637526

The real problem here was Palestine’s unsuccessful effort to find a legal hole through which to pound a political peg.  A court that prosecutes individuals for criminal liability is the last place where one would countenance teleological and expansive notions of jurisdiction.  Those debates belong in political bodies, not in criminal courts.  This was, of course, part of Palestine’s larger campaign to find international institutions that might punch its ticket on the road to statehood, a project that has stalled out at the ICC and elsewhere.

So, what now?  Surely Ocampo’s decision is binding on the Office of the Prosecutor, practically if not legally.  How can a prosecutor undertake this bizarre process of accepting submissions from nearly everyone, posting them on the Internet, hosting salons, and sitting on the question for three years, only to reverse itself later?  If it is to be credible, the OTP cannot reconsider this without further action by a political body such as the United Nations.  And Ocampo’s suggestion that the Assembly of States Parties might also “in due course” or “eventually” address the matter was mentioned following his guidance that all this requires statehood action by the United Nations.  Surely this means that ASP review would only be to implement any action by the U.N.; nothing in the Rome State implies any larger ASP role in statehood matters in any event.

Importantly, any future action toward statehood could only enable Palestine to bring the Court a situation after statehood is determined, since the ICC is unable to take up matters retroactively.  Thus, this is clearly the end of the line for any ICC complaints about the events raised in the PNA’s declaration of 2009.

To view the op/ed please click on the link:  http://opiniojuris.org/2012/04/06/the-icc-and-palestine-a-response/

Finally this week the Prosecutor announced that he would not pursue the investigation of Israel “for acts committed on the territory of Palestine since 1 July 2002.” For now, this closes off yet another legal front of attack on Israel, and also thwarts another end-run by Palestine around the path by which Palestinian statehood is supposed to be resolved; namely the Middle East peace process and the United Nations.

The interesting question is why it took so long for the Prosecutor to reach what seemed like a no-brainer outcome from the start. In January 2009, the Palestinian Minister of Government filed a submission with the ICC asking the Court to take jurisdiction over Israel’s actions in Gaza. But the Court’s own rules require that any matters submitted must come from a “State.” Since Israel is not a party to the treaty creating the Court (nor is the U.S. and 70 or so other nations), and since Palestine is neither a party nor a State, it seemed obvious to most international lawyers that the ICC had no jurisdiction over the matter.

This is precisely what Prosecutor Luis Moreno-Ocampo concluded at first, that he had no jurisdiction. But a few weeks later, he reversed field and said he wanted to think further about whether Palestine might have sufficient earmarks of a State to submit a case to the Court. And so the hunt for those earmarks began. Some argued, for example, that because Palestine walks like a state and talks like a state, it therefore must be a state. Only in the vagaries of international law might one describe such a legal argument as “teleological” and therefore be taken seriously. Others said that because some states interact with Palestine as a state, it must be a state.

But when you look at the list of nation-states that belong to the United Nations, Palestine is not there. Instead it is listed as an “observer” at the U.N. And when you review those who attended the meetings creating the International Criminal Court itself, again Palestine is not listed as a state, but rather as one of the “other organizations” in attendance. Indeed, Palestinian officials themselves have long admitted that statehood is their objective, not something they have already attained.

Yet the ICC Office of the Prosecutor spent three years pursuing a lengthy and, for a prosecutor, almost bizarre process of consideration. First, prosecutors entertained “submissions”, not only from parties but from anyone, really, who had something to say. Memoranda were filed by human rights organizations, NGO’s, academics and countless others, with many of these posted on the Prosecutor’s website. Then the Prosecutor invited eight international lawyers who had made submissions, to come to the Hague for a chat about the matter. If it’s difficult to imagine your local prosecutor holding afternoon tea sessions to discuss whether to prosecute war criminals, again welcome to what passes as the world of “international law.”

It is both interesting and important to understand why the Prosecutor took so long with this question. For one thing, the impulse of international organizations is inevitably to expand their jurisdiction. They want more power and influence, not less. Since the purpose of the ICC was to halt impunity for war crimes, genocide and crimes against humanity, the human rights organizations that were behind formation of the Court worry less about legal niceties such as jurisdictional rules and want broader jurisdiction. The Prosecutor himself may share those views but, at the very least, he feels pressure from those who founded this relatively new court in 2002, a court that only recently completed its first trial.

The Prosecutor also faces political pressures that he is only bringing cases against Africans and not those from other, more powerful countries. Indeed, virtually all of his early investigations have been against Africans and perhaps he needed to keep this case alive, if only to demonstrate some balance. Further, he may have been under pressure to keep his hand in the Middle Eastern peace process, holding the threat of prosecution over Israel’s head. And, the ICC could have been one more ticket for Palestine to punch in its effort to receive recognition from international organizations and move along toward its goal of statehood.

But in the end, all those political pressures could not find a proper legal argument to carry the day, and the Prosecutor had to admit that the question of statehood, and therefore the ability to bring cases to the ICC, was really a decision for the United Nations, and not for the Court. Imagine, though, all the time, effort, frustration, and political leverage that were invested in a decision that could and should have been reached three years ago.

To view the article please click on the link:  http://www.forbes.com/sites/realspin/2012/04/04/international-criminal-court-prosecutor-resists-palestinian-end-run/