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The International Criminal Court Crashes and Burns Over Afghanistan (Washington Examiner) April 16, 2019

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In a classic 1970s television commercial, a greasy mechanic rolled out from under a car holding a $200 bearing that needed replacing and a $4 oil filter that would have prevented the problem if installed earlier. The mechanic delivered a prophetic line: “You can pay me now, or you can pay me later.”

The International Criminal Court in The Hague has learned that lesson the hard way, paying the higher price now because it did not pay a more reasonable price 20 years ago. The reckoning came last week when a three-judge pretrial chamber of the court told the prosecutor that she could not go forward with her inquiry into possible war crimes by Americans and others in Afghanistan. The judges concluded that the lack of cooperation in any investigation by the U.S. and others meant that there was a low prospect of obtaining any convictions and it was not in the interests of justice to go forward.

The decision prompted an outcry from human rights activists and surely disappointed the prosecutor. Most believed that this was the moment to bring Americans before the court for the first time and hold them accountable for alleged war crimes in Afghanistan. As Katherine Gallagher, an attorney for the Center for Constitutional Rights in New York put it: “With its decision today, the International Criminal Court sends a dangerous message: that bullying wins and that the powerful won’t be held to account.”

However, I find some other messages in the court’s decision. First, by failing to build a court with a broader membership and wider consensus in the first place (you can pay me now), it was inevitable that powerful nonmember states would become a problem at some point (you can pay me later). In the negotiations leading up to the creation of the court in 1998, the U.S. had been an active participant and likely supporter. However, late in the process, a coalition of human rights groups and small- and medium-sized “like-minded” nations decided to take the court in a more radical direction in order to create a court “worth having.”

Over the objection of the U.S. and several world powers, the coalition decided the court needed an independent prosecutor, the ability to bring charges against citizens of nonmember states, and the addition of a new and undefined crime of aggression. It was a hardball move, and the U.S. refused to join the court under those terms. In fact, many of the world powers did not sign on, and the court was weakened at birth. Now the court is paying because the U.S. continued to fight charges against its citizens, namely U.S. soldiers and operatives in Afghanistan.

The second message underscored here is that international law is not law in the way that ordinary people would understand it. There is no global constitution or true world court, the ICC has no police force to enforce its laws. International law is best understood as a set of norms that nations agree to, and even then they may violate them later when it is in their interests. International law is really driven more by power politics and agreements than by pure law.

Finally, this decision demonstrates once again the ineffectiveness of the International Criminal Court itself. I wrote an article five years ago titled “International Criminal Court: 12 Years, $1 Billion, 2 Convictions.” The record hasn’t improved much since then. If the supporters of the court were willing to take on the U.S. in forming the court, then they should have been ready to continue the battle today. Instead, when the Trump administration said it would not cooperate with the court and, indeed, would bar travel in the U.S. by court officials and take other preventive actions, the court effectively backed down.

Already weakened by a poor record of accomplishment, the court’s decision to back down over Afghanistan may be the beginning of the end for the ICC.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

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Congress Forgot Investigations Should Be Connected To Legislation (Washington Examiner) April 15, 2019

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It’s not only in sports that “you can’t tell the players without a scorecard.” The huge number of Trump investigations, proposed and actual, would require a spreadsheet. The Justice Department and the New York Attorney General have many entries on that scorecard, but so does Congress. Congress still has several investigations going about Russia, White House security clearances, Trump’s tax returns and, oh wait, there is also Rep. Devin Nunes, R-Calif., investigating Trump investigations.

Although Congress has broad powers of investigation, there is at least one limitation that seems to be ignored: Congress’s power to investigate derives from its power to legislate. Therefore, there should be some connection between what Congress investigates and some kind of legislation, a requirement that in the present environment is little discussed and barely applied.

In fact, one could readily argue that many of the current and potential investigations of President Trump are far more grounded in the politics of attack and very little aimed toward actual legislation.

Although congressional investigations have been around since the country’s founding, there is actually no explicit mention of such a power in the Constitution. Instead, Congress and the courts have eagerly implied a power to investigate from Article I, section 8 of the Constitution granting Congress the power to “make all laws.” When the Supreme Court has affirmed the power of congressional investigations, it has frequently underscored the necessary connection to legislation. In Quinn v. U.S. (1955), for example, the court said there was “no doubt as to the power of Congress, by itself or through its committees to investigate matters and conditions relating to contemplated legislation.”

So let’s take the calls by Congress to investigate Trump’s tax forms, for example — and not just returns as president, but for years when he was a private citizen. What legislation is this expected to inform? I suppose Congress could gin up a legislative purpose, arguing that it will consider a bill to require all presidents and presidential candidates to provide these, but that seems a little too cute. In this day and age, Congress cannot even assure that such material would remain confidential, as the law would require. This one certainly seems to travel the low road of politics, not the higher and mandated road of legislation.

Professors Douglas Kriner and Eric Schickler in their 2016 book, Investigating the President: Congressional Checks on Presidential Power, concluded that, especially in the House of Representatives, politics has usually been the common denominator when congressional investigations have grown. Studying 4,522 congressional investigations of the executive from 1898-2014, Kriner and Schickler conclude that a “divided government,” when at least one house of the Congress is controlled by a different party than the White House, “is the single biggest predictor of investigative activity in the House” (p. 67). They add that such investigative activity “significantly erodes the president’s standing with the public” (p. 86), with the media fanning the flames. In this era of partisanship and polarization, “the dangers of overreach have expanded considerably” (p. 249), they say.

I am not arguing that Congress’ power to investigate is not important, or even that it is not broad. In general, I have greater concern about the growing power of the executive branch as compared with the legislative. But, as a 2017 Congressional Research Service report concluded, “Congress’s [investigative] authority is not unlimited.” Congress would not have the power to investigate the private affairs of an ordinary citizen, for example, which Donald Trump was until he ran for and was elected president.

What I am arguing is that in an era when Congress is doing very little legislating at all, we should be wary of allowing its investigative power to become its primary way of doing business. Moreover, we should be doubly wary when the political motives are high and any kind of legislative purpose is low.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

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Campus Politics are More Dangerous than Bribes (National radio commentary, Salem/Townhall) April 11, 2019

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Parents paying to get their children into elite colleges has shocked the nation. Meanwhile, a more prevalent and more insidious problem—campus politics and intolerance—goes unnoticed.

The latest comes at Hofstra where students demanded that a Thomas Jefferson statute be removed since it represents “a legacy of racism and bigotry.”

Never mind that the author of the Declaration of Independence fought slavery and in his first draft called for abolition. Students’ ignorance of history judging leaders of the past by today’s standards create intolerance and weaken education.

Meanwhile at Oregon State came a call to ban the Veteran Student Association from using a student lounge on campus. The students said they were “vulnerable to the ideological and practical consequences” of letting veteran students meet there.

Campus intolerance may not be criminal, but it is every bit as dangerous.


The Civic Education Crisis (Defining Ideas) April 6, 2019

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Perhaps George Orwell was thinking of a moment like this when he said, “We have now sunk to a depth at which restating the obvious is the first duty of intelligent men.”  The obvious now is that the Republic faces a seemingly overwhelming number of crises.

Only half the people vote (58% in 2016, only 44% in 2018).  The government is virtually shut down by polarization and gridlock even when it is not actually shut down by the failure to approve any spending authority.  The US Senate, once known as the greatest deliberative body in the world, hardly deliberates any more.  Instead, we have government by executive order, national emergency and war.  Judicial appointments have become Armageddon.  We cannot solve our border and immigration problems. Meanwhile, our airports and roads are decaying, the national debt is out of control, and healthcare is a mess.

What is not so obvious, however, is that these are merely manifestations of a more profound problem:  the civic education crisis.  Over the years, I have come to understand that politics is only the topsoil of our national life.  In the deeper soil are questions of actual policy:  what should we do and how?  But deeper still is the root system, the culture and values that sustain and motivate national life.  The tap root that feeds the root system in America is the troika of education, family, and faith.   As those roots decay, civic education withers.

Civic Education in America Has Decayed

By almost any measure, the quality of civic education in America has become a national crisis.  The Nation’s Report Card, as the National Assessment of Educational Progress testing is called, last showed that only 18% of 8th graders were “proficient” or better in US history, 23% in civics and government.  More troubling, only 1-2% scored as “advanced” in these fields.  A recent study by the Woodrow Wilson National Fellowship Foundation found that only 36% of Americans could pass the citizenship test that is part of the immigration process, a test that immigrants pass at a 97.5% rate.  A 2017 Annenberg study reported that 75% of Americans do not know the three branches of government and 37% could not name one right in the First Amendment. Young people say they like socialism but it is clear that they do not understand what that means.  And yes, it is true that there are students who think Judge Judy is on the Supreme Court and the Cold War was caused by climate change.

Finally, some Americans are awakening to the fact that there is a serious problem.  Students themselves have discovered the problem, with several high schoolers suing Rhode Island officials in federal court over the poor civic education they have received.   In a feature article last year, the New York Times observed, “in the age of Trump, civics courses make a comeback.”  Several states are considering a strengthening of civic education requirements and foundations are considering major initiatives in the field.  By now, however, the problem is so deeply rooted as to require an all-out effort at several levels.

The Major Problems

The brief answer to why we have a crisis in civic education is that it is no longer a priority.  In 2011, the federal government essentially halted its financial support for civic education.  Although the Every Student Succeeds Act restores some funding, the federal retreat sent a message.  Testing also conveys a message:  What we care about, we test.  The NAEP tests in American history and civics are only given at the 8th grade level now—no longer in 4th and 12th grade—and only every few years.  State requirements for civic education are low, with most states only mandating a one-semester course in high school.  Even STEM initiatives, which have attracted hundreds of millions of dollars in both federal and private funding, have had the unfortunate effect of crowding civic education out of the curriculum.

Teachers and textbooks are also key components of the civic education problem.  Teachers graduating from schools of education are taught pedagogy—how to teach—but are generally not required to take extensive coursework in the content of what they will teach.  Over 80% of colleges do not require a course in history or government.  As a result, we have teachers who, themselves, do not know enough about history and civics to be excited and confident about these subjects and to teach them well.  Textbooks are, at best, boring and at their worst biased.  One of the most widely used textbooks, A People’s History of the United States by Howard Zinn, presents only the dark side of America, with Columbus coming to plunder gold and kill and the Founders motivated primarily by their private property and wealth.  As Gordon Lloyd, professor emeritus at Pepperdine University has said, “It’s hard to love an ugly founding.”

Then, too, civic education in many schools has taken a back seat to its shiny new companion civic engagement.   Instead of courses on how the government works, countless schools have prioritized students undertaking volunteer work in the community or protesting government action in the name of civic education.   Indeed, based on the energy students demonstrated protesting guns on campus last year, a number of cities and states are considering letting 16-year olds vote, as a handful of municipalities already do.  While having students engaged in politics and community activities is fine, putting the cart of civic engagement ahead of the horse of civic education is not.


While it might be nice if a billionaire were to make a major investment in improving civic education, as Bill Gates has done for global health, or if a major national movement like the one that has advanced STEM education came together, the good news is that there are a number of smaller, achievable steps that could make a real improvement in civic education.

First, states need to step up to the plate and make civic education a priority for their schools.  Fortunately, federalism is alive and well in education and states are able to take the initiative in curricular and graduation requirements.  Presently, only nine states (plus the District of Columbia) require a full year of student coursework in government and civics.  Further, civic education should not wait for high school but should instead begin in elementary schools and continue through the grades.  Only two states require middle school civics.  On the other hand, Florida has begun an emphasis on civics in elementary school and its results are improving.  There needs to be a study of best practices that might be adopted at the state level and a concerted effort made in state capitals to implement a greater emphasis on civic education at all levels.  States can also provide the kind of funding needed for teacher training and development, since very little is accomplished in the classroom unless teachers are truly prepared with the necessary content and enthusiasm to lead the charge.

Second, we should consider further testing of civic education.  I am not the biggest fan of standardized testing in schools but, if you are going to test, what you choose to test, or in the case of civics not test, delivers a message about what is important.  One proposal is that students should have to pass the same citizenship test administered to immigrants in order to graduate.  Some 20 states have adopted a version of this and others are considering it.  The test is not that difficult and I am not certain it is the best measuring stick toward which a strong civic education program should strive, but it is worth discussing.  We should return to administering the NAEP exams in history and civics in earlier grades, even as we strengthen civics course requirements in those grades.

Finally, we should acknowledge that the content of civic education is important and we may need debate and discussion about what teaching civics actually means.  Is civic education, as some on the left prefer, an understanding of current issues of civil rights and inclusion?  Or is it, as some on the right argue, a basic understanding of the Constitution and how our government works?  A possible breakthrough in this regard has been pioneered and advanced by the Ashbrook Center in Ohio:  the use of primary documents to teach history and civics.  As a supplement, or even a replacement, for boring and biased textbooks, the Ashbrook Center has trained and retrained thousands of teachers to teach using primary documents, which includes not only the Constitution or Declaration, but also speeches and documents of the time.  Teachers report that recreating the debates of historic eras creates far more excitement in the classroom and test results show an improvement in student learning.  It also creates a path through the politicized thicket of history and government since students simply read and discuss primary documents, drawing their own conclusions.


Many remember President Dwight Eisenhower’s farewell speech warning of the dangers of the military-industrial complex, but fewer recall President Ronald Reagan’s farewell address now 30 years ago.  Reagan’s speech was warm and optimistic, as was his style, but like Ike’s, it included a warning.  Reagan felt that America was falling down on the job of developing in its young people “an informed patriotism.”  He emphasized the need to redouble our efforts to help the next generation understand “what it means to be an American.”  I sense Reagan felt it was not enough just to know the facts about the American system, although even that would be quite an improvement today.  It was also appropriate that efforts be undertaken from the family dinner table as well as the schoolhouse to develop a love of country.

The Founders were clear that a free republic “presupposes” (Federalist No. 55) that citizens possess the sort of virtues that are developed through civic education.  It is, as Reagan pointed out, the duty of each generation to pass along this understanding of America to the next.  I can think of no higher priority, and no greater contributor to a better functioning of our republic, than to greatly strengthen American civic education.

To view the essay at Defining Ideas:


An American Civics Lesson (Podcast, Area 45) April 4, 2019

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Area 45: An American Civics Lesson With David Davenport

interview with David Davenport
Wednesday, April 3, 2019

Granting 16-years-old the right to vote, abolishing the Electoral College, reshaping the makeup of the Supreme Court, states entering a voting compact? All are proposals championed and floated by a left still smarting from the 2016 election. David Davenport, a Hoover Institution research fellow specializing in constitution federalism and Americans politics and law, discusses why one of these reforms is more feasible than the others – and the need for a renewed emphasis on civics education.


The podcast is approximately 40 minutes and can be found here:


Court Packing Madness (National radio commentary, Salem/Townhall) April 3, 2019

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While the rest of us enjoy basketball’s March Madness, progressives are creating madness of their own. The latest is their proposal to pack the Supreme Court by adding new seats on the Court for the next president to fill. This is clearly a political ploy to change the present 5-4 conservative makeup to a 6-5 liberal one.

Writer Wynne McLaughlin said, “Maybe history wouldn’t have to repeat itself if we listened once in a while.” Obviously, progressives aren’t tuned into history because the last time this was proposed, by President Franklin Roosevelt in the 1930s, even his own party said no.

Packing the Court will become an endless project, with every new president and congress tempted to change the makeup, and the Court will become more polarized, not less. A far better reform would be term limits for justices.


The Worst Attack on the Electoral College: Pretending Every Vote Doesn’t Count (Washington Examiner) March 22, 2019

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Colleges are under attack today, with the recent admissions scandal triggering charges of inequity in the college admissions process. But Democrats are on the warpath about a particular college, the Electoral College, arguing that it advances its own brand of unfairness.

Sen. Elizabeth Warren, D-Mass., is the latest critic, saying earlier this week: “My view is that every vote matters … and that means get rid of the Electoral College and everybody counts.” Another candidate, South Bend, Ind., Mayor Pete Buttigieg, agreed. Beto O’Rourke said he saw “a lot of wisdom in that.” Democrats are apparently not content to eliminate economic inequality through their expensive Green New Deal, but also want to pack the Supreme Court and close the Electoral College to remove constitutional barriers to their blue progressive goals.

Warren’s argument, that the Electoral College means votes do not count, is wrong on its face. Votes have to be aggregated and counted somewhere, and the Constitution provides that this be done state by state, even as it empowers the states to run elections for federal offices. Every vote does count, it’s just that they are counted in state capitals, not in Washington.

I guess for Democrats, government does not count if it does not happen in Washington.

There are both historic and current reasons for the elector process. Historically, the founders built a number of mechanisms into the Constitution allowing both the states and the people to play roles in ways that create checks and balances and separations of power. The Senate holds two senators for every state, for example, and the House of Representatives is “the people’s house.” The people vote for a presidential candidate’s electors and the states control the electoral vote.

Besides the constitutional issues, there are two practical reasons why the elector system continues to make sense. One is that it limits recounts to a statewide process rather than a national one. Imagine how the 2000 election would have gone if instead of just counting ballots in Florida, we had to do it all over the country, as a national popular vote would require. Another benefit of the elector system is that it forces candidates to campaign in different states and areas of the country to win, rather than concentrating their efforts on large population centers.

Even more troubling than calls to close the Electoral College, which can only be done by a constitutional amendment, is the end run called the National Popular Vote Bill. This clever bit of legislation working its way through state legislatures would require state electors to cast their votes not for the popular vote winner in their state but for the victor in the national popular vote.

Talk about your vote not counting.

A candidate could win a state in a landslide, but your vote would not count because your state’s electors must vote for the winner of everyone else’s national popular vote. Colorado just passed the bill last week, bringing the total of states that have passed it to 12 (plus the District of Columbia). When enough states pass the bill to total the 270 electoral votes needed to elect a president (the count is now 181), it will go into effect.

A better reform, and one that properly addresses what people do not like about the electoral process, would be for states to move away from the winner-take-all aspect of electors. All states except Maine and Nebraska cast all their electoral votes for the winner of their state’s popular vote. However, Maine and Nebraska split theirs according to how the candidates ran in particular districts. Under the Constitution, states may allocate electoral votes as they wish, so this would be a reform requiring neither a constitutional amendment nor a too-clever end run.

Progressives prefer big, national reforms, rather than working this kind of change through each state.

The founders rightly feared direct democracy. The many checks and balances and separations of power they wrote into the Constitution are not, as progressives argue, anachronistic. Rather, they are part of the genius of the American republic that keeps our democracy safe.

David Davenport is a contributor to the Washington Examiner‘s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

To view the column at the Washington Examiner:


Let Him Bake Cake (National radio commentary, Salem/Townhall) March 21, 2019

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You may remember the baker Jack Phillips in Colorado. As a Christian, Philips felt he could not in good conscience decorate cakes celebrating events that did not square with his beliefs.  The Colorado Civil Rights Commission opposed him and, finally, the US Supreme Court said the Commission had acted prejudicially.

But within weeks of the Court’s decision, the Civil Rights Commission brought another case against Phillips for declining to customize a cake celebrating a gender transition.  One Commissioner took to Twitter calling him a “hater.”

Finally, after six and a half years, the Commission has decided to withdraw its complaint and let him bake cakes in peace.  Perhaps the change from Supreme Court Justice Anthony Kennedy to Brett Kavanaugh was a reality check.

First Amendment religious rights and Fourteenth Amendment civil rights are sometimes in tension, but religious rights must not be put down by government agencies.


What a National Emergency Actually Means (National radio commentary, Salem/Townhall) March 19, 2019

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Few Americans realize that they currently live under some 30 states of national emergency, the oldest declared by President Jimmy Carter during the Iran hostage crisis 40 years ago. Actual emergencies come and go but emergency declarations live on.

The primary effect of a national emergency is to shift power from Congress to the president, as President Trump wanted to build his wall. Along with executive orders and domestic policy wars on poverty, crime, drugs and terror, presidents since Lyndon Johnson have been moving power from one end of Pennsylvania Avenue to the other.

But politically, it’s a two-edged sword. When presidents seek to do things unilaterally, these actions are easily canceled and replaced by the next president. Perhaps you recall how quickly President Trump undid President Obama’s executive orders.

One day Congress will wake up and notice its primary powers are lost.


The Real March Madness: Progressives Want to Pack the Supreme Court (Washington Examiner) March 15, 2019

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While the country gears up for college basketball’s March Madness, progressives already have their own season of silliness in full swing. The latest is a proposal to let the president (only when Democrats retake the White House, of course) add and fill additional seats on the Supreme Court. Former Attorney General Eric Holder likes the idea (let’s add two, he says), as does Democratic presidential candidate and South Bend, Ind., Mayor Pete Buttigieg and several progressive groups.

Writer Wynne McLaughlin has said, “Maybe history wouldn’t have to repeat itself if we listened once in awhile.” Few seem to remember that this idea was laughed out of Congress more than 80 years ago when former President Franklin Roosevelt advanced his own court-packing plan. Roosevelt was frustrated that the Supreme Court was declaring his signature New Deal laws unconstitutional, and his remedy was to add a new justice to the court for every sitting judge older than age 70 (which included six out nine justices at the time).

The plan was widely criticized, even by members of Roosevelt’s own party, and never enacted.

The first question to ask, as liberals resurrect this idea, is what problem they are trying to solve. If it is the politicization of the judicial appointment process, this will only make matters worse. The next president adds two, potentially tipping the political balance of the court from 5-4 conservative to 6-5 liberal. Then, of course, every time the presidency and the Congress changes hands, this topic is likely to be revisited.

The underlying problem Congress should be considering is how to limit the growing power of the Supreme Court and the judicial branch. Again, history provides a valuable insight. Alexander Hamilton argued in The Federalist (No. 78) that the judiciary, having neither the power of the sword nor the purse, would be “beyond comparison the weakest of the three departments.” But the Antifederalists disagreed because the Supreme Court could give the Constitution any interpretation it wanted. This power to be the final word on constitutionality has led the court to decide most of the important issues, especially on social questions and rights, of our day.

This, of course, is why Supreme Court appointments have become so highly politicized.James Madison’s view was that we needed a judiciary that was independent of the other branches of government, but not independent of society itself. One could argue that the Founders should have placed more checks and balances on the power of the courts, but there are several things that Congress could do now to reduce the Supreme Court’s outsized influence.

For one thing, Congress controls the appellate jurisdiction of the court and could reduce its workload, which the justices currently control themselves. Congress also has the power to decide the number of federal courts and the pay of the judges. Essentially none of these powers is taken up by Congress.

A better reform than adding new justices would be to limit their terms, again a power available to Congress. Limiting Supreme Court justices to 18-year terms would allow regular turnover on the bench, with each four-year presidential term producing two new nominations. Judges could then return to some other seat on a federal court to serve out their “lifetime” appointments. Not only would the regular turnover of term limits potentially reduce political warfare in the courts, it would also mean that early appointments of young judges and late service by older ones could be reduced.

Progressives want to give us not only a “Green New Deal,” but also a New Deal in black robes. Packing the court with new justices does not address the underlying problem of the Supreme Court’s excessive power but only exacerbates the politicization of the judicial nomination process.

As former Sen. Bob Dole, R-Kan., said when he was referred to as “Senator Gridlock,” there are a lot of bad ideas in Washington and somebody needs to stop them. Packing the court is one of those bad ideas.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

To read the column at the Washington Examiner: