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Democrats Finally Discover Federalism (Washington Examiner) April 19, 2018

Posted by daviddavenport in Op/Eds, Politics.
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After decades of neglect, a federalism bandwagon is rolling across the country, carrying not only conservatives who have long believed in states’ rights, but also gathering up progressives who are out of power in Washington and have rediscovered the appeal of localism. In fact, many of today’s big political battles are, at their base, a federalism tug of war pitting the federal government against state and local governments.

Take immigration, for example. As the Trump administration has tightened up immigration enforcement at the federal level, a number of states, counties, and cities have decided not to share citizenship information with the feds, with some declaring themselves sanctuary areas for immigrants. President Trump pushed back, signing an executive order pulling most federal grants from states and cities that will not divulge information about citizenship as required by federal law. Last month Attorney General Jeff Sessions turned up the heat by suing deep-blue California over its sanctuary laws. An interesting federalism nuance now sees certain conservative California counties and cities joining the federal suit against the state’s liberal sanctuary laws. A federalism fight is on.

Federalism may have found a truce on another key issue: legalized marijuana. Federal law continues to make the use of marijuana illegal, whereas 30 states and the District of Columbia have legalized its use in some way. The Obama-era solution to the conflict was to ease up on federal enforcement in states that legalized marijuana, but Sessions announced early on that the federal government would resume enforcement everywhere. When Sen. Cory Gardner, a Republican from marijuana-friendly Colorado, began blocking Trump’s judicial nominees, the president called and said the feds would back off enforcement in Colorado if Gardner would approve his nominees. Gardner reported this federalism victory, saying, “President Trump has assured me he would support a federalism-based legislative solution to fix this states’ issue once and for all.” For now, a federalism truce is found.

The federalism tug of war has encompassed a number of issues in Trump’s first year. California famously announced its own climate change and environmental policies when Trump pulled out of the Paris accords. State attorneys general challenged Trump’s travel ban. States are now suing over the tax reform limitation on the deductibility of state and local taxes, based on the theory that it violates the equal protection rights of more expensive blue state residents. In fact, by the end of Trump’s first year, Democratic states had brought 35 lawsuits against his administration, compared with 46 lawsuits by Republican states in President Barack Obama’s 8-year term. The federalism tug of war is spreading.

With federalism busting out all over, where might this lead? Republicans have long championed the 10th Amendment (power not delegated to the federal government is reserved to states and individuals) and states’ rights. In the era of gridlocked government and President Trump in Washington, Democrats have discovered “progressive federalism,” especially located in cities, which tend to be governed more by their party than states where Republican governors predominate. Is it possible that federalism might actually unite liberals and conservatives in a drive for greater localism? Perhaps, but it seems even more likely that federalism may simply become the latest tool in the political battle.

Just as President Richard Nixon reportedly said of economic policy, “We’re all Keynesians now,” it seems we are all becoming federalists now. After decades of power moving to Washington, it would be healthy and refreshing to see the pendulum swing back toward state and local governments. But it would be even more promising if federalism became a way of making policy more deliberative and less contentious. It remains to be seen whether this new federalism might accomplish that.

David Davenport is a research fellow at the Hoover Institution.

To read the column at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/democrats-finally-discover-federalism

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The Coming War in Data Privacy is from Europe, Not Washington (National radio commentary, Salem/Townhall) April 17, 2018

Posted by daviddavenport in Radio Commentaries.
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https://omny.fm/shows/townhall-review-conservative-commentary-on-todays/david-davenport-the-coming-war-in-data-privacy-is/embed?style=artwork

 
While Mark Zuckerberg has been busy defending Facebook over data collection and privacy, a much more ominous threat is quietly coming from Europe. The European Union is implementing tough new standards on data privacy with stiff fines for violators. What many don’t realize is that these rules do not apply only to European companies, but to anyone who has data from Europeans.

For example, American universities enroll students from abroad and they will now be subject to this law.  Complying will cost millions and those who violate the new law could be subject to fines up to $23 million dollars.

Europe’s view is that the individual controls his or her data, not companies that collect it.  With an amazing overreach around the world, this now becomes a new global standard.  On top of trade wars, brace yourself for a new—and costly—cold war over privacy and data.

http://www.townhallreview.com

Questions About Walls (National radio commentary, Salem/Townhall) April 11, 2018

Posted by daviddavenport in Radio Commentaries.
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https://omny.fm/shows/townhall-review-conservative-commentary-on-todays/david-daveport-questions-about-walls/embed?style=artwork

 
President Trump loves walls—besides a border wall with Mexico, he wants to erect trade walls to protect American steel and aluminum with tariffs of 25 and 10 percent, respectively.

In his famous poem about walls, Robert Frost said, “Something there is that doesn’t love a wall,” adding that before he built one, “I’d ask to know what I was walling in or walling out, and to whom I was likely to give offence.” Those are good questions for Mr. Trump’s policy.

He wants to wall out foreign products that are cheaper than American products. But this will trouble not only nations that produce them, but also American consumers who like to save money.

There’s also a question of constitutionality, since the president’s power to do this is based on national security. And the biggest question:  will tariff walls even work in a global economy?

Many important questions about walls.

http://www.townhallreview.com

 

Will the U.S. Be Prosecuted in the International Criminal Court? (National radio commentary, Salem/Townhall) April 4, 2018

Posted by daviddavenport in Radio Commentaries.
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https://omny.fm/shows/townhall-review-conservative-commentary-on-todays/david-davenport-will-the-u-s-be-prosecuted-in-the/embed?style=artwork
As if President Trump did not face enough legal challenges, there are now two threatened prosecutions of Americans at the International Criminal Court.

First, the Palestinian territories have filed a complaint against both President Trump and Prime Minister Netanyahu over relocating Israel’s capital to Jerusalem. While an important matter for Middle Eastern politics, it’s difficult to see how this could be a criminal matter for the court.

Second, the prosecutor is seeking authority to investigate whether the U.S. military is guilty of torture and other war crimes in Afghanistan. Although the U.S. is not a member of the court, Afghanistan, on whose territory the alleged crimes occurred, is.

If either of these moves ahead, it would be the first time the ICC has sought to prosecute Americans and would set up a major confrontation between the U.S. and the court.

http://www.townhallreview.com

‘It sucks.’ The Senate, the World’s Greatest Deliberative Body, No Longer Deliberates” (Washington Examiner) April 2, 2018

Posted by daviddavenport in Op/Eds, Politics.
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Former President James Buchanan called the Senate “the greatest deliberative body in the world,” a moniker that has stuck for 150 years. But as he left Washington for the Senate’s two-week Easter recess, Sen. John Kennedy, R-La., reflecting on his inability to get a vote on even one legislative amendment in his first 15 months on the job, said something quite different: “I think it sucks.”

In that “emperor has no clothes” moment, Kennedy exposed a key reality in Washington: The greatest deliberative body in the world no longer deliberates.

Kennedy’s proposed amendments are not the only ones failing to receive Senate votes these days. The Senate has voted on only six nonbudgetary amendments so far in 2018, an average of two per month. All right, so they have been busy trying to approve spending bills to keep the government open (itself an embarrassing and contentious process) and approving President Trump’s nominees, which has moved at a snail’s pace. However, according to a Politico report, the Senate has only taken 25 roll call votes on binding amendments in this two-year Congress, compared with 154 at this point in the last one.

When he took over as majority leader of the Senate in 2015, Mitch McConnell, R-Ky., vowed to do much better. After Republicans won a Senate majority in the elections of November 2014, McConnell promised “a more free-wheeling approach to problem solving” than the prior leader, Sen. Harry Reid, D-Nev., had allowed. McConnell spoke of restoring the Senate’s “traditional role as a place where good ideas are generated, debated, and voted upon.” In particular, McConnell committed to “an open amendment process — ensuring senators on both sides a chance to weigh in on legislation.”

Oops.

Instead, what we have is little debate and even less voting in the Senate. Bills are crafted behind closed doors, held until they have the requisite 51 (or 60) votes, and then rushed to the floor for a quick vote, sometimes with handwritten notes still in the margins. If there is deliberation, it is only by members of the party in power, not in open committee hearings or debates on the Senate floor. Important pieces of legislation, from Obamacare to tax reform, are passed on straight party-line votes, with no support from the other party. Indeed, as one study has shown, party unity voting has grown from around 60 percent in the 1970s to closer to 90 percent today.

Kennedy is not the first to call out the Senate’s lack of bipartisan deliberation. When Sen. John McCain, R-Ariz., famously flew back to Washington from his cancer treatments to cast a decisive repeal vote on Obamacare, he disappointed his fellow Republicans by voting “no.” But his comments afterward made an even stronger statement. McCain decried the Senate process of drafting proposed legislation “behind closed doors … then springing it on skeptical members, trying to convince them it’s better than nothing, asking us to swallow our doubts and force it past a unified opposition.” McCain urged the Senate to “return to the correct way of legislating,” sending bills to committee, holding hearings, and ultimately crafting laws that could be passed with bipartisan support.

There is a growing sentiment that the Senate needs to return to “regular order,” to the kind of process McCain described, but it will not be easy. Legislating in Washington has become about winning, not finding the best policy solutions. Votes are taken to best position legislators for re-election, not to enact the best bills. At a time when America has an impulsive president, it seems especially important that the Senate play its full deliberative role.

David Davenport is a research fellow at the Hoover Institution.

To read the piece at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/it-sucks-the-senate-the-worlds-greatest-deliberative-body-no-longer-deliberates

Will the International Criminal Court Prosecute Americans Over Afghanistan? (Forbes.com) March 26, 2018

Posted by daviddavenport in Op/Eds.
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As if Donald Trump does not face enough lawsuits and legal wrangling, there are signs that the International Criminal Court (ICC) in The Hague may consider prosecuting Americans over alleged war crimes and crimes against humanity during the war in Afghanistan.  With the recent appointment of John Bolton, long an opponent of the ICC, as the president’s national security adviser, this could become an interesting international legal battle, indeed.

The prosecutor of the Court, Fatou Bensouda, has formally requested authority from a three-judge panel to investigate alleged crimes committed by all parties—the Taliban, ISIS, Afghan security forces, warlords, the US-led coalition and others—in the lengthy war in Afghanistan.  Indeed, the Court has received over a million allegations of abuses and atrocities from the war and it seems highly likely that an investigation will be approved, perhaps soon.

If so, this will be the first time that Americans—presumably soldiers, perhaps CIA operatives—would face the real possibility of prosecution before the ICC.  Even though the US is not a member of the Court, the ICC claims to have jurisdiction over crimes committed on the territory of a member nation such as Afghanistan.  Adding to the drama, the prosecutor also seeks permission to investigate related crimes in Poland, Romania and Lithuania, which would raise questions of detention and torture in the interrogation of prisoners there.

How would the US likely respond to such an investigation or to the possibility of actual charges against Americans?  To cooperate with an investigation might be interpreted as acknowledging that the Court has jurisdiction over Americans, something the Trump administration would be unlikely to do.  In fact, the American Service-Members Protection Act of 2002—sometimes referred to as The Hague Invasion Act—actually prohibits the US from cooperating with the ICC.  Beyond that, however, there is also an important jurisdictional question since Afghanistan signed a bilateral Status of Forces Agreement with the US in which it agreed not to turn over American soldiers to the ICC.  The US could argue that this agreement precludes action against US soldiers before the Court.

The appointment of John Bolton as national security adviser adds a real wild card to this deck.  Bolton has long been a critic of the ICC, calling his delivery, as US Ambassador to the U.N., of a letter “unsigning” the ICC treaty the “happiest moment” of his career.  In a Wall Street Journal opinion piece in the fall, Bolton said accepting the ICC’s jurisdiction “would be toxic to democratic sovereignty” and proposed that, as Winston Churchill said about Bolshevism, “America should welcome the opportunity…to strangle the ICC in its cradle.”

In other words, this could become the moment when America, which said “no” to joining the Court, says an even louder “no” to cooperating with the ICC in any way.  Since it is not a state party to the Court, the US would have no legal obligation to comply with an investigation.  The US could ask the U.N. Security Council to stop the investigation for a year (renewable annually), but that does not seem like the Trump-Bolton style.  “America first” suggests they will “just say no,” and, in effect, dare the ICC, which has no police force, to do something about it.

When Bolton speaks of “the opportunity…to strangle the ICC in its cradle,” he no doubt points to the possibility of refusing to cooperate and thereby further undermine the already shaky credibility and strength of the Court.  In its 15-year history, the Court has spent well over $1 billion and has only four criminal convictions to show for its work.  Until recently, virtually all of its cases were in Africa, which has strained the Court’s political base.  In fact, part of the reason for the Afghanistan case may well be to demonstrate action outside the African continent.

We may face a significant showdown between an international court and Donald Trump’s “America first” doctrine and his hawkish new national security adviser.  Stay tuned.

 

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2018/03/26/will-the-international-criminal-court-prosecute-americans-over-afghanistan/#101cbd0a10a5

Area 45: Baby Boomers, Millennials, Generation Z And The Power Of The Vote (Podcast, Area 45) March 25, 2018

Posted by daviddavenport in Op/Eds.
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By the 2020 election, America’s “millennial” class will replace Baby Boomers as the nation’s largest age-bloc of voters. David Davenport, a Hoover Institution research fellow specializing in constitution federalism and Americans politics and law, discusses what it will take to get a cynical under-35 crowd to the polls and, in the aftermath of the Parkland shooting, whether the even younger “Generation Z” will emerge as a political force.

To listen:

https://hoover.org/research/area-45-baby-boomers-millennials-generation-z-and-power-vote

Another Shot Fired in California’s Civil War (National radio commentary, Salem/Townhall) March 22, 2018

Posted by daviddavenport in Radio Commentaries.
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California is stepping closer to a civil war with the federal government over immigration. In the latest round, one day after President Trump visited the state to see prototypes of his border wall, the state senate appointed an illegal immigrant to serve on a state commission, a big step in California’s progressive history.

Lizbeth Mateo, an undocumented immigrant from Mexico, was appointed to the state’s Student Opportunity and Access Program Project Advisory Committee.  Perhaps, as a lawyer who advocates for immigration rights, she would have a perspective to share as a witness before a state commission, but as a member? There’s no legal basis for that and it is a further effort by California to tweak the Trump administration.

Unfortunately, the rule of law is rarely raised anymore in debates about immigration policy. Tweaking Trump is just a bad approach to public policy.

https://omny.fm/shows/townhall-review-conservative-commentary-on-todays/david-davenport-another-shot-fired-in-california-s/embed?style=artwork

http://www.townhallreview.com

The Rise of Millennial Voters (National radio commentary, Salem/Townhall) March 20, 2018

Posted by daviddavenport in Radio Commentaries.
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A wave of change is coming in the 2018 and 2020 elections:  the rise of millennial voters.  In those elections, millennials, born between 1980-2000, will finally pass baby boomers as the largest voting generation.

What we know is that millennials hold different political views than their boomer parents.  They are more fearful, saying 4-1 that America is on the wrong track.  They believe less in political institutions such as Congress and the President.  They are more open to socialism, less committed to freedom. Seventy-one percent say we need a new political party.

What we don’t know is how many millennials will actually show up to vote.  So far, their voting percentage is low:  only half or less of eligible voters in 2016.

It seems likely that millennial concerns will change the conversation in future elections, but we’ll have to wait and see whether they actually vote and change the outcome.

https://omny.fm/shows/townhall-review-conservative-commentary-on-todays/david-davenport-the-rise-of-millennial-voters/embed?style=artwork

http://www.townhallreview.com

Something There Is That Doesn’t Love A Tariff Wall (Forbes.com) March 8, 2018

Posted by daviddavenport in Op/Eds, Politics.
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Donald Trump is enamored of walls.  First he wants to build a physical wall on the border between the U.S. and Mexico.  Now he wants to erect tariff walls, imposing a 25% tax on steel and 10% on aluminum coming into the country from abroad in order to protect higher priced American products and jobs.

But as Robert Frost wrote in his poem Mending Wall:  “Something there is that doesn’t love a wall.”  Frost added this further word of caution:  “Before I built a wall I’d ask to know what I was walling in or walling out, and to whom I was likely to give offence.”  These are important questions that President Trump would do well to consider.

Trump’s philosophy seems to be that globalization is the problem and building walls is the solution.  If globalization has robbed Americans of jobs—and his strong showing in key rust belt and industrial states helped elect Trump—then we will prevent products from coming into America at a lesser cost and competing with American manufacturing.  His answer to Frost’s first question is that cheap products are what we want to keep out.  But to whom will he give offense?  Key allies and world powers that manufacture these products, but also American consumers who like to buy them and save money.  Building walls can be complicated.

History is not on the side of walls.  In one of the great speeches of the 20th century, President Ronald Reagan stood near the Berlin Wall, a key part of the Iron Curtain surrounding communist Eastern Europe, and famously said, “Mr. Gorbachev, tear down this wall.”  Gorbachev did and the result was the beginning of the end of the Cold War and the reign of communism.  Other walls around the world, including the Great Wall of China or Hadrian’s Wall in England, are relics of history.  They no longer function to keep people in or out.

Nor has history judged economic walls kindly.  In fact, you would think Republicans might remember their own troubled history building trade walls during the Great Depression.  Senator Reed Smoot and Congressman Willis C. Hawley decided that adopting protectionist trade policies—placing tariffs on over 20,000 imported goods—would help protect the vulnerable American economy, and President Herbert Hoover agreed.  The net result:  other nations retaliated, more banks closed, and both the U.S. and global economies suffered further losses, exacerbating the Great Depression.

Today the global economy is highly interdependent, making trade walls even less likely to succeed.  People used to say that when the U.S. sneezes, the world economy catches a cold, but now with the hyperspeed of technology and communication, an economic event almost anywhere may trigger waves around the globe.  Already China and the European Union have said they will respond in kind to any trade war Mr. Trump chooses to launch.  The days of building an economic wall around any country are long past.

Not only are history and economics not on the side of Trump’s protectionist tariffs, but the U.S. Constitution is not either.  Article I of the Constitution gives Congress the “Power to lay and collect Taxes, Duties, Imposts and Excises,” which includes the power to establish tariffs.  In this case, President Trump is relying on a highly suspect delegation to the president from a 1962 Cold War law in cases of “national security.”  Clearly, President Trump’s assertion of this power is over something less than national security, as he wheels and deals with countries over tariffs and trade agreements.  This is yet one more case of the president overreaching through executive orders and powers to assert his will over Congress, several of whose leaders (even from his own party) have spoken out against the tariffs.

From time to time over its history, the U.S. has shown tendencies toward isolationism and Trump’s tariff wall is one more example of this.  As a commercial republic in a complex world economy, however, such tariffs no longer make sense, if they ever did.

 

To read the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2018/03/08/something-there-is-that-doesnt-love-a-tariff-wall/#78872e3dc684