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Win or Lose, The Affordable Care Act Has Federalized Health Care Forever (Forbes.com) July 13, 2017

Posted by daviddavenport in Op/Eds.
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Writing about President Lyndon Johnson’s “Great Society” of the 1960s, which triggered an avalanche of new federal programs, political scientist James Q. Wilson rightly said that one thing LBJ accomplished was lowering the “legitimacy barrier” to federal action.  Previously, Wilson pointed out, there were serious debates over whether the federal government had the power to tackle domestic policy challenges such as poverty or welfare or Medicare.  But once the first laws in these fields were passed, that debate was over and everything that followed came to be seen as an extension or a continuation of some legitimate federal program.

If nothing else, this is what President Obama’s Affordable Care Act accomplished: it forever changed the debate by making health care policy a legitimate matter of federal concern.  Today Republicans and Democrats no longer argue whether federal health care regulation and design are legitimate; instead they argue the details of federal policy.  The questions are not whether, but how much.  The debates are about how many people have coverage, whether preexisting conditions must be covered by law, the proper scope of coverage, and so on.

This is the primary problem conservatives now confront in trying to cut Obamacare down to size.  They would like to repeal it, and try to return things to the pre-Obamacare days, but most of them understand that politically they can’t realistically turn back the clock.  They cannot repeal if they do not also replace.  And when they replace, they would like to make greater use of private insurance, spend less on Medicaid, and eliminate mandates, but Obamacare made the debate about how many millions of people are left uncovered by health insurance, so that becomes fatal to many of the Republicans’ plans.

Even though Obamacare did not literally federalize the delivery of health care, it did federalize it in the crucial sense that the federal government is now in charge of making the important policy decisions about it.  It is no longer the states or the doctors or the private health insurers interacting with patients and consumers that are deciding the scope of required health care.  It is Mitch McConnell and Ted Cruz and maybe Chuck Schumer.  This is boiling the frog federalizing:  first we lower the legitimacy barrier to federal action, then we put the feds in charge of the key policy decisions, and,  ultimately, we are likely to end up with federal delivery of health care.  This was all accomplished in a stunningly brief period of time, and all triggered by a party-line vote on Obamacare.

In the same time frame, though accomplished more slowly, was the federalizing of K-12 education.  First, through President George W. Bush’s “No Child Left Behind” law, followed by President Obama’s “Race to the Top” program, the federal government began to take over what had traditionally been understood as the classic state and local matter:  K-12 education.  But amazingly, there was pushback from parents and teachers over the Common Core curriculum, teaching to the test and other problems.  Finally, Congress realized it had to pull back and the “Every Student Succeeds Act” essentially admits defeat on some of these federal programs and begins returning authority to the states.

Are there useful lessons in reducing federal influence in education that might help trim the sails on Obamacare?  I fear not.  By the time Obamacare fully plays out, and all its problems are discovered, a federal system of health care regulation will be so ingrained that it will be possible only to amend it, not to pull it back.  It will take tremendous courage on the part of Republicans to seize the only moment they now have—and even this is likely too late—to turn back the federalizing of health care.  Far more likely is that the federalizing will ultimately take over the delivery of health care itself through a single payer (government) system.  Few want that, but once the federalizing starts, it becomes almost impossible to stop.

 

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/07/13/win-or-lose-the-affordable-care-act-has-federalized-health-care-forever/#1ec625dc1f2b

Free Speech Under Threat (National radio commentary, Salem/Townhall) July 5, 2017

Posted by daviddavenport in Radio Commentaries.
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This summer, Commentary magazine published a forum on the question: Is free speech under threat in the United States?

Ironically, in a country where the Constitution and the courts carefully protect free speech, many people do not feel free to speak freely. Why? Because of a smothering blanket of political correctness that starts in our colleges and permeates our society.

Speakers with points of view that differ from the liberal orthodoxy are not welcome on many campuses, and in some cases have been subject to threats and violence. Students are supposed to be protected from so-called trigger words and microaggressions in the classroom. So much for free speech and the open debate of competing ideas.

The problem is that the First Amendment protects free speech from limitations by government, but the big challenges to free speech come from our culture and our campuses. It will take a strong fight to protect free speech, which is clearly under threat.

http://www.townhallreview.com

The Future of Freedom (National radio commentary, Salem/Townhall) June 30, 2017

Posted by daviddavenport in Radio Commentaries.
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A new survey by the Fund for American Studies reminds us that millennials do not understand economics. The same group that does not know basic civics—such as who their senator is or whether Judge Judy is on the Supreme Court—also doesn’t get how free markets work.

While 60% of millennials said they would choose liberty over security, in turn 54% want more government, not less. A majority of even Republicans and conservatives believe government should regulate oil and drug company prices, and place tariffs on goods coming from overseas.

This survey is described as a “freedom index” but millennials really favor more government regulation. I suppose it’s no surprise that young people who have grown up knowing nothing but big government fail to see the connection between more government regulation and less freedom.

Young people who value freedom in their personal and social lives need to understand that political and economic freedoms are necessary to sustain that.

https://w.soundcloud.com/player?url=https%3A%2F%2Fapi.soundcloud.com%2Ftracks%2F330551022&visual=true&color=ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=falsehttp://www.townhallreview.com

California’s Bully Federalism: Travel Ban Seeks To Impose Its Policies On Other States (Forbes.com) June 28, 2017

Posted by daviddavenport in Op/Eds.
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Federalism—the idea that it matters which level (federal, state, local) and which branch (legislative, executive, judicial) of government should act on a matter–is a funny thing.  Philosophically conservatives love it since they hate big federal bureaucracies.  Liberals like it less since they adore federal mandates.

But a strange thing happens when both conservatives and liberals get Beltway fever in Washington.  Suddenly federal power seems like a really good idea, federalism be damned.  Since we have the power in Washington, and we can trust ourselves, they reason, we should enact things here and now.  That’s how we end up with federalizing classic state and local matters such as education (No Child Left Behind) and health care (the Affordable Care Act) only to come to our senses later and try to return things to the states.

So now liberals, who are out of power in Washington, have rediscovered federalism’s state and local powers, with California, as always, leading the way.  Indeed, California has hired President Obama’s former Attorney General, Eric Holder, to help defend its progressive policies against Trumpism and the federal government.  From sanctuary cities to stricter emission controls and its own climate change foreign policy, this is a time for “progressive federalism” in California.  All of that is well and good, defended by the same Tenth Amendment to the Constitution (powers not delegated to the federal government are reserved to the states or the people) that conservatives champion at other times for their favorite issues.

But now California has discovered a new kind of federalism:  bully federalism.  In addition to using federalism as a shield to protect it from the federal government under President Donald Trump, it has found a way to wield it as a sword to try to impose its policies on other states.  By instituting a travel ban on state money being used for travel to eight states that do not, in its judgment, provide sufficient legal protection to gay and transgender rights, California hopes to bully those states into submission.  North Carolina, which lost its NBA All-Star game and other money-making opportunities under a similar ban, knuckled under to just this kind of economic pressure.  As the sixth largest economy in the world, and the largest state budget, California has economic power to burn.

Federalism as a shield comes under Article I of the Constitution (supplemented by the 10th Amendment), which enumerates federal powers.  But California’s bully federalism would be understood with reference to a different provision of the Constitution, Article IV.  Here states are required to give “full faith and credit” to the public acts, records and court decisions of other states.  Reading between the legal lines, Article IV defines a certain respectful relationship among the states.  Indeed, one of the beauties of federalism is that the states may decide to take different approaches to things, providing what former Supreme Court Justice Louis Brandeis called “laboratories of democracy.”

Except that California, in its superior wisdom and with its superior power, has decided that its laboratories are right and other state laboratories and cultures are wrong in this matter.   California’s travel ban smacks of the sort of elitism—we will not even visit your state with our money—that has soured the electorate.  And indeed, if I lived in one of those eight states, as I once did, which kind of power would I rather be subject to:  federal power, where I at least have a voice and a vote, or California power, where I have no say at all?  Is it really California’s place to tell Kansas what kind of policies it should have?

If not the letter of the law, California’s travel ban violates the spirit of federalism and of the “full faith and credit” principles of the Constitution.  Once again, California is on the “bleeding edge” of reform, but this time its sword seeks to cause other states to do the bleeding.

New Legislative Virus Spreads: Hide The Bill, Don’t Read It, Fill In The Blanks Later (Forbes.com) June 20, 2017

Posted by daviddavenport in Op/Eds, Politics.
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A dangerous legislative virus is spreading from one health care bill to the next.  Call it “hide the ball” or “spare us the details.”  A legislative contagion by any other name would smell as foul.

The disease was first detected when former Majority Leader Nancy Pelosi famously said of the 2000+ page Obamacare bill:  “But we have to pass the bill so that you can find out what’s in it.”  Of course few members of Congress bothered to read it, and President Obama signed it two weeks later.  By now Obamacare also includes some 10,000-20,000 pages of rules and regulations, depending on who’s counting, that no one in Congress, perhaps no one anywhere, has bothered to read either.

Next the virus popped up across the country in Sacramento when the California Senate recently passed a single-payer health care bill with very few details and absolutely no funding plan.  Call it Medicare for everyone but paid for by no one.  Most estimates suggest a cost of some $400 billion, roughly twice the size of the state’s annual budget.  Even some senators felt a little badly about this neglect of legislative duty.  “Rather than rushing to pass it before it’s complete, we should keep it here and finish the work,” said Senator Steve Glazer (D-Contra Costa).  “This is the Senate kicking the can down the road to the Assembly and asking the Assembly to fill in all the blanks,” added Senator Ben Hueso (D-San Diego).

Finally, the disease has come full circle back to Washington, this time infecting Senate Republicans who are crafting their own repeal and replace health care bill.  For some reason, Senate Majority Leader Mitch McConnell wants to craft this legislation in secret—no one has even seen it, except a dozen or so Republicans, even though it is expected to be voted on in the next couple of weeks.  And when it does come out from under lock and key into the light of the Senate, McConnell has planned only 10 hours to debate and amend one of the most important bills of its time.  Ironically Nancy Pelosi, who supported speed and obfuscation last time, now says, “The American people and Members have a right to know the full impact of this legislation before any vote…”

So why all the secrecy?  I suppose it’s easier to craft and pass a bill if your opponents don’t have much time to study and attack it.  But that assumes that the point is to pass important legislation on narrow party-line votes.  Isn’t the point of a deliberative body like the U.S. Senate to deliberate?  Aren’t we looking to both sides to study and debate major policy proposals and reach some kind of agreement?  Otherwise, we have unsustainable policies, with the Democrats passing their version of health care on a party-line vote, only to have Republicans repeal and replace it on their party-line vote a few years later.  This is no way to legislate.

And what about not reading and understanding the details of a bill or, worse in the case of California, passing bills that don’t even include the details?  What that essentially says is that legislatures are now making conceptual statements in their bills, leaving the details to be filled in later, either by another legislative chamber or, worse, by administrative agencies.  It’s more like making speeches than crafting legislation.  Frankly it’s a kind of legislative laziness that we the people should not stand for.

Otto van Bismarck warned that “laws are like sausages, it is better not to see them being made.”  By now you have to wonder if that’s disrespectful to sausages.  Now we are not allowed to see the laws being made and, in many cases, neither are the legislatures that are making them.  It’s a long way back, but legislators need to find their way back to deliberation, leaving obfuscation and party-line roller coaster votes behind.

 

To view the column at Forbes.com:  https://www.forbes.com/sites/daviddavenport/2017/06/20/new-legislative-virus-spreads-hide-the-bill-dont-read-it-fill-in-the-blanks-later/#2f6268e257f3

Climate Change Reversal Reminds Us: We Live In A Roller Coaster Executive Order World (Forbes.com) June 2, 2017

Posted by daviddavenport in Op/Eds, Politics.
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One reason the Trump era seems a bit disorienting is that Washington, DC has become a roller coaster executive order world.  With Congress unable to accomplish much of anything, presidents simply forge ahead on their own.  A frustrated President Barack Obama, who could not get the legislation he wanted through Congress, set the tone for this when he said, “I’ve got a pen and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward…”  Well good for you Mr. President—but the problem is that the next president also has a pen and can move the ball in a different direction overnight, as President Donald Trump has been doing.

The latest example of this is President Trump’s decision to withdraw from the Paris Agreement on climate change.  For starters, we need to understand that the United States never officially joined the Paris Agreement.  In order to join a treaty, Article II, Section 2 of the U.S. Constitution requires that two-thirds of the Senate approve and that never happened in the case of the Paris Agreement.  Instead, President Obama decided to “adopt” it by means of an executive order, which only had the effect of saying the president likes the goals and will work toward them, but there was no legal U.S. commitment to the treaty.  Some proponents argue that the Paris Agreement is not technically a treaty, allowing a president to sign it without approval by the Senate.  But if that flimsy argument turns out to be true, it would simply mean the next president could undo it with his own executive order.

Either way the point is the same:  when presidents choose to act unilaterally, without Congress, their actions are very weak and subject to being undone by the next president’s own executive order.  The roller coaster of policy changes in these opening months of the Trump administration were really all set in motion by Obama’s failure to involve Congress in most of his key actions.  Obama’s executive orders on environmental regulations, climate change, immigration—which were themselves stretches of a president’s constitutional powers—were all left vulnerable to Trump’s policy reversals.

A president’s action with regard to international treaties is doubly weak because of the nature of international law itself.  Even a treaty such as the Paris Agreement on climate change is better understood as a set of international norms or goals to which the signatories aspire rather than a matter of firm law.  Laws have enforcement and penalties, consequences for people or nations that violate them.  None of this is present in the Paris Agreement—if a nation does not meet its goals on emissions, there is simply a report, nothing more.

In a sense, the drama of Trump’s policy reversals is the second act of a two-act play.  Act one was President Obama’s series of executive orders setting new policy in a variety of fields:  gun control, immigration, the environment.  Act two is primarily defensive on Trump’s part, undoing this set of Obama policies.

What this means, then, is that we have a systemic problem, not just a political one.  We have presidents acting unilaterally, with Congress watching from the sidelines.  We spend too little time on the front end building any kind of policy consensus and, therefore, we end up with a dizzying ride of ups and downs as different presidents simply sign bold but weak executive orders implementing their ideas.

Even Franklin Roosevelt, who built the modern and powerful presidency, realized his need to work through the Congress.  Other presidents who built lasting legacies—Lyndon Johnson’s Great Society or Ronald Reagan’s revolution—did the hard work of persuading and compromising with Congress.  Now the flimsy Obama record is reversed the same way it was enacted, by executive order of the president.  No wonder we’re disoriented and dissatisfied with Washington.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/06/02/climate-change-reversal-reminds-us-we-live-in-a-roller-coaster-executive-order-world/#22b9169c5bf2

C-SPAN 2 Book TV: “Rugged Individualism, Dead or Alive?” (at Commonwealth Club, San Francisco) May 31, 2017

Posted by daviddavenport in Op/Eds.
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My talk at the Commonwealth Club this month was recorded by C-Span 2 for their Book TV series.  The next showing on TV is scheduled for  12:00 Noon CA time on Sunday, June 4 on C-SPAN 2.  It will doubtless be shown again.

Here is a link to the session online:

https://www.c-span.org/video/?428232-1/rugged-individualism&start=59

Trump Is Captaining A Federal Ghost Ship–But Is That Good News Or Bad News? (Forbes.com) May 26, 2017

Posted by daviddavenport in Op/Eds, Politics.
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Four months into the new Trump administration, I decided to pick one department I know reasonably well and see what kind of people are being appointed to senior staff positions at the US Department of Education:  deputy secretary, undersecretary and assistant secretaries.  We know that Secretary Betsy DeVos stands for charter schools and choice, but sometimes it’s useful to look a level deeper and see what kind of leaders will be overseeing policy and implementation closer to the trenches.

What I learned was truly surprising and I am still not sure what to make of it.  Essentially no one has been appointed to fill any of those positions— deputy secretary, undersecretary, and all 11 assistant secretary jobs have the same listing:  “vacant.”  If the lights are on, nobody is home.  What can I tell about the quality and direction of the senior staff at the Department of Education?  Absolutely nothing.

I thought perhaps this was an aberration.  With Secretary DeVos coming from outside the professional education field, maybe she needs more time than other cabinet secretaries who can hit the ground running.  But then came another surprise:  this same pattern stretches across federal departments.  Four months in, we have a cabinet, but little or no senior staff.    In fact, Trump has not even named a permanent director of the federal Office of Personnel Management to oversee the staffing process.

 The Presidential Transition Tracker (yes, there is such a thing) tells us that of 559 senior leadership positions in the executive branch requiring Senate confirmation, there has been no nominee for 444 of them, or roughly 80%.  And only 36 have been confirmed.  No other president in the last 30 years had fewer than 60 nominations confirmed by this point in his term and the median of those five presidents is 94.  Yes, Senate confirmations are taking somewhat longer, but the real story is the low number of nominations.

 

But the plot thickens as we look for motives and effects.  When I mentioned this to a conservative scholar friend, he responded, “That’s the best thing Trump has done so far,” leaving the federal bureaucracy relatively leaderless.  I suppose this explanation takes a page from Ronald Reagan’s first inaugural address when he said, “Government is not the solution to our problem, government is the problem.”  If we leave the government bereft of staff leadership, it can do less harm, I suppose.  Maybe this is part of draining the swamp.

Trump must recognize, however, that though he has no senior staff, he still has a bureaucracy grinding out regulations and policies without his political leadership in place.  If he wants to leave federal agencies drifting, the problem is that they will continue to drift left.  The tendency of regulators is to regulate and the agencies are full of Obama-era people.  So this strategy of leaving the leadership positions empty is more likely to hurt the Trump agenda than to help.

Trump has said a number of times that the constituency he wants to help as president is the “forgotten men and women.”  Who are those people?  President Franklin Roosevelt wanted to help his “forgotten man,” someone Roosevelt thought needed government protection from the vagaries of free markets and the greed of economic royalists.  Trump’s forgotten men and women are being ignored and harmed by the government itself.  They pay taxes but don’t get what they want:  good schools, communities without violence, roads without potholes.  Veterans aren’t receiving decent medical care.   Unfortunately, none of those things will be fixed without Trump’s own appointees installed in the federal bureaucracy.

Whatever his motive, Trump is making a mistake by not gaining control of the vast federal bureaucracy through the appointment process.  The key to effective leadership is picking good people and supporting them.  That needs to happen in Washington very soon.  Without that, no swamps will be drained and no forgotten men and women will be served.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/05/26/trump-is-captaining-a-federal-ghost-ship-but-is-that-good-news-or-bad-news/#2941389df33f

Tax Reform Should Not Increase the National Debt (National radio commentary, Salem/Townhall) May 24, 2017

Posted by daviddavenport in Radio Commentaries.
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This is David Davenport of the Hoover Institution for Townhall.com.

 

One more dilemma for our leaders in Washington is that we desperately need tax reform, but we can’t afford to increase the national debt.

The debt is already large and growing. Our leaders say it’s nearly $15 trillion, but that doesn’t count another $5 trillion of debt to our own government, making the real number closer to $20 trillion. And Senator Ben Sasse has recently reminded us that even that number doesn’t count entitlement bills coming due that we can’t pay, perhaps pushing the number as high as $75 trillion.

But there are reasons to worry that it’s about to get worse. First, rising interest rates could make the debt more expensive. Second, Trump’s tax reform could bring in even less revenue. He’s counting on stimulating growth, but it will take a lot of growth to pay for lower tax rates.

Senator Mitch McConnell is right to say that tax reform must be revenue neutral to keep from growing the national debt.

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Congress Needs to Step Up Its Game (National radio commentary, Salem/Townhall) May 23, 2017

Posted by daviddavenport in Politics, Radio Commentaries.
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While everyone was evaluating Donald Trump at 100 days, we also should have been grading Congress.  With significantly lower approval ratings than the president, Congress has done very little.

With the same political party controlling the White House and Congress, how can that be?  The answer is that Republicans in Congress are no longer following their leaders but instead are beholden to political caucuses.  The moderate Tuesday group and the conservative Freedom Caucus now hold as much power as the Speaker of the House or a committee chair.

Leaders no longer even try to work with members of the other party, instead settling for party-line votes on everything.  Only five times in history has the president’s party avoided losses in mid-term elections, so Republicans now have about a year and a half to get it together.  Otherwise what should have been a period of power and influence will have been wasted.

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