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Area 45 Podcast: How Public Policy Became War May 24, 2019

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In case you haven’t noticed there’s a war on . . . terror, drugs, poverty, you name it. David Davenport, a Hoover Institution research fellow specializing in constitutional federalism and American politics and law, and co-author of the newly released How Public Policy Became War, discusses how the over-use of the word war has contributed to America’s policy and cultural divides.
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War is the New Normal in Washington (San Francisco Chronicle, Sunday Insight) May 19, 2019

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I have some bad news for Joe Biden: Donald Trump is not, as Biden said recently, an “aberration” from the bipartisan policymaking he remembers nostalgically in Washington. Biden’s “Republican friends,” and even many of his fellow Democrats, are not waiting eagerly for the kind of collegial dealmaking he says he will bring to Washington. Rather both politics and policy have shifted dramatically from a model of deliberation to one in which war is the new normal.

In this past week alone, Washington is talking about a trade war, a war with Congress, an abortion war and even a military war with Iran.

The shift didn’t happen overnight. President Franklin Roosevelt’s New Deal in 1933 was America’s French Revolution, changing everything including how public policy is made. Roosevelt was an early case study for Rahm Emanuel’s now famous line that “you never want a serious crisis to go to waste — it’s an opportunity to do things that you could not do before.” Claiming “the American people want action, and action now,” Roosevelt used the crisis of the Great Depression to drive Congress into passing his bills with little debate, issued a record number of executive orders and created a plethora of new federal agencies that is now the enormous federal administrative state. Following the Depression and World War II, there was no return to normal, and the modern, powerful, action-oriented presidency became a permanent fixture in Washington.

Modern presidents built on Roosevelt’s legacy by explicitly declaring war on intractable domestic problems with Lyndon Johnson’s war on poverty, the Johnson-declared but Richard Nixon-accelerated war on crime, Nixon’s war on drugs, Jimmy Carter’s “moral equivalent of war” on energy consumption, George W. Bush’s war on terror, and any number of lesser wars. After studying these domestic policy wars carefully, one can draw five conclusions:

(1) They do not solve the problem at hand.

(2) They create roadblocks to better policy solutions.

(3) They increase executive power at the expense of Congress.

(4) They are negative and destructive.

(5) They never end. All these domestic policy wars are still active.

Wars and their close cousin the national emergency — we currently live under 31 of those — have revolutionized how policy is made and carried out, and not for the better.

Take the war on poverty, for example. Lyndon Johnson wanted to do something about poverty and called his advisers together to draw up plans shortly before his first State of the Union message in 1964. Little was known about anti-poverty policy so his team proposed a series of small pilot programs. Never one to go small, Johnson instead declared “here and now unconditional war on poverty,” which was short on policy and long on rhetoric. Decades later, with poverty still high, Ronald Reagan would quip that we declared war on poverty “and poverty won.” Although the President’s Council of Economic Advisers attempted to declare victory in this war last year, that was based on redefining poverty and very few bought it.

Sacramento is not immune to the executive power grabs of war. Gov. Gavin Newsom has declared war on the death penalty, unilaterally imposing a moratorium on executions while saying he would “like to shut down the system of death.” Apparently he was not interested in consulting the Legislature and was willing to override California voters who have rejected anti-death penalty measures twice in the past eight years. Why deliberate when you can just win?

Trade wars, wars on the Constitution, culture wars and more. Enough already. While we probably cannot eliminate the war metaphor in public policy, there are several things we can do. We need to make Congress great again, encouraging it to exercise its war powers, its spending power, its ability to check the president. As important, we need to make Congress deliberative and bipartisan again, rather than merely taking a series of party-line votes. Power can be restored to committees and committee chairs to actually hold hearings, take testimony and seriously consider amendments, making bipartisan support for bills more likely. And “we the people” bear some responsibility too, needing to strengthen our anemic civic education programs and increase engagement in our democracy.

I saw a bumper sticker on the I-405 freeway in Southern California that reminded me of this moment: “There is no hope, but I may be wrong.” We trust America can slowly move away from war in public policy back toward deliberation.

David Davenport is a research fellow at the Hoover Institution and co-author, with Gordon Lloyd, of “How Public Policy Became War” (Hoover Institution Press, 2019). To comment, submit your letter to the editor at SFChronicle.com/letters.

Politics as War (A Law & Liberty podcast on the new book, How Public Policy Became War) May 16, 2019

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http://hwcdn.libsyn.com/p/3/d/b/3dbed2fe197d9736/David_Davenport.mp3?c_id=42617561&cs_id=42617561&expiration=1558026321&hwt=21ed7a205f0c0a18eb6099a41db168fe

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David Davenport, coauthor with Gordon Lloyd of How Public Policy Became War, discusses how we lost “the cool, deliberate sense of the community” in making public policy and instead turned to the metaphor of war as the basis for political action.

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David Davenport

David Davenport, a research fellow at the Hoover Institution and columnist for Forbes.com, was the president of Pepperdine University from 1985 to 2000.

About the Author

‘War Metaphor’ Warps US Policymaking (Hoover Institution Interview on New Book) May 10, 2019

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Davenport: ‘War Metaphor’ Warps US Policymaking

Friday, May 10, 2019
Hoover Institution, Stanford University

America’s political leaders no longer deliberate over the best policy solutions, but instead seek victory in political battles and wars, all at a great cost to the nation, says Hoover scholar David Davenport.

In a new book, How Public Policy Became War, Davenport and co-author Gordon Lloyd advocate a re-examination of politically destructive approaches to American governance, suggesting a return to the much more deliberative vision of the Founding Fathers. Hoover Press published the book on May 7.

Davenport is a Hoover research fellow specializing in international law and treaties, constitutional federalism, and American politics and law, and the former president of Pepperdine University (1985–2000). Lloyd is a professor of public policy at the School of Public Policy at Pepperdine University.

The Hoover Institution recently interviewed Davenport about the book:

What are the main findings or themes in your book?

Davenport: The Founders thought that the primary approach to policy-making would be deliberation, searching for what they called “the cool, deliberate sense of the community” over time, seeking the consent of the governed.  This is a far cry from how policy is made today.   Presidents now make policy unilaterally, not deliberatively, using executive orders, domestic policy wars, national emergencies and the like.  The US Senate, once called the greatest deliberative body in the world, hardly deliberates.  The war metaphor has captured policy-making in Washington and we are all worse off because of it.

What do you mean by “how public policy became war?”  

Davenport: In the book, we trace a series of steps that led to the present state of war in public policy.  First, Franklin Roosevelt used the crisis of the Great Depression to shift power to the federal government, and specifically, to the president and the administrative state.  Unfortunately, these emergency powers never went away and the powerful modern presidency was born and lives on.  Subsequent presidents figured out that they could exert further control over policy by declaring war on domestic problems—wars on poverty, crime, drugs, energy consumption and terror.  We also live under 30 states of national emergency declared by presidents.  Political leaders no longer deliberate over the best policy solutions, but instead seek merely to “win” a series of political battles and wars.

What did the Founders emphasize in their design of the US government? 

Davenport: The founders thought the people were really in charge and that government should be based on the consent of the governed.  Instead of a direct democracy, they created a federal republic with all kinds of filters:  representation, checks and balances, separations of powers and the like to facilitate deliberation.  The Founders would hardly recognize how Washington works today.

What lessons can we learn from the last half century of New Deal-driven government?  

Davenport: The New Deal was effectively America’s French Revolution.  It changed everything about how government works.  Issues that were once debated through congressional committees and amendment processes are now driven by the president.   A completely new administrative state of federal agencies was created to govern.  The government became about what Franklin Roosevelt called “action, and action now,” rather than deliberation and consent.

Should government reflect the priorities of each generation?  

Davenport: Yes, Thomas Jefferson acknowledged that the earth belongs to the living.  James Madison warned against “a blind veneration for antiquity.”  The point is not to go back to the founding and do everything the way they did, but to use the processes they set in motion—voting, checks and balances, separations of power, filters, constitutional amendments—to keep the government in touch with “we the people” in each generation.

What is the importance of “deliberation” and has it been lost in today’s government?  

Davenport: The Founders both modeled and taught a government of, by and for deliberation.  They deliberated both indoors—in Philadelphia and in ratifying conventions in all the states—and out of doors, through the Federalist Papers and other essays and speeches.  They debated and compromised their way to an extraordinary form of government.  The opening line of Federalist Number One calls on the people to “deliberate on a new constitution.”  The habits of deliberation—moderation, compromise, care, caution, seeking consent—are all weakened today.  And the structures and filters that helped support them are all in need of repair and strengthening.

Explain how Plato’s “divided line” in The Republic applies to today’s American Republic.  

Davenport: Plato’s “divided line” separated the philosophers who lived in the world of ideals from the rest of us who live among lesser things.  Like all analogies, this one is imperfectly applied to political life today, but we use it to focus on the filters at the line between the people and their leaders that should be facilitating deliberation, not war.  Specifically, we believe the role of the press, of political parties, of civic associations and of federalism could help at the line between the people and their political leaders.  We also propose improvements above the line, primarily strengthening Congress and making it more deliberative, and with the people below the line, especially in the need for greater civic education and engagement.

Any other issues you’d like to address?  

Davenport: Metaphors do matter and the war metaphor in politics has done great harm.  We need to better manage the war metaphor and work toward better ways of understanding and carrying out a deliberative democracy.

Davenport has coauthored two other Hoover Press books with Gordon Lloyd: Rugged Individualism: Dead or Alive? (2017), and The New Deal and Modern American Conservatism: A Defining Rivalry (2013). 

California Chips Away at Individual Freedom (National radio commentary, Salem/Townhall) May 8, 2019

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California has decided sodas are the new tobacco, with five bills introduced in the legislature to limit sales. If they pass, you won’t be able to buy sodas larger than 16 ounces, you won’t find them in check-out lines, and there will be extra fees.

New York introduced a bill banning large sodas and it was blocked by a judge. While it was in effect the data showed people actually bought more sodas. And there are very different interpretations of the effects of a soda tax.

But the real issue is individual freedom. Isn’t drinking a soda your decision, not the government’s? If they are dangerous to health, isn’t education the answer, not regulation?

The nanny state keeps regulating us more and more at the cost of individual freedom. What’s next: banning meat and dairy products in school lunches? Oops, that bill has been introduced in California also.

http://www.townhallreview.com

“The Rise of the War Metaphor in Public Policy” (Defining Ideas) May 8, 2019

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Defining Ideas ran an excerpt of Gordon Lloyd’s and my new book, How War Became Public Policy.

The essay may be read here:

https://www.hoover.org/research/rise-war-metaphor-public-policy

How Joe Biden Helped Public Policy Become War (Washington Examiner) May 7, 2019

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When I share with people that Gordon Lloyd and I have published a new book, How Public Policy Became War, they invariably nod and comment on the timeliness of the topic. Of course, they are thinking of the partisan war-like environment in Washington in which very little is done, and that is part of the story. As former Vice President Joe Biden is learning in his presidential campaign, however, the root of the problem is longer and deeper than today’s hyper-partisanship.

When you have been in politics as long as Biden has, you develop a track record that is subject to attack, especially as times and politically correct opinions change. It turns out that Biden was a strong supporter of two domestic policy wars, the war on drugs and the war on crime, that are now unpopular with Democrats. In the 1980s and 1990s, Biden was known as tough on crime and said that President George H.W. Bush’s war on drugs did not go far enough. As chairman of the powerful Senate Judiciary Committee, Biden led the charge in setting longer prison terms for drug offenders and building more prisons. Some say he invented the term “drug czar” to describe the general who would oversee that war.

As Lloyd and I trace in our book, modern presidents have developed a bad habit of declaring wars on serious domestic policy problems they do not know how to solve. After President Franklin D. Roosevelt laid the foundation, with his revolutionary New Deal mobilizing the country for an unsuccessful fight against the Great Depression, President Lyndon B. Johnson formally declared “war on poverty” in 1965, another policy failure after 50-plus years. This was followed by wars on crime and drugs, along with President Jimmy Carter’s “moral equivalent of war” on energy consumption, the decades-long war on terror, and several lesser wars.

All these domestic policy wars were fraught with several problems:

  1. They do not solve the problem at hand.
  2. They create roadblocks to better policy solutions.
  3. They increase executive power at the expense of Congress.
  4. Their imagery is negative and destructive.
  5. They never end.

When paired with their close cousin the national emergency, and we live under 31 of those today, the entire process of making and implementing public policy is changed, and not for the better.

Biden’s leadership in the war on crime is an example of these policy failures. The war on crime was problematic from the beginning because we were not sure who the “enemy” was or what tactics made sense. Were we going after the supply or the demand? We did not know.

Politicians, as they are wont to do, felt a need to “do something,” even though their law enforcement approach is not a matter of federal, as opposed to state or local, government. The drug problem has not been solved and, in the meantime, the number of drug offenders from drug offenses grew 10-fold between 1980 and 2015 and the U.S. now has the largest prison population in the world. Presidents Ronald Reagan, George H.W. Bush, and Richard Nixon, presidents who led these efforts, are gone. Biden, who led from the Senate, is left holding this damaged bag of policy goods.

As Barack Obama’s chief of staff Rahm Emanuel famously said: “You never want a serious crisis to go to waste,” and presidents have been declaring wars and crises in order to consolidate greater federal power at the expense of states, and more executive power at the expense of Congress. President Trump’s national emergency to build his border wall, over the explicit objection of Congress, is a current example of government by war and emergency and not by deliberation, as the founders intended.

I liked the bumper sticker I saw on a California freeway: “There is no hope but I may be wrong.” In the final chapter of our book, we propose ways to better manage the war metaphor, including making Congress not only great but also more deliberative again, and strengthening the filters between the government and the people. It is high time we do so before everything becomes a war or emergency led solely by the commander in chief.

David Davenport is a contributor to the Washington Examiner‘s Beltway Confidential blog. He is a research fellow at the Hoover Institution. He is the co-author, with Gordon Lloyd, of How Public Policy Became War, published May 7.

To read the column at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/how-joe-biden-helped-public-policy-become-war

Davenport-Lloyd Book, “How Public Policy Became War” Available May 1 April 30, 2019

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Gordon Lloyd and I are publishing our third book together this week, “How Public Policy Became War” (Hoover Institution Press, 2019).

It is available through Hoover Institution Press or, like everything else in the world, through Amazon:

It recounts the story of how the making of public policy in America, which the Founders thought would be done through deliberation, has instead become war.  We begin, as all our books do, in the New Deal when Franklin Roosevelt built out the modern and powerful presidency, turning it into a tool of “action, and action now.”

The story builds as modern presidents have declared war on all manner of domestic policy problems:  poverty, war, crime, drugs, energy consumption and terror, to name a few.  We also live under 30 states of national emergency, which we describe as war’s close cousin.

In the final chapter, through reference to Plato’s “divided line,” we show how the war metaphor might be better managed.

 

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.

To read the column at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/the-international-criminal-court-crashes-and-burns-over-afghanistan

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.

To read the column at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/congress-forgot-investigations-should-be-connected-to-legislation