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Ordinances Banning Public Sleeping Are Unconstitutional Cruel And Unusual Punishment? Seriously? (Forbes.com) August 17, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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At first I didn’t even read the story about whether laws against the homeless sleeping in public places violated the 8th Amendment prohibition against cruel and unusual punishment. I figured it was just one more crazy story to filter out in the effort to retain my sanity when reading our local paper, the San Francisco Chronicle. Boy was I wrong. This wasn’t just another “only in San Francisco” story—this was the Obama administration’s Department of Justice (DOJ) telling the Federal District Court in Idaho that Boise’s ban on public sleeping as applied to the homeless was cruel and unusual punishment. And it’s getting the attention of cities everywhere.

You really have to appreciate all those lawyers back in Washington acknowledging that homelessness is a huge problem, pointing out that on any given night in America half a million people are homeless, with 42% sleeping in public locations. And then going on to tell the nation’s cities and mayors, “Sorry, but the way you are dealing with it, banning public camping and sleeping, is unconstitutional. Oh, and by the way, good luck with figuring out a different solution to this huge social problem. We’ve got your back—with a sharp legal filing sticking in it.”

Let’s agree that homelessness is a huge and complicated issue, compounded in recent years by the recession, tight housing markets, and less money for mental health, public housing and other social services. While cities, churches and nonprofits try to establish shelters and services, local governments also seek to keep the problem away from public parks and spaces, with laws against camping or sleeping in public or in vehicles. The latter is admittedly a bit of a defensive holding position while trying to build up the resources to tackle homelessness in more productive ways.

So into that delicate policy balance steps a team of federal lawyers from Washington, D.C.—“I’m from the government and I’m here to help,” Ronald Reagan liked to joke. And with the crudest of instruments, a legal filing, they seek to change hundreds of local policies with a creative interpretation of the constitution and a word processor. Historically, there is judicial precedent for the notion that one should not be punished for one’s condition (for example, addiction), but obviously what cities are seeking to ban is certain conduct. Now the argument becomes more complicated when you weigh whether the homeless, in certain cities at particular times, have a choice in where to sleep. But this feels more like a dilemma to be managed than a law seeking a ban. We await the court’s decision on this, but already many cities are nervous about the DOJ’s opinion.

This is but the latest example of a growing problem—lawyers and courts as engines of social change. As Chief Justice Roberts recently wrote in the his dissenting opinion in the gay marriage case: “Federal courts are blunt instruments when it comes to creating rights. . .[T]hey do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.” This is far too complicated a matter to resolve with a quick and relatively easy constitutional ban.

Let’s face it, these DOJ lawyers are, as our son used to say about his big sister, throwing their weight around. Courts have gone from being “beyond comparison the weakest of the three departments of power,” as Alexander Hamilton put it in Federalist 78, to the strongest. As recently as 1989, legal scholar Bruce Ackerman described courts as sitting in the last car of the train and deciding whether to throw on the brakes—now they’ve moved to the engine, powering social policy and deciding which track to take. Courts are now the quick and easy route to change, but representative government, with its ability to study matters, engage in debate and experimentation, is the better way to tackle social problems.

To read story at Forbes site:  http://www.forbes.com/sites/daviddavenport/2015/08/17/ordinances-banning-public-sleeping-are-unconstitutional-cruel-and-unusual-punishment-seriously/

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Making Sense of the Republican Presidential Race: It’s Like Major League Baseball in August (Forbes.com) August 12, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Politics.
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How do you make sense of a Republican presidential race with 17 candidates running 15 months before the election? It’s a lot like making sense of the Major League Baseball season in August, two months before the World Series. My logic parallels that of former Dodger manager Tommy Lasorda who said: “There are three types of baseball players: Those who make it happen, those who watch it happen and those who wonder what happens.”

For starters, you have to know what you are trying to “make happen” at this stage of the season. No team is trying to win the World Series in August; instead the goal is to get in position to be one of the 10 (of 30) teams to make the playoffs where, as they say, anything can happen. Likewise, 17 Republicans are not trying to be the final party nominee this early, they’re just trying to be one of the 3-5 candidates left standing next summer. As in baseball, that’s really about developing momentum and finding the money to remain in the race as long as possible.
Then to understand baseball at this stage, you’d have to look at the races within the race: which teams are competing for the automatic playoff berths of division championships and which teams are realistically positioning themselves for the less secure wild-card slots? Fewer people understand that, among 17 candidates, there are mini-races as well. Jeb Bush and John Kasich are vying for the “moderate” slot in the final rounds. Donald Trump can afford to stay in the race as long as he wants, holding the special “reality star” berth. All the rest are competing to be among two or so “conservatives” left standing a year from now.

Of course, many teams are not realistic contenders this year and are positioning themselves for the future, and so too are some of the candidates. Some are staking out particular issues and constituencies, such as Mike Huckabee and Rick Santorum with conservative Christians. As a woman, Carly Fiorina is useful in attacking Hillary Clinton and her record. Some are really running for vice president (Carly Fiorina, Bobby Jindal, and even Marco Rubio come to mind) and several are building war chests and name recognition for the future.

So in Tommy Lasorda’s trilogy, who is making it happen? I would say Bush, Walker and Trump, with Rubio still a possibility. Bush will be the moderate finalist, Walker the conservative, and Trump the reality wild card. Rubio, or someone else, might join Walker as a conservative near the end.

Notably, Donald Trump is this year’s wild card who may become a new norm. As a reality television personality, he uses his platform to connect with people’s anger and frustrations about politics. He has the money to stay in the race as long as he wants to and you know what? Staying in the race helps build his personal “brand” no matter how well he fares politically. The last time we had a candidate of this sort was Ross Perot in 1992, who ran as an independent and collected an amazing 19% of the popular vote but none of the all-important electoral votes. He arguably did split the Republican votes sufficiently to prevent George W. Bush’s reelection, which is a problem for the party again this time if Trump continues next fall as an independent candidate. Imagine 2020’s version of the Kardashians or Jenners running next time.

A few are, in Lasorda’s words, at least watching it happen: Ted Cruz, Rand Paul, Chris Christie, and perhaps Carly Fiorina. And the rest, well no one is likely to even remember that they ran once it’s all over. Polls are already at work deciding who will be in the field when the next debate moderators say: Play ball. Like baseball, presidential politics is a long season.

See the article at Forbes.com:

http://www.forbes.com/sites/daviddavenport/2015/08/12/making-sense-of-the-republican-presidential-race-its-like-major-league-baseball-in-august/

Why Has Chief Justice Roberts Moved From Umpiring To Batting On Healthcare? (Forbes.com) June 26, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Could someone please remind Chief Justice John Roberts of his opening statement to the Senate Judiciary Committee in his confirmation hearings in 2005?  That’s when he described his all-important judicial philosophy by saying:  “Judges are like umpires.  Umpires don’t make the rules; they apply them…I will remember that it’s my job to call balls and strikes and not to pitch or bat.”  I ask because his majority opinion in the King v. Burwell case this week is the second time he has rewritten the Affordable Care Act (ACA) in order to save it, moving out of the umpire’s stance directly into the batter’s box.

In King v. Burwell, the Court needed to decide whether the phrase “an Exchange established by the State” meant just state or could include federal exchanges.  Justice Roberts, writing for a 6-3 majority of the Court, found the language was ambiguous, which permitted the Court to look more widely at the purpose of the law and decide its purposes would not be accomplished if state didn’t also mean federal.  In his sharp dissent, Justice Scalia said, “Words no longer have meaning if an Exchange that is not established by a State is “established by the State.”

The general view around Congress had been that the language had simply been a mistake.  Indeed, the Court acknowledged that the ACA “contains more than a few examples of inartful drafting.”  The Court cited a few reasons for this, including debates behind closed doors and the use of a “reconciliation” legislative procedure that limited debate and amendments.  I could add a couple more:  passing a huge overhaul of a major system like healthcare without sufficient care (Nancy Pelosi’s famous, “but we have to pass the bill to find out what’s in it”) and slamming it through on a straight party line vote.  As the old car repair commercial used to say, you can pay me now (preventive maintenance, getting it right) or you can pay me later (repairs) and this law has been paying later.

But Roberts apparently does not want the ACA to pay too much for its repairs by returning it to Congress to get it right.  So twice now, he has essentially rewritten the bill to fix it himself.  In the first case, the Court having found that Congress lacked power to pass the ACA under its commerce clause power, Roberts reinvented its basis as a bill valid under the taxing power.  This time, he reinvented State Exchange (capital letters) to mean state and federal.

It is not the role of the Court to fix another branch’s mistakes.  So why is Roberts willing to do this?  I believe it is a misguided calculation that he has to engage in a little judicial activism in repairing the law in order to avoid a perception of even greater judicial activism by invalidating the law.  He seems to be so concerned about lowering the volume on controversial Supreme Court decisions that he is willing to be a judicial activist in order to protect the Court’s reputation against charges of judicial activism.  It makes no sense, in the same way that the officer who said “We had to burn down this village in order to save it” made no sense in Vietnam.

John Roberts turns out to be another disappointing judicial appointment for conservatives, moving strike zones, saying words have no obvious meaning, and rewriting the law to fix Congressional errors.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/25/why-has-chief-justice-roberts-moved-from-umpiring-to-batting-on-healthcare/

The Supreme Court Removes One Raisin Of The Smothering New Deal Legacy (Forbes.com) June 23, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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According to conventional U.S. history texts, Franklin Roosevelt’s New Deal ended sometime in the late 1930’s.  Unfortunately, that is one more urban myth that needs to be exposed on Snopes.com. To our detriment, the New Deal is alive and well, still serving as the basic framework for U.S. domestic and economic policy.  Indeed, Time magazine was prescient when it featured a cover shortly after Barack Obama was first elected in November, 2008, showing the new president with Roosevelt’s top hat and long cigarette holder, proclaiming “A New New Deal,” since Obama has continued to exercise the powers and extend the policies of the New Deal.

Finally the U.S. Supreme Court struck a blow against the antiquated New Deal agriculture policies this week, declaring on an 8-1 vote that the Raisin Administrative Committee, overseen by the U.S. Department of Agriculture, took a farmer’s raisins in violation of the 5th Amendment “takings” clause of the Constitution.  Still, 80 years after the Depression, the government exercises the power to take crops from farmers in order to keep supplies down and prices up.  So Fresno, California, farmer Marvin Horne must be paid in full for the crop that was taken from him as part of the government price support program.  That’s one small raisin for farmer Horne, one big bag of raisins for rolling back the New Deal.

Unfortunately it is not clear how widely this may affect other agricultural subsidies since they do not all involve “taking” the crop.  The USDA said it would review the Supreme Court ruling and “provide guidance based on the decision in the near future.”  Even dissenting justice Sonia Sotomayor admitted that the raisin regulations may be “outdated and by some lights downright silly.”  But this is the legal legacy we live with when emergency laws and regulations from a worldwide depression are not removed or even reviewed when the emergency is over.

Another such relic of the New Deal may be removed later this month when authority for the Export-Import Bank expires.  It, too, was established by Executive Order of President Roosevelt to facilitate loans with the Soviet Union.  Now it appears to be one more measure still on the books long after its purpose has vanished.  Although its proponents argue it helps small businesses compete abroad, Boeing (not exactly a small business) received most of its money last year.  Amazingly Hillary Clinton still wants to put up a fight for it, saying she wants an Export-Import Bank “on steroids.”  Alas, the New Deal legacy will be part of campaign 2016.

Believe me, there is plenty more from the New Deal that needs to be reexamined.  It was during that period that executive power began to grow dramatically, with Roosevelt saying the president needed war-like powers to deal with the economic emergency.  Again the courts have been somewhat helpful here, with the Supreme Court ruling that the president cannot do end-runs around the Congress with “recess appointments,” and another federal court ruling recently that he does not have the power to change the immigration laws unilaterally.  Likewise huge growth in the national debt was a gift from the New Deal that keeps on giving today.

It was also during the New Deal that the commerce and spending powers of the government under the Constitution grew dramatically.  Again the Supreme Court has taken a little wind out of those sails, declaring that Obamacare was not justified under the Commerce Clause, even while upholding it under the taxing power, and also warning that Medicaid regulations bordered on an unconstitutional stretch of the spending clause.  Of course Obamacare itself is a major addition to the New Deal legacy of Social Security.

President Obama recently made news when he said in an interview that “racism casts a long shadow and is still part of our DNA that’s passed on.”  Unfortunately the same thing could be said about the New Deal—kudos to the Supreme Court for at least trimming its sails a bit.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/23/the-supreme-court-removes-one-raisin-of-the-smothering-new-deal-legacy/

Rugged Individualism Is Exactly The Wrong Case for Obamacare (Forbes.com) June 15, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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President Obama has been heating up the rhetoric about Obamacare as the Supreme Court prepares to announce its decision on whether the whole program might collapse over illegal subsidies.   In a press conference, he meddled in the work of the judicial branch, saying the Court should never have taken the case in the first place.  The next day, he summoned up American rugged individualism in its defense, saying:  “The rugged individualism that defines America has always been bound by a set of shared values; an enduring sense that we are in this together. That America is not a place where we simply ignore the poor or turn away from the sick. It’s a place sustained by the idea that I am my brother’s keeper and I am my sister’s keeper.” I’m sorry, Mr. President, but America’s rugged individual—bounded or not– is the last place to look for defense of federalizing healthcare.

The idea of the rugged individual was captured in historian Frederick Jackson Turner’s “frontier thesis,” explaining how the American character had been developed battling the elements and conquering the territory of the American West.  The first use of the actual expression “rugged individualism” was by Herbert Hoover in his campaign for president in 1928, explaining why the great concentration of federal power built up during World War I should be returned to the people in peacetime.  He contrasted the American system of self-reliance and “rugged individualism” with the European systems of paternalism and socialism.

Yes, it is true that American rugged individualism is often accompanied, even limited, by something else.  But that something else is not federal mandates such as Obamacare.  Perhaps what Obama was aiming for, but missed, was what the French journalist and philosopher Alexis De Tocqueville observed when he visited America, noting that Americans were forever associating and helping one another, whether through churches or civic associations of every shape and form.  Even life on the American frontier involved a lot of collaboration, along with individualism.  But these were voluntary community efforts, a kind of public virtue, not statism.  Efforts by the state—such as Obamacare—are precisely the opposite of individualism.

Beginning with Progressivism and the New Deal, the modern welfare state became the alternative to rugged individualism, and Franklin Roosevelt’s “forgotten man” began to replace the “rugged individual” as the object of federal policy.   The two should ideally live alongside one another, if Washington leaders would allow room for both.  So, for example, even among the excesses of Lyndon Johnson’s Great Society, there would nevertheless be space for individual and corporate health care policies for rugged individuals, and then the safety net of Medicare created for the forgotten man.

But, alas, Obamacare neither sought nor found a balance between the rugged individual and the forgotten man.  It turned out that if you liked your policy, you probably could not keep it, Mr. Rugged Individual, as millions of policies became “illegal” because they did not cover everything Obamacare insisted upon.  Of course it’s hard to find balance when you ram through a massive overhaul of the health care system on a party-line vote, without a single member of the “other” party voting in favor.  So rather than creating two systems—one a rugged individual’s personal or workplace policy and the other a safety net for the forgotten man—Obamacare created one, large system, essentially federalizing healthcare.   This is not rugged individualism bounded by public virtue—this is a federal takeover, pure and simple.

While there is widespread agreement that individualism is part of the unique character of Americans, policymakers in Washington have been steadily killing it since the New Deal.  It would help if the President understood rugged individualism and then allowed it a place at the policy table, rather than continuing to suppress it in the quest to federalize everything from education to healthcare and the environment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/06/15/rugged-individualism-is-exactly-the-wrong-case-for-obamacare/

Apparently 90% of Harvard Faculty Can Agree On Something: Giving To Democrats (Forbes.com) May 7, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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I guess we now know why William F. Buckley famously said:  “I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.”  According to a recent study by the Harvard student newspaper, 84% of Harvard faculty giving to political campaigns goes to Democrats.  In the College of Liberal Arts and the Law School it was a stunning 96% and 98% respectively, and 86% at the fair and balanced Kennedy School of Government.  Even in one typical campus bastion of conservatism, the business school, 62% of political giving went to Democrats.

In one sense, this is hardly news, except for the near unanimity of any action on the part of presumably thoughtful, independent people.   An old saw says that faculty can’t agree on anything except to hang the dean, and even then they can’t agree on when and where.  So having hundreds of smart, notoriously independent people all decide to give their money to one political party over another surely makes a powerful statement.  Even the Dean of the Harvard College of Arts and Sciences, Michael D. Smith, admitted to being “amazed at how high that number is.”

Lest you jump to the conclusion that the Harvard Crimson must have cooked up some crazy statistical anomaly, previous studies tend to support these results.  In 2012, Campus Reform studied giving by faculty and staff at the 8 Ivy League colleges and found that $1,211,267 was given to President Obama and only $114,166 to Mitt Romney.  Brown University led the pack with 96% of faculty and staff donations going to Obama, with Dartmouth (where an occasional conservative voice is at least heard) and the University of Pennsylvania bringing up the rear with 94% donating to the Obama campaign.

In an earlier day, a few studies of professorial voting registrations were collected.  In one study of 15-20 California institutions, nearly all had 80%+ faculty registered as Democrats, with only two institutions, both of which had reputations for being quite conservative, having close to 50/50 voter registrations.  Obviously just being balanced politically looks wildly conservative in the Alice in Wonderland world of higher education.  An article, “Why are Professors Liberal?” by sociologists Neil Gross and Ethan Fosse summarizes some of these studies, noting that the liberal tendency of the professoriate has “grown over time.”

So what, one might say.  At least that’s what Harvard officials said, more or less.  Harvard Business School professor Jay W. Lorsch, who gave approximately $65,000 to Democratic causes from 2011-14, said:  “I think most faculty here are pretty careful about not imposing their political views on students.”   Even if that is true—and having been on college campuses myself for over 40 years I do not believe it—UCLA Professor Alexander Astin has long pointed out that students learn more from the “implicit curriculum” of a University than what is actually taught.  The implicit message is clear:  it’s only ok, or intellectually responsible, to be a Democrat.  Academic debates are framed within a narrower spectrum.  Courses are accepted in the curriculum and new faculty are hired—or not—from that fundamental premise.

The fact is that American higher education has come to represent a diversity of everything but ideas.  We seek ethnic diversity, gender diversity, sociological diversity, geographic diversity—but not a diversity of ideas or points of view.  And, after all, isn’t that supposed to be the fundamental business of education, the pursuit of ideas?

On the seal of my alma mater are the words “the wind of freedom blows.”  In real life, sometimes those winds blow left, sometimes right, often center.  But not in the artificial and dangerous world of higher education, and certainly not at Harvard.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/05/07/apparently-90-of-harvard-faculty-can-agree-on-something-giving-to-democrats/

Bringing A Little Sanity To Indiana’s March (Religious) Madness (Forbes.com) March 30, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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You would think the sky is falling in Indiana.  Hundreds of protestors carried signs at the state capitol Saturday:  “hate costs the state” and “liberty for all Hoosiers.”  The mayors of San Francisco and Seattle rushed to announce that city employees could not travel to Indiana on government money anymore.  The new wise men of public policy—basketball analysts Charles Barkley and Reggie Miller and the Silicon Valley CEOs of Apple, Salesforce and Yelp—all decried hate and discrimination in Indiana.

But wait.  What really happened in Indiana?  The state enacted a Religious Freedom Restoration Act.  The U.S. Senate voted 97-3 for such a federal law in 1993 and President Clinton signed it.  Forty percent (19) of states have such laws, and others are considering them.  These laws—including Indiana’s version—essentially do one thing:  they set a legal standard in lawsuits where a defendant feels his or her religious freedom is being harmed by the application of a law or regulation.  More specifically, these religious freedom laws require a showing that the government has a “compelling interest” in whatever regulation is in question and that it is meeting that interest in the “least restrictive way” to the individual’s religious practice.

The words “gay” or “gay marriage” do not appear anywhere in the law.  A classic case under the federal law was whether members of a New Mexico church might imbibe psychotropic tea as part of their religious ceremonies in the face of a law against such substances.  The Supreme Court said that the state did not have a compelling interest in preventing that kind of private religious practice.  Or in Minnesota where a court said that a law requiring vehicles including Amish buggies to use bright fluorescent lighting should have used an alternative less restrictive to Amish religious practice such as reflective tape or kerosene lanterns.

But, of course, the knee-jerk reaction is that this law was passed to allow Christians to discriminate against gays and gay marriage and it is therefore hateful, discriminatory and unacceptable.  So far, however, no such bill has actually trumped local nondiscrimination laws, such as exist in Indianapolis and a dozen other Hoosier cities.  And in both the states of Washington (where a florist refused to serve a gay wedding) and Colorado (a baker did the same), courts have held that religious rights do not trump anti-discrimination laws against gays.  Admittedly neither of these states had a religious freedom restoration law, but again that only provides a legal standard or balancing test, not necessarily implying any different outcome.  How they are actually applied by courts vis-à-vis gay marriage is yet to be seen.

If the law on this is different than the protests suggest, so is the politics.  The federal law was sponsored by then-Congressman Chuck Schumer, apparently in line to lead the Democrats in the U.S. Senate.  And it was signed by Democrat Bill Clinton.  Then state senator Barack Obama voted for Illinois’ version of the bill.  Of course this was before his views “evolved” but it at least suggests that historically these bills have not been about hate and discrimination.

In the current white-hot debates over gay marriage, I submit that what the Indiana and other bills actually do is help manage an important policy dilemma.  As a society, do we value gay rights?  Increasingly the answer is yes.  Do we value religious freedom and practice?  Historically the answer is yes.  We value both, but they do not always live easily together.  What this bill does is help courts manage the dilemma—while protecting against discrimination, also protecting religious rights where the state has no compelling interest in violating them or where alternative policies less restrictive to religious rights should be pursued.

In a sense, there’s nothing to complain about in such a bill which sets up an appropriate constitutional balancing test.  The proof of the test will be in its application in the courts, not in its enactment.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/03/30/bringing-a-little-clarity-to-indianas-march-religious-madness/

Jeb Bush a ‘reform’ conservative? America doesn’t need conservatism lite (FoxNews.com) February 27, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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I am wary of the adjectives Republican presidential candidates like to place in front of the word “conservative.” George W. Bush ran as a “compassionate conservative,” though after 9/11, when his administration turned from domestic policy to national security, he became better known as a neoconservative.

John McCain was a “maverick conservative” and Mitt Romney, a pragmatic businessman without a clear political philosophy, tried to market himself as “severely conservative.” And now comes the leading candidate for the 2016 Republican presidential nomination, Jeb Bush, who has styled himself a “reform conservative.”

Isn’t anyone content to be just a conservative anymore?

Richard Nixon popularized the classic Republican campaign strategy: first run to the right to secure the party’s nomination, then run toward the center to win the general election. But today’s Republican presidential candidates apparently feel the need to build all that ambiguity into their stance from the start.

Yes, I’m a little bit right, but also leaning into the center. But it doesn’t really work. It leaves conservatives rightly feeling like they’re being served conservatism lite: a third less calories than your regular conservatism but also less filling. And in the general election, the adjectives disappear anyway as the liberal opponent attacks the noun: he’s a conservative.

So now I am wary about Jeb Bush proclaiming himself a reform conservative in his big speech in Detroit recently. I get the reform part—his two signature policy platforms have been education reform and immigration reform. But his positions on those issues are not classically conservative. His idea of reform conservative feels a little to me like one of those oxymorons: jumbo shrimp or virtual reality. The dictionary definition of reform is suitably vague: making changes in order to improve something. In that sense, everybody wants to reform something. But what is conservative reform, and is that what Jeb Bush is really about?

To me, Bush’s idea of reform conservatism sounds more like big government conservatism. Take education reform for example. For Bush, who famously led such reforms as governor of Florida, it meant more government testing and accountability. It was related to his brother’s No Child Left Behind and Common Core, movements under fire among conservatives for turning K-12 education, the classic responsibility of state and local government, over to the feds. If not a philosophical dilemma, this is at least a political problem for Bush, since polls show conservatives overwhelmingly (94% accordingly a Pew Research Center poll) oppose things like the Common Core curriculum. A Bloomberg/Des Moines Register Iowa poll of likely 2016 caucus participants shows nearly 2/3 feel Bush’s positions on immigration and education reform are problematic to them.

And let’s face it, big government conservatism did not work well for Jeb’s dad and brother. George H.W. Bush, seeking a “kinder and gentler nation,” ended up with sufficient government growth that he turned his back on his no new taxes pledge and was voted out of office. Similarly, George W. Bush’s No Child Left Behind and Medicare prescription drug coverage have grown into expensive federal expansions. So conservatives are right to be wary of Jeb Bush’s reform conservatism turning out to be another form of big government conservatism—essentially using the federal government for conservative policy ends, rather than limiting government power and size.

There is a more promising version of reform conservatism promoted by some young intellectuals and policy thinkers. Their view is that conservatives need to demonstrate more specifically how conservative ideas about free markets actually help the middle and lower classes better than an overgrown welfare state. They are enamored of using subsidies, tax credits and other government tools to help middle-income households, especially. One thing they have right, I think, is that the heart of conservatism, individual liberty, has become an abstraction and people need to see how it matters in their lives. But, at this point, these ideas are more of a conversation than a movement, and are not yet ready for a prime time race to the White House.

Barry Goldwater, in some ways the father of the political conservative movement, spent a lot of time and energy countering the influence of the Eastern liberal Republican establishment and remaking the party in a more conservative image. My fear is that all these adjectives attached to conservatism today will lead us back toward a form of big government Republicanism, not forward toward greater liberty.

Link to Foxnews.com:  http://www.foxnews.com/opinion/2015/02/27/jeb-bush-reform-conservative-america-doesnt-need-conservatism-lite/

Brace Yourself For The Most Important Supreme Court Case Of The Year (Forbes.com) February 27, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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On Wednesday, the U.S. Supreme Court will hear oral arguments in its most important case of the year, King v. Burwell.  The case is most obviously significant because it could invalidate subsidies for low income individuals covered by Obamacare in the approximately two-thirds of states that did not establish their own exchanges.  This in turn could leave millions of people essentially without healthcare, unless and until Congress or the states did something to repair the problem, all of which is being worked on now.

But at a more subtle level, this case is an important indicator of what the Supreme Court is willing to do (and not do) in an era of deeply divided government in Washington.  The question here is whether the Supreme Court should play the role of proofreader or auto-corrector when Congress legislates without sufficient care and is too conflicted to address the problem itself.  You would like to think that a sweeping change such as Obamacare was worked through with great care, including lots of drafting, testimony, amendments and compromise, all the hallmarks of good legislative work.  But if you think that’s how Obamacare was adopted, your memory is faulty.  The bill itself was massive (one version ran over 2400 pages, the final 906 pages), prompting House Speaker Nancy Pelosi’s plea:  “But we have to pass the bill so that you can find out what’s in it.”  And the most sweeping social program since the 1960’s was slammed through on a straight party-line vote, with no Republican support.

Even when a bill is passed, it’s just the beginning.  Various agencies then must adopt regulations and structures to implement the law (so far 10,000 pages and still counting).  And, of course, in this case President Obama has weighed in through executive orders, unilaterally (and probably illegally) changing and delaying aspects of the law.  Even Chief Justice Roberts took it upon himself in an earlier case to give the law an extreme makeover, transforming it from an unconstitutional penalty into a constitutional tax in order to save it.

So now the Supreme Court is faced with the clear provision in the law that subsidies are available to people who live in states with healthcare exchanges “established by the State.”  Since most states elected not to establish their own exchanges, the plaintiffs argue that no subsidies should be available in those states.  It has been described as a “glitch” or a “drafting error” by Congress.  And so, the argument goes, the Supreme Court ought to fix it, and simply declare that state-run exchanges really meant to include federal exchanges as well.   To refuse to do so would be, as New York Times commentator Timothy Egan put it, “one of the most brazen manipulations of the legal system in modern times.”

In fact, it is the other side that is straining to redefine clear terms.  Courts are bound by the “plain meaning” rule of interpretation:  unless a statute provides a specialized meaning, courts should apply the ordinary meaning of the word.  Clearly, if Congress meant something other than “established by the State” it could and should have said so.  And the obvious legal approach for any court to take in such a case is to rule that the law means what it says and send it back to the legislature if they want it to mean something else.  Courts are not legislators—as Chief Justice Roberts famously said in his confirmation hearing, judges are more like umpires, calling balls and strikes.

Ah, but here’s the problem.  By pushing the bill through without compromise or support from both parties, the bill lacks not only careful drafting but also bipartisan support.  That is the blowback from a party-line vote:  no one from the other side has enough ownership to help you fix it later.  It’s like that old car mechanic commercial:  you can pay me now (upfront, preventive maintenance) or you can pay me later (expensive, or in this case impossible repairs when it blows up).

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/27/brace-yourself-for-the-most-important-supreme-court-case-of-the-year/

Time to Leave Federalizing of Education Behind (Forbes.com) February 10, 2015

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Washington, D.C. has managed to take the most basic state and local responsibility—K-12 education—and federalize it at breathtaking speed over the last 12 years.  Now, with the signature piece of federalizing legislation, No Child Left Behind, up for reauthorization in Congress, it is time to put the brakes on this failed and misguided federal experiment.  In short, forget no child—what needs to be left behind is the federalizing of education.

How did this happen anyway?  Although Lyndon Johnson stuck the federal nose in the K-12 education tent in the mid-60’s, providing special federal aid for poor and disadvantaged children in his War on Poverty, the real momentum developed when President George W. Bush sought to bring his “Texas miracle” on education to Washington as the “education president.”  Bush and Senator Ted Kennedy famously got together and enacted No Child Left Behind (NCLB) in 2002, laying the groundwork for federal testing and accountability which now dominate the educational scene.

But wait, there’s more.  When, by 2012, it was clear that 80% of America’s schools would not meet NCLB’s goal of proficiency for every student by 2014, with resulting embarrassment for politicians and draconian penalties for schools, U.S. Secretary of Education Arne Duncan began issuing waivers (to over 40 states) lifting NCLB’s requirements.  If schools cannot reach the federal bar, well then the obvious solution was to lower or eliminate the bar.  But Duncan did not just waive the requirements for states, rather he did so on the condition that states agree to new conditions he sought to impose that would further change the direction of K-12 education, including strong moves toward a national curriculum (Common Core) and teacher evaluation and accountability.  These were debates properly taking shape in the states, but suddenly the Department of Education took sides and imposed a federal solution.

As South Carolina law professor Derek W. Black points out in a forthcoming issue of Vanderbilt Law Review, however, the Secretary’s conditional waivers were constitutionally problematic in two ways.  First, imposing new educational policy requirements on states through conditional waivers was a step that, under the balance of powers between Congress and an executive agency, only Congress could approve.  And second, this became a form of federal coercion on the states, essentially bribing the states with federal money to follow federal policy.  Over 40 states succumbed.  As Professor Black concludes:  “With no more power than the authority to waive noncompliance with NCLB, Secretary Arne Duncan achieved a goal that educational equality advocates had long sought, but never secured:  the federalization of aspects of public education.”

As Congress debates the reauthorization of No Child Left Behind, the real conversation should be about rolling back the federal role in K-12 education.  Over half a trillion dollars in federal money has been spent on this experiment, with very little to show for it, according to the independent Center on Educational Policy and others who have studied the results.  The federal Department of Education has become, in effect, what Senator Lamar Alexander has called “a national school board” micromanaging educational policy and outcomes.  Finally states have awakened to what they have given up and there is a backlash against the Common Core, which is spreading to the NCLB reauthorization debate.

It’s time to admit a federal failure here.  Unrealistic goals were set and federal officials have done unconstitutional hand-stands to mitigate the damage.  Hundreds of billions of dollars have been spent.  Teachers and students spend countless hours teaching to the new federal tests.  Plenty of children have been left behind. Enough already.

Let’s return educational policy and authority close to home, to school districts and ultimately the states.  Let’s not reauthorize No Child Left Behind and instead begin the painful and difficult shifting of both money and authority home to districts and states.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2015/02/10/time-to-leave-federalizing-of-education-behind/