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Civic Education to Save the Republic (Forbes.com) November 13, 2017

Posted by daviddavenport in Education, Op/Eds.
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If the American republic is in trouble, better civic education is the answer.  That is the conclusion reached by a number of papers and studies in recent years, including “The Republic is (Still) at Risk—and Civics is Part of the Solution” presented to the Democracy at a Crossroads National Summit a few weeks ago.

Consider a few compelling data points:

  • In the last National Assessment of Educational Progress testing, only 18% of 8th graders were “proficient” or above in history, and only 23% in government.  A mere 1-2% were “advanced.”  By the way, if you believe students learn what is tested, those exams are no longer given in the 4th and 12th grades, only in the 8th

 

  • Xavier University found that one-third of Americans could not pass the civics portion of the American citizenship test, whereas immigrants pass at a 97.5% rate.

 

  • A poll of 18-34 year-olds found that 77% could not name a senator from their home state. And don’t remind me about those who think Judge Judy is on the Supreme Court.

While civic ignorance is itself a major problem, its effect is compounded when it is applied to particular issues of the day.  For example, a You.gov poll found that those under 30 preferred socialism over capitalism 43%-30%.  Similarly, a Reason-Rupe poll of 18-24 year olds showed that 58% supported socialism.  But when Reason-Rupe asked a follow-up question whether governments or markets should manage the economy, young people said markets by a 2-1 margin.  Essentially, they do not understand what socialism is.

The same ignorance is manifest in a recent study about free speech and the First Amendment by Hoover Institution and Brookings Institution fellow John Villasenor.   Hate speech is not protected by the First Amendment, say 44% of college students, with 51% saying it’s ok to disrupt an offensive speech with which you disagree, and 19% saying it’s fine to use violence for that purpose.  Another 62% of college students mistakenly believe the First Amendment requires a controversial speaker on one side to be balanced by a speaker on the other side.  Wow.

Part of the problem is that civics and history are not required by most of our colleges and universities, so those going into the teaching profession are not well prepared themselves.  Moreover, these days the emphasis in colleges and schools is on “civic engagement”—getting involved—rather than civic education or knowledge.  One would think the latter should precede the former.  The recent and heavy emphasis on STEM (science, technology, engineering and math) has been important, but it has also crowded out courses and investments in civics and history.

A few states are awakening to the problem and beginning to address it.  Florida now requires a middle school course in civics with follow-on testing with good results.  Illinois mandates a high school civics course with teacher development to support it.  The Ashbrook Center in Ohio has gone national with its programs to retrain history and civics teachers to teach using primary documents, rather than relying exclusively on typically boring and frequently biased textbooks.  There are several points of light, but not nearly enough.

A statement attributed to Abraham Lincoln delivers a frightening prospect:  “The philosophy of the school room in one generation will be the philosophy of government in the next.”  If you are concerned about the direction of America, it is time to do something about the study of civics, which is the real long-term solution.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/11/13/civic-education-to-save-the-republic/#6f8830c359e8

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The Culture War’s Latest Battlefront: The 1st Versus The 14th Amendments (Forbes.com) October 18, 2017

Posted by daviddavenport in Op/Eds.
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The culture wars of recent decades have largely pitted a growing secularization of America against its more traditional Christian culture.  The secular left has sought to push religion out of the public square—whether from schools, or over public monuments, or in public expressions (coins, pledges, holidays).  Meanwhile the religious right has pushed back, becoming a major political and legal force.  The culture wars are a series of battles in elections, legislatures, executive offices and the courts.

But a new and important battleground is emerging as a clash between the rights to the free exercise of religion and free speech of the First Amendment to the Constitution with the growing civil rights protections afforded under the equal protection clause of the 14th Amendment.  Battles over conflicting constitutional rights are especially difficult, with few easy answers and none that will satisfy everyone.

For example, two federal departments recently announced changes in federal policy that enhance religious rights, with the Department of Health and Human Services rolling back a requirement that employers must offer birth control coverage in their health insurance plans if they violate religious principles.  Meanwhile the Justice Department eased Obama-era limitations that prevented religious organizations from faith-based preferences in employment decisions.  House Speaker Paul Ryan called the changes “a landmark day for religious liberty” but others said they were a license to discriminate.  A liberal president had pushed in one direction and a more conservative administration pushed back.

A similar issue is raised in a case to be heard before the US Supreme Court this fall involving a Colorado baker who refused to decorate a wedding cake for a gay marriage because it was against his religious beliefs.  The baker asserts his 1st Amendment rights to the free exercise of religion and speech while a state law banning discrimination by public businesses claims this amounts to civil rights discrimination.  The lower court decisions have gone against the baker, but the Trump Justice Department has filed a brief in favor of his free expression of religious principles.  Many predict a 5-4 Supreme Court decision, with Justice Kennedy left to choose between two rights he favors:  gay marriage under the 14th Amendment and free speech under the 1st.

Once the Supreme Court makes a decision such as in the Obergefell gay marriage case, the implications can play out for years in the courts.  A case in Arkansas, for example, raised the question whether listing both same-sex parents on the birth certificate was legally required (no, said the Arkansas Supreme Court, later reversed by the US Supreme Court).  The Texas Supreme Court recently ruled that same-sex spouses of government employees need not be provided benefits.

The clash between the 1st and 14th Amendments in these matters is more of a dilemma to be managed than a problem to be solved.  Both religious and free speech rights are fundamental and receive special protection under the 1st Amendment.  Gay and transgender rights are newer but nevertheless protected under the 14th Amendment now.  Given the conflict between two core rights, neither can be absolute—some balance or accommodation must be found.

There are plenty of bad ideas out there for managing this dilemma.  New York Times columnist Frank Bruni’s suggestion was that Christians must now “[bow] to the enlightenments of modernity,” effectively turning their backs on an ancient yet living faith.  On the other hand, it should not be the case that a Christian running an ordinary business may decide to exclude certain classes of customers.

Although it would be better for society as a whole if the people and their elected representatives, rather than the courts, were creating new civil rights, in the end perhaps only courts can provide the delicate balance needed to manage the dilemma between 1st Amendment and 14th Amendment rights.  It will be a mighty task—we’ll have a chance to see this fall whether the high court is up to it.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/10/18/the-culture-wars-latest-battlefront-the-1st-versus-the-14th-amendments/#362c6b26683f

The Myth That All “Free Speech” Is Constitutionally Protected (Forbes.com) October 2, 2017

Posted by daviddavenport in Op/Eds.
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We live in a litigious society, ready to make a federal case out of all kinds of slights and indignities.  We are also quick to claim broad constitutional rights, asserting that whatever we do in the name of religion or anything we say is protected by the First Amendment’s freedoms of religion or speech.  But let’s be clear about this:  a professional athlete taking a knee during the national anthem is not engaged in constitutionally protected free speech.

The First Amendment, like other provisions in the Bill of Rights (the first ten amendments to the Constitution), protects our freedoms from government intrusion.  The Founders, and especially the Antifederalists, feared that replacing the Articles of Confederation with the Constitution created a federal government that was too powerful.  As a consequence, there was a move to establish a Bill of Rights, making it plain that the federal government had no power to intrude upon a whole set of individual freedoms.

The language of the First Amendment states that “Congress shall make no law…abridging the freedom of speech.”  This was later broadened by the courts to include other branches and agencies of the federal government, and ultimately to prohibit all government from limiting speech.  Such abridgement of speech no longer requires the government entity to make a formal “law” since action may also limit speech.  In addition, government is more broadly defined, with a state university, for example, unable to limit speech in ways that a private college might.

Sports leagues and teams are businesses that may establish and enforce all kinds of rules, right down to whether you must tuck in your shirt and what kind of patches you may display on your uniform.  These are not matters of free speech—certainly not of constitutionally protected speech—but rather are business practices that leagues and teams may legally require their employees to follow.  As Commissioner Adam Silver recently reminded NBA teams, the league rules require players and coaches to stand for the national anthem and he expected the rule to be followed.  There is no constitutional right to do otherwise.  It is a matter of dispute whether the NFL has such a rule or merely a policy.

Protestors are quite simply off base when they claim that there is any kind of First Amendment free speech issue here.  Some may wish athletes were free to protest during the national anthem at sporting events, but the Constitution provides no protection for that.  If athletes wished to invoke any sort of legal backing for their action, it would be more in the nature of labor relations law than constitutional law.  Players unions and management might negotiate what freedoms athletes are allowed in this regard, just as all kinds of business practices are negotiated.

Even President Trump’s remarks on the matter do not create a First Amendment problem.  He merely stated that he wished owners would stand up and fire athletes who protested during the national anthem.  Again, this is a matter of labor relations and business practice, not a question of constitutional law or protection.  President Trump, along with everyone else, is free to say what he wishes.

Of course, there are bigger questions to be raised.  Why do we need such a close tie between patriotism and sports?  Even if the First Amendment does not protect the ability of athletes to say or act out what they want, many would like to live in the kind of society where people had such freedoms.  But of course with that comes the freedom for others to protest and object to that speech or action, creating the clashing and jarring of ideas in truly free speech.  Moreover, might owners and leagues be unwise to prevent such speech and protests, even if they are not constitutionally protected?

Kneeling and protesting during the national anthem presents a number of difficult questions, but free speech under the First Amendment is not among them.

 

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/10/02/the-myth-that-all-free-speech-is-constitutionally-protected/#3c2d2d314fcb

States Flexing Their Power, Just as our Founders Intended, SF Chronicle (Sunday Insight, with Lenny Mendonca) September 17, 2017

Posted by daviddavenport in Op/Eds.
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What is the state of our republic today? If you look at the dark clouds over Washington, D.C., where both presidential and congressional job approval ratings have been at or near record lows, you would say “not so good.” But if you look further, you may see states, cities and individuals gathering the energy to check and balance the power of Washington — just as the Founders intended.

With the Trump presidency, federalism is busting out all over. Federalism incorporates the idea that the federal government is not the only player in our constitutional republic, because state and local governments also serve important roles. The 10th Amendment of the Constitution specifically reminds us that powers not delegated to the federal government are reserved to the states or the people.

With Republicans in charge of the White House, both houses of Congress and arguably the Supreme Court, Democrats are rediscovering states’ rights and local government powers, as the out-of-power party in Washington often does. And as usual, California is leading the way in flexing state and local power, notably:

On immigration — The nearly 20 sanctuary cities and counties in California refuse to support the enforcement of Washington’s immigration laws, charting their own course at the risk of some federal funding.

On the environment — Gov. Jerry Brown is leading his own charge on climate change policies after President Trump began withdrawing from the Paris Climate Accords. In fact, California has hired an attorney, former Attorney General Eric Holder, to represent the state against federal intrusion on its policy preferences. California’s rules on auto emissions have long exceeded federal laws, and served as a model for other states seeking to clean the air.

Federalism does not stop at one state’s borders. Today, officials from many states are joining together to influence national policy in new and effective ways.

Governors clearly were major players in the recent close votes to repeal the federal Affordable Care Act. U.S. Sen. John McCain, R-Ariz., tweeted that he would remain “firmly behind @dougducey & will support whatever health care plan [Arizona Gov. Doug Ducey] believes is best for the people of Arizona.” Republican governors John Kasich of Ohio, Scott Walker of Wisconsin and Brian Sandoval of Nevada all weighed in on how the repeal of Obamacare would affect their constituents, influencing the final “no” vote.

Attorneys general from 16 states joined together to oppose Trump’s executive orders on immigration and travel bans. In addition, California has banned state-paid travel to states without sufficient LGBT protections, and seeks to use its economic power to influence the civil rights laws of red states.

Meanwhile, Republicans have not fallen asleep at the federalism wheel. While cities, which tend to have more Democratic mayors, take the initiative on increasing the minimum wage, Republicans, who control more statehouses (33), have passed state laws preempting minimum wage policy by making it a matter of state, not local, law. To date, 25 states have such preemption laws on minimum wage, with Missouri most recently moving to preempt an effort to raise the minimum wage in St. Louis.

Agree or disagree, this has led to vigorous debate about both the economic effect of raising the minimum wage, as well as controversy over which level of government should decide it. The core questions of federalism should always be asked:

• Is a matter proper for government action?

•If so, which level (federal, state or local) and which branch (legislative, executive or judicial) should act?

When in doubt, do not delegate up but keep decisions as close to the people as possible.

It is worth noting that federalism 2.0 is not your father’s federalism. For many years, federalism was tainted by its use to defend states’ rights against civil rights laws. Now everything from legalized marijuana, the minimum wage, climate change, immigration, auto emissions, and civil rights is on the federalism agenda. On one issue or another, federalism is now for everyone, from conservatives to liberals, a spectrum represented by the authors.

States, especially, can be powerful players in establishing new policies that remake whole industries. California, for example, has for all practical purposes determined vehicle emission standards nationwide. States are free to do more than federal law requires and, by requiring that cars sold in California meet higher emissions standards, car manufacturers nationwide are meeting California’s requirements rather than producing multiple versions of vehicles. School textbooks are another example of state power: once Texas required more conservative textbooks for its public schools, for example, other states ended up buying them.

All politics is local, the late House Speaker Tip O’Neill liked to say, and that may be more true today than it has been in a century or more. Once citizens and voters see the powerful impact that a city or state policy may have, and with growing frustration over politics in Washington, more people likely will become interested in exercising local and state power. Of course, it also requires a certain tolerance for diversity, and a willingness to let the other side win occasionally, because all states will not govern in quite the same ways.

However, we say vive la différence, and viva federalism.

David Davenport is a research fellow at the Hoover Institution. Lenny Mendonca is senior partner emeritus of McKinsey. To comment, submit your letter to the editor at SFChronicle.com/letters.

 

To view the essay at the San Francisco Chronicle:

http://www.sfchronicle.com/opinion/article/States-flexing-their-power-just-as-our-12199195.php

Donald Trump’s Constitution (Forbes.com) September 15, 2017

Posted by daviddavenport in Op/Eds, Politics.
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Happy Birthday to the Constitution, which celebrates the 230th anniversary of its signing on September 17.     From time to time presidents have made a speech on Constitution Day explaining the founding document’s meaning in its contemporary context.

For example, President Franklin Roosevelt delivered an address on the Constitution’s 150th birthday.  With the Supreme Court turning back some of his most important domestic legislation as unconstitutional, Roosevelt spoke about presidential power, referring to the Constitution as a people’s document, not a lawyer’s contract, and arguing that the President had the power to do what “We the people” wanted.  Former President Herbert Hoover delivered an address on Constitution Day two years later, arguing that the Constitution was more of a restraining document, protecting individual liberty from government intrusion, especially in the Bill of Rights.

In 1987, on the Constitution’s 200th birthday, President Ronald Reagan delivered an address celebrating how human freedom had been guaranteed by the Constitution and the system of government it created.  Reagan emphasized that the Constitution did not come because of some golden age, but because free men fought to overcome problems and establish democracy, a battle that continues today.

We do not expect President Donald Trump to deliver an homage to the Constitution in the coming days.  In fact, from what little he has said explicitly about the Constitution, one would surmise that he has a love/hate relationship with it.   When a Muslim father whose American military son died in a battle in Iraq spoke at the Democratic National Convention in 2016, he pulled out a Constitution and expressed doubt that Donald Trump had read it.  Trump later confirmed that he had read it and, like all presidents, he pledged in his oath “to preserve, protect and defend the Constitution of the United States.”  But since then, Trump and the Constitution have had a bit of an uneasy relationship.

Trump’s primary problem with the Constitution is not unlike Franklin Roosevelt’s:  It limits presidential power.  He said in an interview with Fox News marking the first 100 days of his presidency that the whole American system of government is “a very rough system, an archaic system,” adding that “it’s a really bad thing for the country.”  The context of Trump’s remarks came when he said, “I get things done, I’ve always been a closer.”  However, on the tough issues—immigration, debt, the tax system—he can’t “close” because he heads only one of the three branches, with both Congress and the courts having their say.  Trump believes that a dangerous and complex world requires that America have a “closer” president but, alas, the Constitution instead built walls.  It is both a restraining and an empowering document.

We all know that when President Trump becomes frustrated, he takes to Twitter to express his anger.  A federal judge who halted his immigration travel ban was referred to as “this so-called judge.”  Moreover, Trump said that a federal court striking down his travel ban “makes us look weak.”  He attacked the filibuster rules in the other branch, Congress, as “archaic.”  So obviously, Trump does not appreciate the value of the checks and balances and the separations of power that the Constitution designed and implemented.

Trump has expressed interest in the First Amendment to the Constitution and its protection of free speech.  Both candidate Trump and his presidential advisers have said that the libel laws under the First Amendment that protect “fake news” and attacks on the president should be reviewed.  Trump has said that the president’s pardoning power is unlimited, although Article I, Section 2 of the Constitution does state certain limitations.  Beyond that, he has said relatively little about the Constitution.

As always, it is tricky to sort out what Donald Trump says and what he does.  His primary action regarding the Constitution was to nominate Neil Gorsuch to the Supreme Court, someone who, Trump said, would “interpret the law as written” and would “insure the rule of law.”  Will Donald Trump light a candle for the birthday of the Constitution or would he really prefer to be free from its restraints?

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/09/15/donald-trumps-constitution/#4e0e804b7620

The Unintended Good Consequences of Donald Trump’s Presidency (Forbes.com) August 21, 2017

Posted by daviddavenport in Op/Eds, Politics.
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With much of the country wringing its hands over Donald Trump, allow me to be the bearer of some good news:  Several good things are happening to the American system of government as a result of his presidency.  Admittedly, I am turning to the somewhat perverse law of unintended consequences to find these, but systems are retooling to protect themselves from President Trump and the result could be very healthy, both now and in the long run.

First, Congress is reawakening to its leadership role in policy-making and legislating.  The founders understood Congress to be the “first” of the three branches, worrying whether there would be sufficient “energy” in the executive, while acknowledging that the judiciary, as Alexander Hamilton put it, would be “the least dangerous branch.”  All of that has been turned on its head, with the modern presidency since Franklin Roosevelt vying with the courts for first place, while Congress keeps giving up its powers and is now a distant third in federal importance.

However, that seems to be changing.  Congress is actually debating and making policy now, since President Trump does not seem interested in that.  In health care, for example, Trump has made it clear that he cares less which version of health care replacement we get than getting one, notching a win on his presidential belt.  So Congress has actively debated, now even in bipartisan discussions, key issues such as preexisting conditions, individual mandates, the extent of coverage, and the like.  The president has left a sufficient policy vacuum that Congress has had to step up.

War powers are also bestirring our Congress.  Representative Barbara Lee (D-CA) has long been a lone voice questioning the extensive war powers delegated to the president following 9/11.  Now, perhaps more nervous with President Trump as commander in chief, the House Appropriations Committee surprisingly put forward a defense spending bill that removed the extensive war powers.  Then House Speaker Paul Ryan had a surprise of his own, deleting the war powers limitation, but acknowledging that there was some way to have this debate.  In addition, another amendment was added requiring that the president provide a report to Congress on his strategy vis-à-vis ISIS.  So at least Congress is moving, again in a bipartisan fashion, to restore its constitutional power over war.

A second bright spot is a resurgence of federalism, a rebirth of action and authority at the state and local level.   California is leading the way, opposing Trump policies on immigration and the environment with its own aggressive plans.  Attorneys general in several states have joined to challenge Trump’s executive orders on immigration.  Governors have risen up to point out to Congress how repeal of the Affordable Care Act could affect Medicaid and the opioid problem in their states.  With government power traveling a one-way street to Washington, DC for decades, this reawakening of state power swings the pendulum back in a constitutional manner.

We could also say that the Trump presidency has changed the debate about checks and balances and separations of power in our constitutional republic.  For years now, progressives have argued that these mechanisms built into the Constitution by the founders are archaic and prevent progress, stopping the implementation of the democratic voice of the people.  Now people are friendlier toward these power-balancing mechanisms.  Donald Trump has expressed frustration with the Constitution, calling it “a relic” and “very bad for America” because it encumbers action.  Now many who were critical of checks and balances only months ago find them a comfort.

History swings like a pendulum, going too far in one direction but then shifting back toward an equilibrium.  Several forces—Congress, state and local governments—are gathering energy to push back against the president.  These welcome forces would not only counteract this president but also, in the larger picture, rebalance a federal government and presidency that have grown too powerful over the last century.

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/08/21/the-unintended-good-consequences-of-donald-trumps-presidency/#4ae2d87f63a4

One Small Step for a Man, One Giant Leap for the Senate: McCain The Statesman Over Trump The Closer (Forbes.com) August 1, 2017

Posted by daviddavenport in Op/Eds, Politics.
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The drama was palpable.  Senator John McCain, long known as a maverick, was flying to Washington, D.C. with his recently diagnosed cancer to cast what could be the deciding vote in the Republicans’ effort to repeal and replace Obamacare, this time with a scaled-down “skinny repeal.”  The vote would be close and it was 1:30 AM when it finally played out, when McCain surprised most with his visible thumb down.  As shock waves rolled across the Senate floor to the White House, McCain said simply, “I thought it was the right thing to do.”

Of great interest was the statement McCain’s office released shortly afterward, saying it was time to “return to the correct way of legislating and send the bill back to committee, hold hearings, receive input from both sides of the aisle, heed the recommendations of the nation’s governors and produce a bill that finally delivers health care for the American people.”  What?  You mean he did this to stand up for democratic deliberation, for bipartisanship, for proper processes?  Yes, he did, which is what statesmen occasionally must do.

In the Senate, we haven’t seen much of that lately.  Instead we see major legislation prepared in secret, sprung on colleagues at the last minute, and passed on narrow party-line votes in order to win.  Winning, taking action, satisfying our political base–this is what the U.S. Congress is about now.  Not deliberation, bipartisanship, finding the right policies for the country.  McCain took one small step for a man, but we hope one giant leap for the Senate.

Actually, this whole business of action over deliberation started with President Franklin Roosevelt’s New Deal in the 1930s.  In Roosevelt’s 1933 inaugural address, he famously declared that “the only thing we have to fear is fear itself.”  But the phrase in that speech that most accurately pointed the way he would take as president was:  “This nation asks for action and action now.”  A key member of Roosevelt’s brain trust, Columbia University professor Rexford Tugwell said:  “He did not very much care what kind of farm relief, or how the principle of cheap and universally available power was arrived at.  Banking regulations might be of any practicable sort…but he was committed to some action in all these matters.”

Roosevelt’s “action and action now” paradigm might have made more sense in the wake of the Great Depression, but it has never gone away.  Since then presidents have declared “wars” on poverty, crime, drugs and all manner of domestic policy problems.  Presidents have demanded “action and action now.”  If the Senate ever was the greatest deliberative body in the world, as some have claimed, it isn’t anymore.  It hardly deliberates at all.  Bills come to the floor from secret chambers, time for debate is limited, amendments are not allowed, and party-line up and down votes are taken.

Unfortunately Donald Trump has very much followed Roosevelt’s lead.  He obviously does not care which version of health care we end up with, he simply wants some kind of repeal and replacement so he can put a notch on his presidential legacy belt and tell his constituents he did it.  Trump says that the Constitution is a “relic” and “very bad for America?”  Why?  Because he says he’s “a closer,” obviously not a deliberator, and the American people want action, not talk.

So, finally a statesman stood up to that and said no.  In the past, an occasional “gang” of senators might do that:  a bipartisan gang of six on health care in 2009, another gang of six on the national debt in 2011, a gang of eight on immigration in 2013.  But this time there was no gang, there was just the maverick, the statesman, John McCain.  But it was enough.

The political system does not so much need a lot of fancy reforms—dealing with the filibuster or the nuclear option or whatever—it needs a few wise and courageous leaders to stand up and do the right thing.  And, at least in this round, The Statesman stood up to The Closer and America won.

 

To view the column at Forbes.com:

https://www.forbes.com/sites/daviddavenport/2017/08/01/one-small-step-for-a-man-one-giant-leap-for-the-senate-mccain-the-statesman-over-trump-the-closer/#224896a03f4c

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

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