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California’s Bully Federalism (National radio commentary, Salem/Townhall) September 2, 2017

Posted by daviddavenport in Radio Commentaries.
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California’s travel ban, forbidding the expenditure of state money to travel to states that have policies they don’t like, is what I call “bully federalism.”

You may remember federalism, the idea that state and local governments retain considerable power in our federal system. Under the 10th Amendment, states can fight back and defend their powers against Washington.

But California’s federalism is not defending against federal power, it is offensive in nature, seeking to force its policies onto other states.

California doesn’t want state officials—or even university students—to travel to states that do not agree with its policies on LGBT issues. With the 6th largest economy in the world, California has the economic power to be a bully.

Do we all have to be like California? Is California the only state that gets things right? Is there no respect for the laws of other states, as seems to be called for by the “full faith and credit” provision of the Constitution?

No one likes bullies.

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Win or Lose, The ACA Has Federalized Healthcare (National radio commentary, Salem/Townhall) August 29, 2017

Posted by daviddavenport in Radio Commentaries.
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No matter how the efforts to repeal and replace Obamacare turn out, I’m sorry to say that President Obama’s Affordable Care Act has federalized health care forever.

It has changed the conversation so that, instead of debating whether the federal government should or constitutionally may take over health care, we are instead debating how.

As political scientist James Q. Wilson pointed out, once Congress has entered a field of regulation, the legitimacy of federal action is established and is rarely debated again. Sadly, in the case of Obamacare, this was accomplished by a straight party-line vote of Democrats.

Surprisingly, in that same time frame, the federalization of education policy was also accomplished, but is now turning back to the states. There was such an outcry over Common Core and federal testing that teachers and parents changed the law in Washington.

Unfortunately that’s not likely to happen with an entitlement like healthcare, which has now—almost certainly—been federalized forever.

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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

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

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

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

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

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

http://www.townhallreview.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

To view the column at Forbes.com:

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