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What a National Emergency Actually Means (National radio commentary, Salem/Townhall) March 19, 2019

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Few Americans realize that they currently live under some 30 states of national emergency, the oldest declared by President Jimmy Carter during the Iran hostage crisis 40 years ago. Actual emergencies come and go but emergency declarations live on.

The primary effect of a national emergency is to shift power from Congress to the president, as President Trump wanted to build his wall. Along with executive orders and domestic policy wars on poverty, crime, drugs and terror, presidents since Lyndon Johnson have been moving power from one end of Pennsylvania Avenue to the other.

But politically, it’s a two-edged sword. When presidents seek to do things unilaterally, these actions are easily canceled and replaced by the next president. Perhaps you recall how quickly President Trump undid President Obama’s executive orders.

One day Congress will wake up and notice its primary powers are lost.



The Real March Madness: Progressives Want to Pack the Supreme Court (Washington Examiner) March 15, 2019

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While the country gears up for college basketball’s March Madness, progressives already have their own season of silliness in full swing. The latest is a proposal to let the president (only when Democrats retake the White House, of course) add and fill additional seats on the Supreme Court. Former Attorney General Eric Holder likes the idea (let’s add two, he says), as does Democratic presidential candidate and South Bend, Ind., Mayor Pete Buttigieg and several progressive groups.

Writer Wynne McLaughlin has said, “Maybe history wouldn’t have to repeat itself if we listened once in awhile.” Few seem to remember that this idea was laughed out of Congress more than 80 years ago when former President Franklin Roosevelt advanced his own court-packing plan. Roosevelt was frustrated that the Supreme Court was declaring his signature New Deal laws unconstitutional, and his remedy was to add a new justice to the court for every sitting judge older than age 70 (which included six out nine justices at the time).

The plan was widely criticized, even by members of Roosevelt’s own party, and never enacted.

The first question to ask, as liberals resurrect this idea, is what problem they are trying to solve. If it is the politicization of the judicial appointment process, this will only make matters worse. The next president adds two, potentially tipping the political balance of the court from 5-4 conservative to 6-5 liberal. Then, of course, every time the presidency and the Congress changes hands, this topic is likely to be revisited.

The underlying problem Congress should be considering is how to limit the growing power of the Supreme Court and the judicial branch. Again, history provides a valuable insight. Alexander Hamilton argued in The Federalist (No. 78) that the judiciary, having neither the power of the sword nor the purse, would be “beyond comparison the weakest of the three departments.” But the Antifederalists disagreed because the Supreme Court could give the Constitution any interpretation it wanted. This power to be the final word on constitutionality has led the court to decide most of the important issues, especially on social questions and rights, of our day.

This, of course, is why Supreme Court appointments have become so highly politicized.James Madison’s view was that we needed a judiciary that was independent of the other branches of government, but not independent of society itself. One could argue that the Founders should have placed more checks and balances on the power of the courts, but there are several things that Congress could do now to reduce the Supreme Court’s outsized influence.

For one thing, Congress controls the appellate jurisdiction of the court and could reduce its workload, which the justices currently control themselves. Congress also has the power to decide the number of federal courts and the pay of the judges. Essentially none of these powers is taken up by Congress.

A better reform than adding new justices would be to limit their terms, again a power available to Congress. Limiting Supreme Court justices to 18-year terms would allow regular turnover on the bench, with each four-year presidential term producing two new nominations. Judges could then return to some other seat on a federal court to serve out their “lifetime” appointments. Not only would the regular turnover of term limits potentially reduce political warfare in the courts, it would also mean that early appointments of young judges and late service by older ones could be reduced.

Progressives want to give us not only a “Green New Deal,” but also a New Deal in black robes. Packing the court with new justices does not address the underlying problem of the Supreme Court’s excessive power but only exacerbates the politicization of the judicial nomination process.

As former Sen. Bob Dole, R-Kan., said when he was referred to as “Senator Gridlock,” there are a lot of bad ideas in Washington and somebody needs to stop them. Packing the court is one of those bad ideas.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

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Young People Lurching Left (National radio commentary, Salem/Townhall) February 27, 2019

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With four cities permitting 16-year old voting and several states considering it, what we have not known is how they might vote. Thanks to a study by the Pew Foundation, now we do and it’s troubling.

In short, younger people agree with their older millennial brothers and sisters, only more so, and they disagree with their boomer parents and silent generation grandparents. 70 percent of 13-21 year olds think government should be doing more, compared with an average 44% of boomers.

Only 30 percent support Trump, compared to an average 48 percent of older groups. They are the most pessimistic about the future of the country. We already know they are much more accepting of socialism.

This feels like more than the old pattern where young people start out more liberal but grow conservative over time. It sounds an alarm for more civic education and making a better case for capitalism.


“The Green New Deal and the Politics of Pessimism” (Washington Examiner) February 25, 2019

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I read House Resolution 109 introducing the Green New Deal so you won’t have to. I already knew that it was an effort to reinvent the economy, while also keeping sea levels from rising, eliminating unemployment, and guaranteeing healthcare for all. This new utopia was supposed to be available to us for a mere $90 billion.

What I was surprised to learn by reading the fine print, however, is that the Green New Deal is built on the politics of pessimism. Every bill starts with a “whereas” section, diagnosing the problem, before it gets to the “therefore” about how big government will solve it. This whereas section reads like a good old-fashioned doom and gloom sermon. America is now in the midst of “a 4-decade trend of wage stagnation,” the resolution tells us, with “a large racial wealth divide” and “systemic injustices,” while sea levels are rising, wildfire droughts are spreading and we tremble before Armageddon.

I suppose this gloom and doom is supposed to make us feel like we are in another Great Depression, like the one in the 1930s that made the case for the old New Deal. But, as my Depression-era mother often reminded me, we live in a time nothing like that one. When President Franklin Roosevelt was inaugurated in 1933, approximately one-fourth of the American workforce was seeking jobs. National income had been reduced by half. Thousands of banks had closed with 25 states declaring bank holidays.

Today, by contrast, unemployment is 4 percent, which the Congressional Budget Office maintains is about the rate of structural unemployment you will always have since you cannot match skills and jobs perfectly. Our gross national product has been at all-time highs. The last time I checked, banks are still open. America has problems, sure, but this is nothing compared to what brought on the real New Deal and it is silly to claim otherwise.

The gamble Democrats are taking is that somehow people are ready to buy this kind of pessimism about their country. But, as is often the case in politics, it does not seem that they have read the minutes of the last meeting. Does anyone remember President Jimmy Carter and his era of limits? Or his famous “malaise” speech of July 15, 1979? To read House Resolution 109, it sounds much more like Carter than Roosevelt.

What you might recall is that after only one term in office, the doom and gloom Carter rhetoric and presidency were replaced by the ultimate political optimist, President Ronald Reagan. He gave Americans a positive vision of the country and what was still left to be accomplished. His 1984 re-election ad “Morning in America” is still considered one of the most powerful political messages ever produced. Reagan saw America as a “city on a hill,” not a country in decline. Which leader’s vision do you want: a country reaching its limits, or a city on a hill leading the world? Even President Trump, who managed to tap into a populist concern about the direction of the country, nevertheless packaged it into that more optimistic baseball cap slogan: Make America Great Again.

Before House Resolution 109 finishes up at 14 pages, it gets to the “therefores,” what big government will do to fix America. Here the verbs become all important: The government will be “directing,” “ensuring,” and “guaranteeing.” This does begin to sound more like Roosevelt and the progressive preference for government planning. The bill will, as it concludes, be “providing all people of the United States with high quality health care, affordable, safe and adequate housing; economic security; and clean water, clean air, healthy and affordable food, and access to nature.”

Finally, Democrats get to language we expect from them: Big government guaranteeing the good life. But first, they ask America to embrace the doom and gloom of the present moment which, both in Congress and in the coming election, will be a difficult sell.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

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Doom and Gloom of the Green New Deal (National radio commentary, Salem/Townhall) February 22, 2019

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It’s amazing that more than 70 House members and a dozen senators have already signed onto the Green New Deal. I say amazing for two reasons:

(1) It is full of doom and gloom, and
(2) will cost a staggering $90 billion and counting.

The original New Deal of the 1930s was a response to the tragedy of a worldwide Great Depression. With a strong economy and low unemployment, it is difficult to paint that kind of bleak picture today, but the recent House Resolution introducing the Green New Deal surely tries, describing economic stagnation for four decades; racial, economic and gender divisions; and a planet doomed by global warming. It sounds a lot like Jimmy Carter’s old era of limits and we know how well that worked.

Democrats are lurching to the left in what feels like a desperate, but actually alienating, effort to win votes.


How 16-Year Olds Would Vote, If They Could (Washington Examiner) February 10, 2019

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Like popcorn in hot oil, the question of 16-year-olds voting has started popping up around the country. Four cities already allow it in local elections: three in Maryland and, ever on the bleeding edge of change, Berkeley, Calif. More important are the states considering it, since this would allow 16- and 17-year-olds to vote for president. It looked like the District of Columbia might approve 16-year-old voting, but the matter has been tabled there. Legislators are considering it in states as diverse as Kentucky, Nebraska, and Michigan, and students were in the Massachusetts capital last week looking for bill sponsors. Rep. Grace Meng, D-N.Y., has put forward a constitutional amendment to change the national voting age from 18 to 16 — though, with the high approval threshold required, you can bet against that one.

The oil causing this issue to pop seems lukewarm at best — it has arisen out of last year’s student protests over gun violence on campuses. Some believe student protests prove teenagers care about politics, or at least one issue, and this has fueled a national movement. It seems like a bad idea to me, but what we have not known until recently is how these younger voters might vote if they could.

The Pew Foundation recently completed a study on the political views of younger teens — ages 13-21 — and, in short, their beliefs are a lot like their older millennial brothers and sisters and not very much like their boomer parents and Silent Generation grandparents. For example, only 30 percent of these younger Generation Zers approve of President Trump’s job performance, compared with 43 percent for boomers and 54 percent for the silents. More striking, perhaps, 70 percent of them believe the government should do more, not less, compared with 49 percent and 39 percent of boomers and silents respectively. They believe blacks are treated unfairly and that gender designations should be handled very differently. Of all age groups, they are the most pessimistic about the direction of the country.

Before you conclude that millennials and Gen Zers will combine to be an influential new voting bloc, however, consider the likelihood that they will not actually turn out to vote. In the 2016 election, for example, only about half of eligible younger voters went to the polls compared with approximately two-thirds of older voters. Proponents of 16-year-old voting argue that, unlike the young adults who move a lot and fail to register, 16- and 17-year-olds are still at home and would be more likely to vote. Teenage stability and civic duty is a tough sell, however, especially with only 23 percent of students scoring as “proficient” or higher on the National Assessment of Educational Progress government tests.

A further problem with teenage voting is that younger voters tend to care about a handful of issues relevant to them, rather than the full ballot of representatives, judges, and the like. As Lizzy Stephan, executive director of New Era Colorado that has worked with young people, noted: “Issues have to be front and center” for teens, specifically “issues impacting their lives whether that’s student debt reform, police brutality, wages.” That’s why the jump from students protesting guns on campus, to giving them the vote, seems like such a stretch.

Some of the arguments for 16-year-olds voting are downright silly, especially the notion that more civic engagement will improve civic education. Sen. Harriette Chandler, D-Mass., said, “We signed a bill last year that provides civic education. This is just a continuation of that.” While we’re at it, let’s let more people perform surgery so they can learn to be doctors. Reminding us that no argument is too silly for an academic, professor David Runciman, head of the Department of Politics and History at Cambridge, says we should let kids vote at age six. Other arguments are very political, with Democrats far more interested in letting these more liberal Gen Zers vote than Republicans.

In the teen years, let’s keep the horse of civic education ahead of the cart of civic engagement and voting. There will be plenty of time and opportunity for that later.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

The Limits of a Disruptive Presidency Exposed (Washington Examiner) January 28, 2019

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As we mark the halfway point of President Trump’s term, we might ask ourselves how a disrupter presidency has been working for the country — or for him. That term seems to be the one that best characterizes his presidency: First disrupting the Republican Party and presidential campaigns, then presidential style and communication, government policy, foreign alliances, and then the partial closure of the federal government itself.

Disruption is primarily a Silicon Valley term, describing how an innovator or entrepreneur starts a new business that disrupts and changes an entire industry. The originator of the term, professor Clayton Christensen of Harvard Business School, called it a process by which a company offers cheaper products to new customers, forcing the existing providers to respond and a whole line of business to change. Uber is Exhibit A, offering its cheaper rides in private cars and disrupting the entire taxi and transportation industries. Amazon is another example, replacing bookstores and shopping malls with a different kind of retail shopping.

There is a case that the federal government greatly needs disrupting. President Ronald Reagan spoke of government as the problem and sought to push power and money back to the states and to individuals, but the federal juggernaut largely rolled on. President Bill Clinton and Vice President Al Gore tried reinventing government, but little changed. Many voters found Trump’s promise to “drain the swamp” in Washington as a way to undertake fundamental change that was long overdue.

But leading the federal government as disrupter-in-chief turns out to be both difficult and limited in its long-term effect. For starters, there is really no way to carry out a Silicon Valley-style disruption by creating an alternative to how the federal government operates. There is no Uber or Amazon that we can develop in a skunkworks and spring on our nation’s capital. Consequently, Trump has been left to disrupt as more of a wrecking ball than as an innovator.

Trump mostly disrupts by saying “no” — no to the Paris Climate Accords, to NAFTA, to former President Barack Obama’s environmental regulations, to the continuing operation of the federal government. He wanted to say “no” to Obamacare, too, but that required more than a presidential pronouncement or executive order and he was not able to build the legislative coalition to accomplish it. So far, his only major legislative policy initiative has been tax reform, and the jury is out on that one, with tax revenues down so far in a growing economy.

Saying “no” to the status quo in Washington is not entirely wrongheaded. As former Sen. Bob Dole, R-Kan., said when he was referred to as Senator Gridlock, “There are a lot of bad ideas in Washington, and somebody needs to stop them.” But a true disrupter wants to change the way things are done, and that requires new ideas to replace the old. We know that Trump can say “no,” but what will he say “yes” to? Moreover, if he develops more of a policy agenda for the remainder of his term, will he be able to get it through the Congress or instead be limited to what he can do on his own? With a divided government and uneasy relationships with congressional leaders in his own party, how could President Trump rally major legislative accomplishments to complete the disrupter cycle?

One would have to predict more unilateral action by President Trump in the next two years — more speeches, tweets, executive orders, and unilateral actions. But little longer-term innovation of a new Washington will follow the disruption. As we have learned from Trump’s reversal of many of Obama’s executive orders, unilateral presidential action is short-term and easily undone.

Former British Prime Minister Harold Wilson wisely said that a week is a long time in politics, so looking out two years is risky business. Still, it is difficult to see from here how a disrupter presidency based on saying “no” to business as usual could begin a real, and needed, transformation of Washington.

Two years in, we see more clearly the limits of a disrupter presidency.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

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The Green New Deal Looks Red to Me (National radio commentary, Salem/Townhall) January 25, 2019

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Perhaps you’ve heard about the Green New Deal?  It’s freshman Congresswoman Alexandria Ocasio-Cortez’s revolutionary scheme to reinvent the entire American economy.  She calls it “the Great Society, the moonshot, the civil rights movement of our generation.”

But look a little deeper and you’ll see different colors:  the blue of progressivism and mostly the red of government spending and debt.  The proposal calls for a breathtaking $90 billion in green initiatives.

Even mainstream Democrats are hesitant about this sweeping effort to reinvent the economy and eliminate income inequality.  But media darling Ocasio-Cortez will make it front and center.

The first New Deal turns out not to have solved the Great Depression as we once thought.  We hardly need a new one. Is it green? Yes. Is it utopian?  Yes.

But mostly it’s the same old liberal blue of government spending and the red of more debt.


Actual Emergencies Come and Go, But Emergency Declarations Endure (Washington Examiner) January 8, 2019

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As President Trump considers whether to declare a national state of emergency to build his border wall, few Americans realize they have lived under nearly 30 states of national emergency for most of their lives. Emergencies come and go, but emergency declarations remain. The oldest national emergency still on the books was declared by President Jimmy Carter during the Iran crisis 40 years ago. There are presently national “emergencies” covering everything from vessels in Cuba to democratic processes in Zimbabwe, from exports to cyberwarfare and narcotics trafficking.

National emergencies have long been a tool used by presidents to grow executive power and enable presidential action at the expense of congressional deliberation. In the 1970s, when Congress was concerned about executive power in the wake of Watergate and the Vietnam War, the National Emergencies Act was passed and signed by President Gerald Ford in 1976. However, the law did not limit presidential emergencies as intended. Beginning with President Bill Clinton, who invoked 17 national emergencies, government by national emergency has only grown.

Supreme Court Justice Robert Jackson foresaw the likelihood of national emergencies becoming a favored tool of the executive branch when the court reviewed President Harry Truman’s emergency declaration taking over steel factories. Jackson wrote, in the 1952 Youngstown Sheet & Tube Co. vs. Sawyer, that the “Founders knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation.” Jackson added, “We may also suspect that they suspected that emergency powers would tend to kindle emergencies.”

By now, with nearly 30 national emergencies in effect at all times, we can say that Jackson was right. Presidents find emergencies where they want to act unilaterally, either because Congress is too slow or it is opposed to what the president wants to do. Professor Kim Lane Scheppele rightly concludes that national emergencies are “like a toggle switch, and when the President flips it, he gets new powers.” Legal expert Patrick Thronson points out that “each emergency activates powers in over 160 provisions of statutory law, dozens of presidential orders, and numerous other federal regulations.”

National emergencies, then, have become a weapon in the presidential pursuit of greater power. Alongside their close cousin — declaring war on domestic policy problems such as poverty, crime, terror, energy consumption and drugs — it has skewed the system away from deliberation and toward unilateral executive action. The increase in the use of presidential executive orders is yet one more arsenal in this steady expansion of presidential power at the expense of Congress.

But national emergencies also remind us that executive power has grown not only because of the ambitions of presidents but also because Congress has passively complied. The National Emergencies Act calls upon Congress to vote every six months on whether a national emergency declaration should continue, and this they have failed to do. Congress also has spending and oversight powers it could exercise in national emergencies, but it rarely does.

It would be difficult to argue that something as complex as immigration has suddenly, overnight, become a national emergency requiring unilateral presidential action. It would be more accurate to say that politicians have been arguing for years about what approach to take to complex issues such as Dreamers, the families of immigrants, illegal immigrants performing valuable services, and so on. It is this failure to address a complex set of issues and reach agreement that is the problem, not a sudden change in conditions of the sort that would lead to an emergency declaration.

The national emergency question, then, is not merely about immigration. It is fundamentally about executive power and the role of Congress. If we are prepared to say one more time that Congress is not important and should not be engaged in major immigration policy then, sure, why not have one more national emergency?

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.

Popular Vote Power Play (National radio commentary, Salem/Townhall) January 4, 2019

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This is David Davenport of the Hoover Institution for Townhall.com.

Democrats are frustrated that they have lost the presidency in the Electoral College twice in the 21stcentury.  But instead of amending the Constitution, they are going to courts and state legislatures.

Four lawsuits claim that votes for the losing candidate in a winner-take-all electoral vote are not counted equally as required by the 14th Amendment.  Of course all the votes are counted at the state level, as the Constitution provides, so this should be a losing argument, but these days who knows?

At the same time they seek to pass the National Popular Vote Bill in state legislatures requiring electors to cast votes for the winner, not of their state vote, but of the national popular vote.

If you want to change the Constitutional requirement of electoral voting, it should be done by a proper amendment, not an end run or a legal power play.

I’m David Davenport.