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Will The Mid-Term Elections Make Any Policy Difference? (Forbes.com) November 3, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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As a Californian in a state so tilted in one political direction that few bother to run ads here, I am spared what a friend from Wisconsin, a major battleground state, describes as an endless barrage of political ads and messages this year.  It will soon be over, but will it have made any difference?  Will the politics of the 2014 mid-term elections bring about any major changes in the policies that govern us?  Sadly, I tend to think it will ultimately be much ado about relatively little.

Even if Republicans make gains in the House and establish a slight majority in the Senate, the election will largely shift government gridlock, rather than end it.  Instead of Congress doing virtually nothing, as has been the case this year, Congress will begin passing bills again, only to see them land with a thud on the President’s desk.  Senate Majority Leader Mitch McConnell said over the weekend that “a new Republican majority…would mean we’d be able to bring the current legislative gridlock to a merciful end.”  But that assumes that Congress will pass bills that the President would want to sign; otherwise, they die in the Oval Office.

So the real question is this:  what are the chances that a Republican Congress and a Democrat President could find significant areas of agreement in Obama’s final two years?  It is certainly possible that President Obama will take a page from Fleetwood Mac and “go [his] own way.”  He consistently says he wants to be a consequential president, which suggests that playing small ball with Republicans is not a likely scenario.  And he’s already signaled plans to tackle one of the big policy issues, immigration, by executive order, hardly a collaborative approach.  So one very realistic prospect is that Obama will not find collaborating with Republicans on policy changes to suit his political or historic agenda and we will face more executive orders and gridlock.

But what might a Republican Congress and a Democratic President do together if they were so inclined?  I suppose they could tackle immigration, for example.  The President says he wants a comprehensive plan and Republicans want to do piecemeal reform, but let’s assume they could get past that.  The difficulty with immigration reform is that everyone wants to do what they find important first.  Republicans want to strengthen border security first.  Business leaders want to improve legal immigration for workers first.  Liberals want to deal with children and others who are already here first.  That’s where immigration reform is stuck—no one trusts the other parties to get to their issue unless theirs is first in line.  I think that will be harder to resolve than one might think.

Healthcare, the other big domestic policy priority, seems even less likely to produce agreement between Congress and the President. The Republican House has voted 54 times to repeal or tweak Obamacare, but obviously the President won’t be signing anything of that sort.  Even Mitch McConnell acknowledged to Fox News’ Neil Cavuto that major changes to Obamacare “would take a Presidential signature.  No one thinks we’re going to get that.”

How about foreign policy?  Unfortunately for a new Republican majority in Congress, this is an area where the President leads, not the Congress.  Congress could try to end the sequester cuts in defense spending, as one measure, but the White House has taken the view that non-defense cuts should also be addressed, so it’s hard to see the President going along with Republicans here either.

If I had to bet, I would see President Obama spending his final two years in the following way, no matter who wins on Tuesday:  appointing lots of federal judges, raising a lot of money for the 2016 elections, making political appointments and providing pardons, delivering speeches, and issuing executive orders.  If true, that means we will see little change in policy from all the politics of 2014, and merely a shift in gridlock from the halls of Congress to the President’s desk.  All Republicans probably gain is a better platform for their ideas.  In the end, the politics of 2014 may be little more than foreshadowing and repositioning for the politics of 2016.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/11/03/will-the-mid-term-elections-make-any-policy-difference/


Cash for Clunkers Clunked (National Radio Commentary /Salem-Townhall.com) September 15, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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You may recall the famous Cash for Clunkers program in 2009 that attempted to stimulate the economy by giving government rebates to people who bought used cars.  The program cost taxpayers $3 billion and was widely criticized for merely accelerating decisions to buy cars, rather than producing additional sales.

Turns out it’s even worse than we thought:  A recent study by economists at Texas A&M concluded that the program actually cost dealers $3 billion in lost revenue because the law’s fuel-efficiency requirement caused people to buy cheaper cars than they would have. 

The lesson Washington should have learned by now is that government interventions into the market economy don’t work.  And, in this case, they violated the first rule of medicine:  do no harm.  Government must resist the temptation to simply “do something” and limit itself to playing government’s most important role in the economy:  provide solid, dependable rates and policies that people can rely on. 

Link to Townhall.com audio:  http://ht.salemweb.net/townhall/audio/mp3/131d0c23-cde5-4d9e-9118-23c6e75b8c67.mp3


Obama’s Executive Power Pen Is Already Worn Out (Forbes.com) February 25, 2014

Posted by daviddavenport in Op/Eds.
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Much has rightly been made of President Obama’s promise to bypass Congress and act unilaterally to get things done. “I’ve got a pen and I’ve got a phone,” he said, threatening to sign more executive orders and blast more messages from his bully pulpit.
Since then, defenders have argued that Obama has signed relatively few executive orders compared with other modern presidents. But all executive orders are not equal and simply adding them up misses the point. Obama has developed a bold and consistent pattern of unilateral action to set his agenda, advance it and change it, well beyond any reasonable understanding of the Constitution’s separation of powers doctrine.

First, one should note that presidential overreach is not limited to executive orders. For example, President Obama has appointed more czars—officials with power similar to cabinet officers but not requiring Senate confirmation—than any president, somewhere around 38 depending on how you count them. He’s empowered car czars, green job czars, Middle East policy czars and my personal favorite, the Asian carp czar. All these are unelected and unconfirmed senior White House officials with considerable power. And don’t forget those so-called recess appointments that sought to avoid Senate confirmation. The Supreme Court hasn’t, since they are likely to strike them down for having been done when there was obviously no recess.

He has defined his role as commander in chief in a breathtakingly powerful and detailed manner. For example, he committed the United States to war with Libya without Congressional authorization, an action that both allies and critics agree exceeded proper presidential power. He has claimed authority to target individual enemies for death by drone, including some American citizens located overseas. I’m sorry but the last time I checked, the death penalty for U.S. citizens was reserved to the judicial branch.

Similarly, the administration has been active in using waivers and regulations to reshape the law to its liking. Most obvious, though little discussed, the Department of Education has issued so many waivers to states that the No Child Left Behind Act is barely recognizable. The Environmental Protection Agency has launched an attack on the coal industry, unilaterally declaring their carbon emissions pollutants and potentially shutting down hundreds of their plants as part of its campaign against climate change.

But even in the realm of executive orders, Obama has managed to make a significant mark. Executive orders, as their name implies, are for the executive branch to carry out, literally to “execute,” a bill passed into law. They follow on and implement laws passed by Congress. But Obama has changed all of that, instead using executive orders on offense, to trigger a set of policy changes he wants but fears Congress won’t enact. He is not “executing” laws, he is making them.

For example, frustrated by the inability of Congress to pass immigration reform, Obama kicked off his own set of reforms by executive order, halting the legal deportation of thousands of immigrants in the U.S. illegally. Similarly, Obama launched his campaign to increase the minimum wage by unilaterally ordering an increase for all federal contractors. Congress won’t pass gun control? No problem, as Obama signed 23 executive orders on gun control, a couple of recent ones setting up possible confiscation of guns using the Affordable Care Act. That takes some doing.

And speaking of the Affordable Care Act, Obama has found yet another use for executive orders: changing and amending his own laws. For awhile it seemed like every week brought yet another unilateral presidential amendment to Obamacare. Don’t like the mandate on small companies? Fine, we’ll just postpone it. How about the requirements on big companies? Fine, we can ease those too. In all, the president has issued 22 modifications or delays of his signature legislation.

The president seems to think it’s something of a joke, telling visiting French president Francois Hollande recently, “that’s the good thing about being president, I can do anything I want.” But that giant tearing sound you hear is the separation of powers established by the Constitution.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/02/24/obamas-executive-power-pen-is-already-worn-out/

Federal Judges in Utah and Oklahoma Out of Bounds on Same Sex Marriage (Forbes.com) January 25, 2014

Posted by daviddavenport in Op/Eds.
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When the Supreme Court talks, other courts are supposed to listen. But when the Court gives mixed or muddled messages, federal judges are left with room to take the law where they wish. A good example of this is a recent pair of decisions by federal judges in Oklahoma and Utah declaring state bans on same sex marriage to be unconstitutional, outcomes that seem to be at odds with where the Supreme Court left things following its two decisions about same sex marriage announced in June.

In Hollingsworth v. Perry, the Supreme Court heard arguments last year that California’s Proposition 8, declaring that marriage was only between a man and a woman, was unconstitutional. Powerhouse litigators Ted Olson and David Boies brought the case to make that very statement, and federal judge Vaughan Walker of San Francisco conducted an elaborate trial to make a record on which such a decision could be based. But the U.S. Supreme Court declined to make a broad constitutional ruling, instead throwing out the appeal on the narrow ground that no party before the court had standing to defend the law. While the practical effect was to leave Judge Walker’s decision against Proposition 8 in effect, the larger constitutional questions were not addressed by the Court, evidently awaiting another case on a future day.

At the same time last June, the Supreme Court issued its opinion in United States v. Windsor, declaring portions of the federal Defense of Marriage Act (DOMA) unconstitutional because they deprived same sex couples of a federal estate tax exemption available to opposite sex couples. The Constitutional basis for the decision was muddled—part due process, part federalism, part equal protection, but mainly unclear—and the Court specifically said it was not addressing the broader question of the legality of same sex marriage, leaving that to the states. Justice Scalia, in his dissent, predicted that it wouldn’t be long before the states showed up in the Supreme Court pressing that very question.

So it seemed clear that the action on same sex marriage moved to the states and their political processes, either through state legislatures or ballot propositions. Perhaps a lesson had been learned from Roe v. Wade on abortion in the 1970s, where the Court made a rather abrupt pronouncement about abortion rights that has left the matter contentious ever since. Forty years later, the pro-life movement is going strong, reminding us that a court ruling does not make strongly held moral and religious views simply go away. Looking back, even progressives have acknowledged the abortion matter would have been less contentious had the matter been resolved deliberatively through the political processes of each state rather than abruptly for everyone by a court decision.

This seemed to be where the Supreme Court was leaving same sex marriage, to be resolved by the political branches in each state, not by federal courts. Chief Justice Roberts opened his majority opinion in Hollingsworth v. Perry by saying, “The public is currently engaged in an active political debate over whether same-sex couples should be allowed to marry.” Roberts continued, in his dissent in the Windsor case, by saying “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their historic and essential authority to decide the marital relation, may continue to utilize the traditional definition of marriage.” Justice Alito in his dissent in Windsor, joined by Justice Thomas, said it was not in the purview of courts to decide between two views of marriage, but that state legislatures clearly must do so. And decide they have: 8 state legislatures have legalized same sex marriage and 3 additional states have done so by popular vote.

So along come two federal judges, one in conservative Utah and the other in conservative Oklahoma, and they declare state state bans on same sex marriage to be unconstitutional. My point is not that the judges did not have the power to do this, or that they did so without careful deliberation. Federal judges famously do more or less whatever they want, so long as it does not directly violate Supreme Court precedents. My point is that the way the Supreme Court left things following its two muddled and unsatisfactory legal opinions in June was to give state political processes—legislatures and ballots—time to work this through. And these two federal judges are out of sync with that allocation of power (federalism) and that more deliberative approach to decision-making. The judge in Utah would not even stay his ruling pending appeal, leaving the legal status of a thousand marriages up in the air.

Too bad that two federal judges can overrule state constitutions passed by their people when the Supreme Court just said, in effect, there is no federal constitutional policy yet about same sex marriage. But then social engineering has long been a temptation that some federal judges cannot resist.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2014/01/24/federal-judges-in-utah-and-oklahoma-out-of-bounds-on-same-sex-marriage/

Wrong Side of the Law (Townhall.com) October 23, 2013

Posted by daviddavenport in Radio Commentaries.
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A Pennsylvania judge has told a county clerk that he may no longer issue same sex marriage licenses. 

Stunningly, the clerk had decided on his own that Pennsylvania’s law banning same-sex marriage was unconstitutional and had issued 174 licenses to same-sex couples. 

Finally a judge said “enough,” adding that a county clerk has no authority to decide such constitutional matters.  Only if the legislature changes the law or a court finds it unconstitutional could such licenses be issued.

It is unclear what happens to the more than 100 same sex marriages already performed, though in similar cases in California and Oregon, such marriages became invalid.  New Mexico now faces its own version of this.

The clerk said he felt he was on the right side of history.  But it turns out he was on the wrong side of the law.

To listen to the audio please click on the link:  http://townhall.com/talkradio/dailycommentary/689071

Government should not control income equality, with Gordon Lloyd (San Francisco Chronicle) October 13, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Americans are being treated to a UC Berkeley teach-a-thon on income inequality by Professors Robert Reich and Emmanuel Saez. Saez just updated his studies on income inequality with the release of 2012 figures, and former Secretary of Labor Robert Reich, now on the UC Berkeley faculty, has turned up the volume with his new documentary “Inequality for All.”

The emerging inequality narrative is relatively clear: the rich are getting richer at a faster rate than the poor, creating a greater spread of income between the top and bottom of the economic ladder.

But there are several hard questions about this inequality narrative that need to be asked before we take the sort of action President Obama has urged: revised tax rates to further redistribute income and a higher minimum wage.

First, is it really the role of government to equalize Americans’ personal income? Income mobility (the ability to move up or down the scale over time) is more relevant and remains quite strong. Further, President Obama and most economists agree that forces beyond the government such as globalization and technology are root causes, raising the related question of whether government action could make a big difference. Isabel Sawhill at the Brookings Institution adds that changes in American households and in labor markets are major factors, again matters beyond politics and policy.

Second, where and why has income inequality grown? The primary growth at the top is not in wages, salaries and benefits, but in capital gains and the stock market. It is fundamentally because the United States is the country where growth companies – Apple, Microsoft, Facebook, Walmart – are nurtured and grow. Do we really want to discourage those companies from developing and creating jobs in the United States? Heavy taxation and regulation will simply drive them to operate elsewhere, with a huge net loss to the country.

Finally, we have to look more deeply at the data itself. Much of the data, for example, excludes taxes and government transfers, the very tools that have been used to equalize income, and which the equalizers wish to expand. Nearly always ignored is the fact that every income class has enjoyed growth, as has the economy as a whole. Further, as Stanford University and Hoover Institution economist John Taylor points out, the slow economic recovery, caused in  large part by flawed government policy, has been a significant contributor to lower incomes at all levels.

Christian Gheorghe, who immigrated from Romania and has started his own business, said “freedom” was one of the few English words he knew when he arrived and was the answer he gave to the immigration officer on why he had come to America. He added, “freedom has shaped everything in my life since I was allowed to immigrate to America.”

More than 40 percent of Fortune 500 companies and 33 percent of venture-backed companies that went public from 2006-12 had immigrant founders at the helm. We think immigrants, who come to the U.S. for freedom and opportunity and are growing the economic pie, have it right, and intellectuals whose primary focus is on redistribution and regulation to manage the existing pie have it wrong.

Please click on the link to view the article in the San Francisco Chronicle:  http://www.sfgate.com/opinion/openforum/article/Government-should-not-control-income-equality-4892873.php

California Dreaming (Townhall.com) October 10, 2013

Posted by daviddavenport in Radio Commentaries.
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An old quotation reminds us, “No man’s life, liberty or property are safe while the legislature is in session.”  This is especially true in California this year. 

In the session just concluded, the legislature passed bills allowing illegal immigrants to practice law and serve on juries.  I’m not sure how a citizen has a constitutionally-protected jury of peers with people who aren’t even citizens. 

The California legislature also banned counseling children with gay tendencies toward a straight life, and allowing transgender students to use any bathroom they want.  The former again defies the Constitution—free speech in the First Amendment—and the latter defies any rule of common sense parenting.

If you want to see Constitutional and legal nonsense at work, follow the creative but dangerous work of the California legislature.

To listen to the audio please click on the link:  http://townhall.com/talkradio/dailycommentary/688646

A Nation of Laws, Not Men (Defining Ideas) September 3, 2013

Posted by daviddavenport in Op/Eds, Policy Articles & Papers.
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On September 4, a court in Pennsylvania will consider whether a county registrar of wills may issue marriage licenses to same sex couples in contravention of state law because he has decided that law is unconstitutional. This official has now issued over 100 such licenses and other public officials (mayors) have used them to perform same sex wedding ceremonies. The legal challenge by the Pennsylvania Department of Health, which has overall responsibility for marriage laws and licensing, is loaded with constitutional, legal, social, and marital consequences, all of which deserve careful consideration.

At the same time, the Governor and Attorney General of Pennsylvania have exchanged political blows over whether that state law banning same sex marriage should be defended in court and, if so, who has the responsibility to do that. The attorney general says Pennsylvania’s 1996 law stating that marriage is between a man and a woman is “wholly unconstitutional” and she will not defend it, even though the recent Supreme Court decision in Windsor v. United States said states were free to make their own decisions about gay marriage.

This follows on the heels of President Obama’s and Attorney General Holder’s decision to not to defend the federal Defense of Marriage Act (DOMA) in the years prior to the recent determination by the U.S. Supreme Court that the law is unconstitutional. And similar questions arose in the recent California Proposition 8 case when that state’s governor and attorney general declined to defend the law because they felt it was unconstitutional, with the remarkable result, handed down by the Supreme Court, that no one had standing to defend that part of the California Constitution in court.

It looks like a virus is spreading among public officials creating delusions that any one of them may unilaterally decide a law is unconstitutional and decline to follow the law or defend it in court. Setting aside for a moment the same sex marriage context of these actions—we could be talking about environmental laws or gun control or taxes—is it really the case that a single federal, state, or county official is free to make a judgment about the constitutionality of a law and decline to execute, enforce, or defend it? Are we no longer what founder (and second president) John Adams called “a nation of laws and not of men”?

To read the rest of David’s article, please click the link below:


A Dangerous, Chaos-Inducing Virus Is Infecting The Political Class (Forbes.com) August 15, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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A dangerous virus is spreading through public officials, one that will both weaken the legal system and promote chaos and confusion. Increasingly public officials, from the president and attorney general of the United States down to mayors and county administrators, are taking the position that they will not enforce or defend laws that they personally believe are unconstitutional.
Take same sex marriage in Pennsylvania as a case study. In 1996, the state adopted a law declaring that marriage is between a man and a woman, and that bans same sex marriage. The U.S. Supreme Court’s decision this summer finding the federal Defense of Marriage Act (DOMA) unconstitutional nevertheless affirmed the right of states to make their own decisions about same sex marriage. So presumably, nothing changed in Pennsylvania, at least not until there was some further legislative initiative or, as Justice Antonin Scalia suggested in his dissent in the DOMA case, until the Supreme Court dropped another state law shoe in the future.
But not so fast. For here comes Pennsylvania Attorney General Kathleen Kane (D) saying she believes Pennsylvania’s law banning gay marriage is “wholly unconstitutional” and she refuses to defend it in court. In response, Governor (and former state Attorney General) Tom Corbett (R) says he will step forward and defend the law on the premise that “all laws are presumed to be constitutional and will be defended.” If a tempest in the executive branch teapot isn’t enough, a county register of wills in the state says he has read the Supreme Court’s DOMA opinion—apparently skipping over the part where the Court said states were free to make their own decisions– and he has concluded that a state ban on same sex marriage is unconstitutional, so he has begun issuing licenses to gay couples, now in excess of 100 of them. And Pennsylvania mayors are stepping forward to perform them. No one knows what legal status, if any, these marriages performed in violation of state law will have.
What’s wrong with this picture? Legally, a lot. First, state officials take an oath to support and defend the constitution and the laws of their jurisdiction. Law enforcement officials, including attorneys general, are charged with enforcing the law. Every lawyer learns in law school that an important part of his or her duty is to defend unpopular clients. A single lawyer’s job is not to do justice, but to do his or her part to be sure the system—including lawyers for both sides, judges and juries–delivers a just result. It’s the same with unpopular laws. It’s not the job of a single official to decide something is unconstitutional, but an entire legal system.
There are also obvious policy problems as well. Most immediately, no one really knows whether same sex marriages performed in Pennsylvania will turn out to be legal or not, leaving all kinds of loose ends for families, benefits, estates and so on. At a deeper level, what kind of a precedent does it set when a single county official in a state can choose to ignore a law he personally finds unconstitutional? Even deeper still, when the governor and attorney general of California refused to defend its constitutional provision barring same sex marriage, and the U.S. Supreme Court found no one else had legal standing to do so, a ballot initiative supported by nearly 7 million Californians was effectively killed by a single federal judge. What kind of future might there be for ballot propositions when this sort of end-run can negate them?
Laws cannot be enacted by a single individual, nor should they be declared unconstitutional by a single individual. Until the legal system has worked its way through to decide the constitutionality of a law, the responsibility of individual officials within the system is to do their job, play their proper role, and follow the law.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/08/15/a-dangerous-chaos-inducing-virus-is-infecting-the-political-class/

Government Officials Must Defend the Law (Townhall.com) August 13, 2013

Posted by daviddavenport in Radio Commentaries.
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A contagion is spreading through senior government officials across the land. Although they take an oath to defend the constitution and the law, many officials are concluding that they will not defend laws they disagree with or feel are unconstitutional.

It starts at the top: When President Obama and Attorney General Holder refuse to defend laws such as the Defense of Marriage Act. The disease quickly spread to California, where the governor and attorney general refused to defend Proposition 8. When the Supreme Court decided no one had standing to defend the law, a ruling of unconstitutionality by a single federal judge stood unchallenged.

Now a county official in Pennsylvania says he doesn’t agree with a state law banning same-sex marriage and he’s started issuing licenses.

Officials have a sworn duty to uphold a law until the legal process concludes otherwise.

Please click on the link to listen to the audio: http://townhall.com/talkradio/dailycommentary/676954