Saturday, August 19, 2017

The Lessons of Charlottesville: Must we be tolerant of the intolerant?

Does the First Amendment require us to be tolerant of the intolerant?  The simple answer in the United States is yes, but only up to the point of violence, and only up to the point of where it involves government efforts to suppress speech.  Beyond that, tolerance is a social issue, and that is perhaps where the real danger lies in terms of threats to freedom and free speech.
Charlottesville was ugly in so many ways.  But the central question of the week is need we tolerate the intolerant?  There is the legal answer, and the social answer.  Legally, deciding the limits of free speech has been perhaps one of the most profound and vexing questions in American law.  Do we have a right to advocate hate?  The overthrowing of the government?  Should we be allowed to burn crosses, flags, or draft cards?  Is sexually-charged language or images discrimination or harassment? Can we, as Supreme Court Justice Holmes Jr., once mused, falsely cry fire in a crowded theater, and  is it permissible for political candidates to lie?  How far can our words go before they cross a line?  When has the line been crossed from “names will never hurt me” to where they act as “sticks and stones?”
The Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), a case involving hooded and armed KKK members standing around a burning cross advocating potentially violent action, defined the line.  Citing a litany of precedents it held that:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Speech is speech, and it is protected until such time as it advocates imminent lawlessness that is likely or imminently to occur.  In Brandenburg, the Court ruled the KKK did not cross the line and their advocacy was protected speech.  Many might be surprised by this decision, but the Court drew a tough line in the sand–free speech is sacred and the government ought not to censor or prosecute it, no matter how ugly and hateful, unless it crosses the line into imminent violence.  That line might have been crossed in Chrlottesville with the violence.
The price to pay for freedom is that others have a right to say hurtful things or things we do not want to hear, and the government should not be the arbiter of what it truth.  As Justice Robert Jackson well-stated it in West Virginia v. Barnette, 319 U.S. 624 (1943): “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”
The First Amendment prevents the government from suppressing free speech.  But what about society?  The First Amendment does not apply to private actors or public opinion.  Private employers, internet hosts, and private individuals do not have to follow the First Amendment.  I am free to shun ideas I dislike and to disapprove of them and those who hold them.  Public opinion is the ruling sentiment in the US, for good and bad.  At its best public opinion and majority rule can do great things such as advocate for civil rights and equality, but at it worst public opinion is a destructive, censoring tool.  Fifty percent plus one of the population at one time sustained slavery, denied women the right to vote, and prevented same-sex couples from marrying.
James Madison, the principle architect of the Constitution and the Bill of Rights, as described in Federalist Paper number 10,  feared the  power of the majority faction to act “adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Alexis de Tocqueville in his famous Democracy in America called this as the problem of the tyranny of the majority.” It is the problem of how do we balance majority rights with minority rule. The Constitution, and the Bill of Rights, are complex machinery that help to manage intolerance, abuse of power, and freedom by restraining the government.  At the end of the day, people can believe what they want, including hurtful and discriminatory things, but they Constitution and Bill of Rights stand as guardians against that.  Again to quote Justice Jackson in Barnette:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.  One's right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Individuals can believe what they want, but they have no right to have their personal prejudicial beliefs translated into public policy.  
Yet James Bryce’s American Commonwealth saw something even more fearful than a tyranny of the majority–the fatalism of the multitude.

The tendency to acquiescence and submission, this sense of insignificance of individual effort, the belief that the affairs of men are swayed by large forces whose movement may be studied but cannot be turned, I have ventured to call the Fatalism of the Multitude...But the fatalistic attitude I have been seeking to describe does not imply any exercise of the power of the majority at all..In the fatalism of the multitude there is neither legal not moral compulsion; there is merely a loss of resisting power.

Elisabeth Noelle-Neumann’s The Spiral of Silence goes even further, describing the power of public opinion to encourage people to self-silence themselves.  The problem Madison, deTocqueville, Bryce, and Noelle-Neumann all noted was the suffocating power of public opinion and intolerance to silence dissenters, the minority, or those who have contrarian opinions.
We may and we should, in light of Charlottesville, cheer for those who want to denounce the KKK, Nazis, and white supremacists, but we should not be given the power to deny them the right to speak.  These latter groups have an right to believe what they want, and the rest of us should do our best to educate and convince them of the error of their ways and urge them to change their mind.  However, simply suppressing their speech does not eliminate hate, fear, and prejudice and the tools we use today to censor our enemies can another day be used against us.

Sunday, August 13, 2017

Are You a Crackpot? Take the Quiz!

U.S. President John Adams once declared: “Facts are stubborn things; and whatever may be our
wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”  Similarly Thomas Henry Huxley, biologist and defender of Charles Darwin, stated that: “The great tragedy of Science — the slaying of a beautiful hypothesis by an ugly fact.”
At one time we declared as crackpots people who denied facts and reality.  But if only Adams and Huxley lived now in a world of alternative facts and reality it might be they who are declared crackpots for believing in truth and facts.  Yet for those of us who still naively and perhaps foolishly believe that facts exist, science produces knowledge, and that there are ways to ascertain truth, contemporary politics is challenging.  While crackpot claims and conspiracy theories are as old as human nature, crackpots seem everywhere, lurking behind every posting on the social media, stories in the news, and even press statements from the White House. Crackpotism does not discriminate, it seems to know no political, racial, ethnic, religious, or other bounds.
All of us want to think we are in the right and that others are wrong, but is it possible that you too are a crackpot?  Ths crackpot quiz or index measures the degree to which you are a rigorous tough-minded truth seeker all the way up to being a certified five-star crackpot, ready to run for political office, host a social media site, or leader a group of similarly-minded folks.  The quiz includes classic as well a contemporary questions.
Good luck!

1. The Earth is flat.  True or false.

2. Fluoridation of water was and is bad for you.  True or false.

3. God created the Earth on Sunday, October 23, 4004 BC at 9 a.m. True or false.

4. Vaccinations have been proven to cause autism. True or false.

5. Humans did not evolve from another species because evolution as a theory is wrong.  True or false.

6. Global warming is a hoax cooked up by those who hate coal and the fossil-fuel industry.  True or false.

7. You stocked up your basement with food and provisions in anticipation of Y2K. True or false.

8. Lee Harvey Oswald acted alone in Dallas. True or false.

9. Elvis is alive. True or false.

10. You think that any politician or political party that you disagree with is the Anti-Christ.  True or false.

11. You believe in the Anti-Christ.  True or false.

12. You are the Anti-Christ.  True or false.

13. You believe everything as true what you or your friends read or post on the social media.  True or false.

14. You repost things on the social media before either verifying the source and accuracy of the story, or without reading it first.    True or false.

15. Former President Barack Obama is not a U.S. citizen and his Hawaiian birth certificate is fabricated.  True or false.

16. The U.S. government is concealing information about a UFO crash landing of aliens at Area 51 in New Mexico.  True or false.

17. Neil Armstrong walked on the Moon. True or false.

18. The Holocaust occurred.  True or false.

19. Crrypto-Zoology is a legitimate science. True or false.

20. All terrorists are Muslims. True or false.

21. All Muslims are terrorists.  True or false.

22. The only good immigrants are your ancestors.  True or false.

23. Donald Trump won the presidency with one of the largest Electoral College victories in US history.  True or false.

24. Al Gore invented the Internet.

25. Life begins at:
a) Conception
b) Birth
c) When you get your driver’s license.
d) None of the above
e) All of the above

Answers (If you believe in facts and truth, if not go on to the score section).
1 F. 2 F. 3 F.4 F. 5 F. 6 F. 7 F. 8. T.  9. F. 10.  F. 11. F.
12.  F.  13. F. 14. F.  15. F. 16. F. 17. T.  18 T. 19 F. 20 F. 21. F
22. F.  23. F. 24. F. 25. E.

If you even took the test raises questions about whether you have insecurities about being a crackpot, or conversely, you actually believe in truth and facts.  Nonetheless:

If you got 23-25 correct you are a tough-minded truth seeker, not fit for politics or working as a pundit in the national media.

If you got 20-22 correct you generally believe in facts and truth but you could be convinced to buy a deed to the Brooklyn Bridge.

If you got 17-19 correct truth and facts are challenges for you and you could either become a university professor espousing epistemological relativism or addicted to Sunday morning talk shows or tele-evangelicals.

If you got 14-16 correct truth and facts are matters of opinion and you believe that black helicopters are ready to land at any minute.

If you got 13 or less correct truth and facts are only what you believe and congratulations, you are  certified five-star crackpot.

Friday, August 11, 2017

MAD to NUTS: US Nuclear Strategy, Donald Trump, and North Korea

Asking are we on the brink of war with North Korea is the question of the day.  For many the fear is that we have two leaders–Kim Jong-Un and Donald Trump–who are  hotheads, willing to engage in public threats and not private diplomacy.  They look like two drunks in a bar at 2:00 a.m., standing chest-to-chest with one another, neither really wants a fight but neither can back down, and the conditions are ripe for the confrontation to tip out of control.  Yet the conditions for why this confrontation are so unstable reside in the evolution of US nuclear strategy which has gone from MAD to NUTS, and because so many of the conditions that actually mad the Cold War stable are not present here.

The stability of US nuclear strategy during the Cold War was MAD–mutual assured destruction. In a bipolar world divided up between the USSR and the USA, part of what kept either country from using nuclear weapons and going to war was that both countries would face certain  destruction.  Neither country would be able to prevail over the other without also suffering significant damage.  Fear of mutual assured destruction prevented nuclear war.  But the stability of the Cold War also was premised on several other factors.

First, neither country seriously questioned the regime legitimacy of the other nor that it genuinely contested each other’s core spheres of influence.  Yes there were surrogate battles across the world such as the Congo or Vietnam, but both he USA and USSR generally acknowledged the security interests of one another and did not try to cross it.  The one major instance where that line was breached was the Cuban Missile Crisis, nearly resulting in a major war.

Second, in part as a result of the Cuban Missile Crisis, the USSR and USA developed communication strategies to stay in contact.  The Hot line in one famous example.  The point is that the two countries talked to one another, they had ways to try to resolve conflicts through diplomacy.  Without talking to one another, the USSR and USA would have been locked in the classic prisoners’ dilemma where acting alone there was incentive to confess (go to war) instead of remaining silent  (Maintaining peace).  While the Cold War era was scary, MAD worked and it prevented nuclear war.

Yet beginning in the 1980s and especially into the post-Cold War era US nuclear strategy went NUTS--Nuclear utilization target selection.    NUTS was about the idea that the US had the capabilities to engage in limited nuclear war.  It could do so because of the precision of our missiles, the overwhelming force the country had, or the defenses that it had to repel an enemy attack.  In addition, as a result of the demise of the USSR, the USA as the “winner” of the Cold War felt that it potentially could make limited nuclear war just another option among others in its military menu because it did not face the threats of mutually assured destruction.  In effect, the USA could win a  limited nuclear war.

What successfully prevented nuclear war during the Cold War is missing from the confrontation with North Korea.  MAD is missing.  The US will win a nuclear or any type of confrontation with North Korea, and that alone is destabilizing because it creates incentives to take a chance and escalate a shouting match into a military confrontation.  In the case of Trump, he may be convinced we win a limited nuclear battle if it escalates to that, or that because of his apparent indifference to our third parties, a battle that inflicts damages to Japan or South Korea is acceptable.  In effect, a false or genuine belief that the USA will not face assured destruction is destabilizing,  thus moving North Korea from MAD to NUTS.

In addition, it does not help that in the last few days Trump and his Secretary of Defense have threatened the legitimacy or existence of the North Korean regime.  This too is destabilizing, but it also fits into North Korea’s game plan.  That country is an oppressive totalitarian state whose legitimacy in the eyes of its people resides in constantly stirring up fears that its very existence is under threat from outside forces such as the USA.  This appeal to fear makes it possible to extract the sacrifices the regime gets from its people.  The more Trump responds to blusters with blusters, the more it both feeds into the ability of North Korea to maintain a tight gripe on its people but also  it fuels insecurities about regime existence that can escalate into conflict.

Finally, unlike during the Cold War era, there is little in terms of back door communication channels to prevent the prisoners’ dilemma miscalculation.   Many of the statements from North Korea are blusters directed more for internal than external purposes and historically have been dismissed as such.  Yet now Kim Jong-Un’s rhetoric may be backing him and Trump into corners they cannot escape.  Neither Trump not Kim may know how far to go before their words get away from them.  In an era now (as opposed to even a year or so ago) where the two nations must deal with one another as nuclear powers, it is simply not clear how past behavior controls or directs the current conflict.

Overall, Kim and Trump may be hotheads but they face a context far different from the Cold War or from what has defined North Korean-US relations for 70 years.  It is the uncertainty of this new context that is what makes this situation so dangerous.

Final note:  Take a look at this blog of mine from last year--a work of political fiction involving Trump, North Korea, and nuclear weapons.

Saturday, August 5, 2017

The problems of the Trump presidency are real but distracting.    While the media is focused on the
Russian connection, criminal investigations, political impotence, White House staff changes, and insulting tweets, what is given short shrift are the fundamental problems with the US economy that gave rise to the Trump presidency, and how little is being done to address them.
The latest economic news superficially is great.  The unemployment rate has dropped to 4.3%, as 209,000 jobs were added in July.  This is the lowest unemployment rate in 16 years.   The economy has added job for 83 consecutive months–a record–and it now appears that all of the jobs lost during the 2008 economic crash have been recovered.  Conversely, the Dow Jones is over 22,000.  Democrats will credit Obama for the jobs report, Trump supporters will take credit for both the jobs and stocks.  But these rosy numbers do not tell the entire story.
The labor force participation rate is 62.9%.  This number measures what percentage of the eligible workforce is working.  This number remains low and has changed little in the last year.  Part-time employment has changed little over the last year, the number of discouraged workers (those who have stopped working for work) has changed little over the last year, the percentage of long-term unemployed (more than 27 weeks) has not changed much in the last year, and this group represents more than 25% of those unemployed.  In terms of wages, the average increase over the last month was 9 cents, and only a total of 2.5% over the last year.  Essentially, the Obama (-Trump) job recovery stalled at least a year ago.  It has never produced much in terms of significant wage growth, and it has not done much to bring back many new workers or the chronic unemployed back into the job market.
When it comes to the stock market, many experts argue that there is no good reason for the Dow to be at 22,000, at least this is the argument by Forbes, where the claim is that stocks are over-valued.  One traditional measure of stock value to determine if it is over-inflated is the price-earns ratio.  Historically it is about 15–a value less than that means a stock under 15 means it is under-valued, over that it is inflated.  In July the PE ratio for Wall Street was 20-way over value and comparable to the PE ratio in the late 1920s and 1990s before crashes occurred then.  It was also over 21 in January 2008, right before the current crash. Irrational exuberance might be the appropriate description here.
However, even if stocks are priced right they point to a continued economic trend in the US over the last 40 years–more and more income is being generated by stock and capital than by labor.  As the economist Thomas Piketty has pointed out, this is the recipe for why the gap between the rich and poor in the US has exploded over the last two decades.  Simply put, workers are making less money in terms of wages and the affluent more in terms of stock investments.
The recent unemployment figures coupled with the 22,000 Dow highlight the fundamental problems in the US economy that fueled the election of Trump.  He, along with Bernie Sanders, pointed to the failure of the Republicans and Democrats to do much to help the poor and working class over the last 40 years.  Good paying jobs have been lost, the gap between the rich and poor has increased, and Wall Street fiddles while Main Street burns.  Trump correctly pointed to the job anxiety of White working class America who have been left out of the economy (as have people of color but Trump never talked about that), but there is no indication in the recent unemployment reports or stock market gains to suggest that things have changed.
And there is no indication that either Trump, the Republicans in Congress, or the Democrats have viable ideas to address the problems of chronic unemployment and the rich-poor gap.   Efforts to repeal and replace Obamacare would have hurt working class America more, the proposed immigration reform does nothing to help American workers in terms of address wages or increase employment, and what little one hears about tax reform in terms of cuts to capital gains similarly will do little to address the wage and inequality gap.
The problems of the Trump presidency are many, but they distract from a deeper set of economic problems that have existed for two decades and which no one wants to fix.

Monday, July 31, 2017

Alternative Facts and Public Affairs

Note:  For nearly eight years I have served as the editor of the Journal of Public Affairs Education
For each issue, I write an introduction.  For the latest issue, I did an intro called “Alternative Facts and Public Affairs,” speaking to the latest battles in politics over science, truth, knowledge, and public policy.  Here is a portion of that intro.

What is a fact and how do we know when something is true? These are not just philosophical questions. In this era of intense partisan polarization, especially in the United States, the very notion that objective facts and truth exist is contested, and it seems acceptable for elected officials, policy makers, and the media to eschew real facts and opt instead for alternative facts. Contrary to the assertion of former US senator Daniel Patrick Moynihan, who once declared that everyone is entitled to his own opinion but not to his own facts, it now seems that everyone and each political party do have their own facts and truth. Why? Simply put, scientific facts and truth are not the same as political facts and truth; democracy and science are often in conflict, and the differing groups that support the Democratic and Republican Parties have vested interests in endorsing rival conceptions of truth. This is a dangerous proposition for governance and public affairs, where belief in knowledge, facts, and the pursuit of best practices premised on these is the mainstay of what we teach and encourage in our students as we prepare them for careers in public service.
For 30 years, I have taught American politics, law, and public policy. As someone with graduate degrees in astronomy, philosophy, law, and political science, my research and teaching centers on how policy making can be more evidence-based. In most aspects of our lives and in business, we are taught to draw on the best available evidence before making decisions. The same should be true for politicians and government. Decisions crafted out of political myths and faulty or no evidence yield bad public policy, wasting taxpayer dollars and leading to failed or ineffective programs. Yet too much policy is created without real evidence.
There are many reasons for this. One can clearly point to intense interest group politics and the corrosive impact of money on politics as possibilities. But there is also a profound difference in how scientists and politicians gather facts and think about the world.
Scientists (and most social scientists) subscribe to the scientific method. This is a rigorous approach, ideally using controlled experiments and the inductive process of gathering discrete data, which are then aggregated to test hypotheses. Scholars also often use statistical sampling to estimate how representative their samples are in terms of the phenomena being studied. One cannot examine every molecule in the universe, and good samples allow for generalizations. But there is always a slight probability of error.
For scientists, facts are rigorously tested but cannot be proved with 100% certainty. Science is about falsifying claims. Scientific knowledge is also incremental, built on what is previously known, as bricks laid one upon another to construct a wall. Scientists have built a wall of knowledge, facts, and truth. The laws of gravity, Einstein’s famous E = mc2, and 1+1 = 2 are examples. Scientific facts and truth have made possible telephones, television, the Internet, and the cure for polio. If one denies scientific truth, one might as well deny civilization. While we may not have a social science or public affairs equivalent of E = mc2, we do have an impressive trove of data and knowledge about the world of public policy and administration. We may not know truths that are etched in stone, but we do know what has failed and often what should not be done. In many cases, we have the lessons of history to guide us, or we simply do the best we can in a world of bounded rationality—we act based on the best knowledge we have and perhaps, in Charles Lindblom fashion, muddle though.
But (social) scientific knowledge is different from political knowledge. What is political truth, especially in a democracy? It is what 50% plus one of the population says: majority rule. For elected officials, what counts as facts and truth is what they learn from their constituents. A politician’s world is not one of controlled experiments, hypotheses, and statistically valid samples; what counts as valid evidence in making policies are the stories and interests of voters. This can be powerful evidence to someone who may need support in the next election. What is true in this sense has less to do with rigorous methods of investigation than with how well an assertion plays with the media or voters.
On occasion, scientific and political truth converge, resulting in good public policy. But historically they do not. The tension between scientific or expert knowledge culled from rigorous testing versus political knowledge based on majority rule is deep and has existed since Plato discussed it nearly 2,500 years ago. This is the technocracy/democracy gap. Some have more or specialized knowledge compared to others. Should the people defer to the experts or choose for themselves what they consider to be true? This is where political leadership comes in—to guide the public and make decisions based on the best knowledge at hand.
While science and democracy are in tension, how do we explain the partisan war on science between Democrats and Republicans in the United States? Battles over global warming and alternative facts are sourced in competing economic interests that support or sustain specific biases or factual worldviews. The two parties represent divergent interests that in turn have financial interests in rival conceptions of truth. Right now, Republicans are representing interests generally hostile to science, including energy companies that wish to deny climate change or workers who fear that automation will un-employ them. But this could change.
The gap between scientific and political knowledge might be bridged with more scientific education in schools. It might also be good if we elected more scientists to office. Together, this might create conditions that would make the political process more hospitable to science, yet there is no guarantee. Differing economic interests drive scientific skepticism, as do fear and prejudice, and something needs to be done to address both tendencies. The challenge for scientists and their allies is to convince the public and politicians that science is not a threat but rather enables and enriches our society.

As editor of JPAE and as a professor, I remain committed to the old-school idea that facts matter and truth exists and that both should guide the teaching and practice of public affairs. My goal has been to make sure that each issue of this journal contains articles that enhance our teaching and knowledge, helping us in the quest of producing the next generation of scholars and administrators who have the skills and knowledge to do their best to serve their constituents.

Saturday, July 29, 2017

The Lessons of the Health Care Repeal Failure: It Sucks being an Adult

Scores of lessons are to be had from the failure of Trump and the Republicans to repeal the
Affordable Care Act (ACA or Obamacare).  One of the most important is that governance is hard, or that it really does suck when you are in charge and have to be an adult.  This is the alternative reality that both Trump and the Republicans live in, and it is not clear they have learned anything from their mistakes...and it is also not clear that the Democrats have either.
Obamacare is flawed and it needs to be fixed.  It failed to do much when it came to the overall cost curve facing health care in the US (as a percentage of the GDP) and it created premium problems for those who made too much to qualify for subsidies but who were not employed or rich enough to afford to buy their own insurance.  Many of these individuals were Trump supporters–the individuals left behind by the changes in the American economy over the last generation and which neither political party helped.
However, the Republican goal in repealing Obamacare was never about fixing it.  The same was truth with Trump.  If there was one defining or uniting goal of the Republicans in the 50+ times they voted to repeal the ACA when they knew Obama would veto it, it was that they wanted to obliterate the president’s signature accomplishment simply to deny him a political success.  The same is true for Trump.  It was never about the flaws in the ACA, having a better plan, or even something as noble or principled as ideological belief in free markets and less government, it was simply to play politics, mobilize a hostile Republican base, and simply negate Obama’s legacy.  In Trump’s first six months as president, the few accomplishments he has had have all been aimed at erasing the Obama legacy.  Cancelling the Trans Pacific Partnership, railing against the Iran Nuclear Deal, banning transgender from the military, and arguing that the 1964 Civil Rights Act does not extend to sexual orientation, all had that singular focus.  There was no alternative theory, policy agenda, or grand plan regarding what to do.  The narrative was entirely negative.  All this works, perhaps, when in opposition, but not as a prescription for governance.
Many will point to the divisions between moderate and conservatives within the Republican Party as the reason why the ACA repeal failed.  There is some truth to that.  But in general, the GOP and Trump lack a governing agenda and vision for what they wish to accomplish.  In addition, there is a lack of leadership from Trump down to McConnell and Ryan.   Real leadership, as presidential  historian James MacGregor Burns defines it, is authority guided by principle.  Neither Trump nor  GOP leadership  displays that.  This leadership is about respecting the Constitution, its procedures and rules, it is about understanding checks and balances and separation of powers.  None of this is understood, especially by Trump.  He still thinks he is a CEO and not the president.  His first six months in office  demonstrate a startling ignorance of what it means to govern and there is no indication that he has learned any lessons from his failures.  He thinks, as in the case of a tweet saying transgender are barred from the military–that such pronouncements are governance and binding as law or policy.
The failure to repeal the ACA is a crisis of leadership in many ways.  It was Trump who never had a vision for what he wanted thinking that the art of the deal was s imply threatening and blustering others around.   He never understood how to negotiate.  Moreover, when push came to shove, his misogynist statements about women and saying prisoners of war were not real heroes perhaps came back to hurt him when Susan Collins, Lisa Murkowski, and John McCain voted no.  They had good reasons to oppose the ACA repeal bills, but how much was payback we shall never know.  But for the other Republicans who voted against the repeal, they were among the few adults in the Party who saw the consequences of what the bill would do.  However, for the 49 Senate Republicans who voted for repeal, they still failed to appreciate or care about how what they did would hurt not just Americans in general, but their own constituents.
The infighting in the Trump presidency is further proof of a lack of leadership.  Lacking leadership, everyone is going in their own direction and for their own interests.  No one seems to have loyalty to anyone, and that includes Trump.  The lesson if at all Trump learns from his failures is that others are to blame and that the Apprentice solution–“You’re fired”–is the solution.  Alea  iacta est–the die is cast on this administration and there is no sense that things will get any better.  No one seems to be growing up, taking responsibility, acting like an adult because, frankly, that sucks for this administration.
But the Democrats should not be so gleeful.  They seem in the Trump and GOP failures a 2018 success, but that approach of thinking Republican ineptness as the road to power is what cost them their leadership.  Faintly the Democrats realize that, trotting out a meaningless promise of a “Better Deal,” a narrative devoid of real substance and policy.  Democrats yet again seem to think that being “Republican Lite” is their salvation, instead of their problem.
The lessons of the ACA repeal failure demonstrate that it is hard being in charge.  Governance and leadership ask people to be adults who care about others, who care about the country, and who are capable of looking beyond simple personal self-interest and partisan advantage.  Right now, it is not clear that there are many elected officials in Washington who gets that.

Wednesday, July 19, 2017

No Surprise, Dayton Loses: The Legal and Political Implications

It should come as no surprise that a Ramsey County judge ruled that Governor Dayton’s line item veto of funding for the state legislature violated the Minnesota Constitution.    But with that decision, the respective powers of the three branches of government are reshuffled, leaving the governor in a far weaker position than it was before, both in the short and long term.
Dayton’s line-item veto was at best ill-advised, at worst a foolish political gambit with enormous political and legal implications.  Dayton’s use of the veto demonstrated how the legislature  had politically outmaneuvered him once again.  Not willing to take the chance of another government shutdown, Dayton refused to use his veto on several of the omnibus bills, thereby throwing away his most potent weapon to force the Republicans to do what he wanted.  Dayton blinked, signed the bills, and then used the line-item veto to try to force the legislature to do what he wanted, as evidenced by the memo he sent to them describing why he did what he did.  This memo would come to haunt him in the final court decision.
During oral arguments it was clear that the governor’s attorney was on weak ground.  As I tell  my law students, never make a legal argument asserting that you have unlimited discretion to act.  That was essentially the governor’ position–there was no limit on the power of the governor to use the line-item veto.  Unbridled discretion is never a good argument.
No surprise then  in the ruling by the judge.  Minnesota case law was clear that one branch or part of the government could not take action that would impede or prevent another constitutionally created branch of the government from performing its constitutional functions.  Second, in the original court hearing and its preliminary decision a few weeks ago the judge strongly hinted that the governor would lose.  Thus, from a legal perspective this opinion is not a shock or surprise.
Longer term, the implications here are interesting.  Between this decision and the Brayton  v. Pawlenty decision from a few years ago when the Court ruled against the governor’s use of his unallotment authority to balance the budget and end the legislative session,  decision a few years ago, the power of the Minnesota governor vis-a-vis the legislature is now weaker.  In both cases the governor overplayed his hand and now the courts have placed limits on what the governor can do on his own.  In both cases governor’s acted impulsively, in both cases they were ruled against.  The  two cases limit the constitutional powers of the governor.
At the same time, both of the cases strengthen both the legislature and the courts.  In the case of the legislature, it is stronger s a result of the governor’s constitutional wings being clipped and because it emboldens them to act and take more chances in the future.  The judiciary is stronger because it yet again became the final arbiter of who has power and how Minnesota government works.  Not only does this decision reinforce the notion that the Minnesota Courts get the final say on what the state constitution means, but with this decision they got to decide how to allocate political power in Minnesota.  This decision redrew the lines of separation of powers in Minnesota.
Short term, Dayton now is even weaker going into his last year than he was before, and Daudt even stronger, thereby enhancing his status as a gubernatorial candidate.   The decision has huge implications for the 2018 governor’s race.  Notice how Attorney General Swanson stayed out of this  case–she was smart politically not to defend the governor in a case she must have known he would lose.
Finally,  notice how the DFL Legislature sold out the governor.   Dayton’s use of the line-item veto was also a result of the Republicans’ flagrant violation of the single-subject clause in the State Constitution.  Dayton could not argue that point in his defense because he signed the bills he objected to.  However, if the Democrats had raised a single-subject objection to the bills in a separate case, it would have been possible for court to join the line-item and single-subject arguments together.  Historically, the two clauses have common histories in terms of their goal in policing legislative corruption and abuses.  Yet while John Marty tried to get support for this challenge, his DFL colleagues failed to support him, demonstrating how much the political and legal interests of  them and Dayton had departed.  What will be interesting to see is the political fallout of this failure to support the governor, both in the remainder of Dayton’s term and in how it plays out for the 2018 legislative and gubernatorial elections.