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.

Saturday, July 15, 2017

Abandon Trump? The Republican Party Dilemma

No question more perplexes political pundits, the news media, and Democrats than “When will
Republicans abandon Trump?  The simple answer is that the odds of Republicans–both those in Congress and his base–abandoning Trump is like waiting for Godot.  In both cases, one can hope that Godot appears or the Republicans will flee from Trump and impeach him, team up with Democrats, or do something else, but the reality is that it just may not happen.
Now nearly six months into the Trump era the carnage of his presidency persists.  This week the Russian connection revelations continued to mount, depicting  patterns of illegal or unethical collusion between Trump campaign officials and family and Russian nationals if not the government.  Revelations of Trump family conflicts of interest intensify, Trump embarrasses himself and the USA across the world, his travel ban takes another court hit, and his policy agenda including efforts to repeal Obamacare look like one mistake after another.  Allegations  of obstruction of justice engulf the administration as the FBI probe continues, and to many, Trump tweets and alternative facts simply add to a narrative of a largely failed presidency unable to get anything done.  With the Republicans tasting policy victory last fall and only to see it slipping out of the fingers now and facing a potentially fatal 2018 election, why haven’t Republicans abandoned Trump?
Many look to the lessons of Watergate as hope that the GOP will reject Trump.  Back when Nixon was president his resignation was the product of not just political pressure by Democrats but also by notable Republicans in the House and Senate calling for his impeachment or resignation.  Public opinion support for Nixon also eroded, and he could not count on his base to support him in sufficient numbers to prop up his presidency.  Even his own Supreme Court abandoned him in U.S. v. Nixon and the mainstream media was nearly of one voice in going after Nixon. Surely, some assert, this should be Trump’s fate any day.  Not necessarily.
The 1970s is a different era from today.  Most significantly, the level and strength of partisanship today is far more powerful today than then.  Back in the 1970s about one-third of the members of Congress came from swing districts, those which were capable of flipping from one party to another.  The percentage of swing voters–those who split tickets voted or switched from one party to another when voting was about 15% of the electorate.  The Republican and Democratic parties were ideologically more mixed and straight party-line votes the exception and not the rule.
Today, there are fewer than 20 or so seats in the House of Representatives that are swing.  The number of seats  where Clinton won the presidency but a Republican in Congress is very small.  Party-line voting is the norm and not the exception in Congress and the Republicans and Democrats are so polarized such that the most liberal Republican in Congress still votes more conservatively than the most conservative Democrat in Congress.  The percentage of swing voters has dropped to about 5%, with swing meaning now swinging into votes or not voting, and not split ticket voting.  Partisan preferences have hardened, especially at the presidential or national level, and political scientists now note how individuals will change their policy preferences to conform with their party identification, and not vice versa.
Why is all this important?  Despite all of Trump’s problems, partisanship is more powerful than presidential performance.  Republicans have embraced Trump as their president, flaws and all.  This was no different from what the Democrats did with Clinton in 2016.  Despite all the clear warning signs that Clinton was a flawed candidate, Democrats stuck with her no matter what.  Democrats went down with Clinton as the captain of their ship, Republicans may do the same here.
Don’t count on Republicans abandoning Trump.  They still support many of his policy objectives and see a better chance of getting what they want if they are with as opposed to him. They still want to repeal Obamacare and may still succeed.  Consider some one such as Senator Susan Collins.  Depicted as a moderate, yet whenever push comes to shove, she votes the Republican line.  The same might be said of John McCain.  Right now they oppose the yet again revised version of the Senate health care bill and it looks doomed, but the same was said a few months ago about the House bill.
Moreover, don’t count on fear of what could happen in the 2018 elections as a motivating  factor for Republicans.   The latest public opinion polls (Gallup)  still show that 38% of the voters support Trump.  This percentage has not varied much in two months. His core base is still with him.   The Democrats are defending 25 Senate seats in 2018 (23 Democrats and two independents) than Republicans at eight, and there does not seem to be too many swing seats for Democrats to pick up in the House.  Trump’s core base is concentrated in enough congressional seats such that fleeing him there would invite Republican primary challenges from the right.  Finally, Democrats lack a narrative, plan, and strategy for 2018, they are still counting on Trump’s unpopularity to the springboard to victory.  This is Clinton’s 2016 mistake all over again.  Finally, the news media is not universal in  its condemnation of Trump; Fox national news provides alternative facts to the Trump base that reinforces partisan support.
It is possible that the Republicans will abandon Trump, but it is equally possible they will not.  Hoping it will happen is simply like waiting for Godot.

Friday, July 7, 2017

Trump at the G20: The End of the American Century

If  Donald Trump’s presidential goal was to “Make America Great Again,” he has a funny way
of going about doing that.  If anything, the G-20 Summit demonstrates how after barely six months as president the United States is a weaker country than it was before he took office.  The weakness resides in the decline of American soft power internationally.
Two elements were critical to the creation of what LIFE magazine editor Henry Luce declared in 1941 as the coming  American Century.  First, coming out of World War II the United States was militarily the strongest nation in the world.  That position was only enhanced by it being the first nuclear club member and persists today as the United States spends more on defense at $611 billion than the next eight countries combined spend at $595 billion.  US hard power is the greatest in the world.  The US simply has the fire power to muscle its hegemony across the globe.
But equally if not more important to creating the American century has been its soft power.  The term soft power was developed by Harvard scholar Joseph Nye in his 1990  Bound to Lead: The Changing Nature of American Power.  It is the power to influence world opinion by way of its culture, political values, and foreign policy. In many ways, soft power is the international equivalent of Richard Neustadt’s power to influence in Presidential Power–both describe the less coercive but equally important and effective ways that power is leveraged.  Paul Kennedy’s The Rise and Fall of the Great Powers credits the dominance of the United States as building a world in its image via both the strategic use of hard and soft power.  Soft and hard power work together much like carrots and sticks.
From World War II to the president there has been a Washington consensus on how to maintain American power.  Beyond significant military spending, supporting free trade, relatively liberal and democracy values, and exporting US culture have been instrumental.  So has been inviting foreign students to study in the US, allowing for business investment overseas, and pursing foreign policies and multilateral treaties.  While the US has not always been consistent in it values and goals, and the benefits and burdens of its policies have not always been equitably been distributed, there is no question from Truman to Obama there has been more consistency that disruptions in US foreign policy.
Trump’s presidency is challenging all of that, and not for the good. Pulling back on free trade and retreating from the world means less influence for the US.  To be the dominant player in the world the US has to be a player, and Trump does not want that.  At the G-20 summit the European Union and Japan have finalized a trade agreement that leaves the US out.  Trump has decimated the State Department making it difficult to engage in diplomacy.  He has pulled out of the Paris Accords, questioned NATO, bashed our allies, and alienated partners that we need to bring stability to the world.  North Korea’s recent missile launch show how with a decline in soft power the US options are narrow.  Even a military solution seems fraught because without soft power, hard power is vastly weaker too.
It would be easy to create a laundry list of all the things Trump has done to damage America’s reputation and soft power.  But the point is that entering G20, the meeting with Putin, the crises with North Korea, Syria, and maybe ISIS, Trump has undercut the very conditions that made it possible for the US to be great, powerful, and influential.  His presidency is proving less about making America great again and instead it relegating the US to a more marginal player in an international chess game that once placed the country at the center in terms of its influence.

Wednesday, July 5, 2017

Is Minneapolis Ungovernable?

Is Minneapolis ungovernable?  Increasingly critics, usually conservative,  point to a host of factors
suggesting that the city has become ungovernable.  The culprit in this indictment is party or partisanship.  While the ungovernability charge may be overblown, it does speak to an issue than no one is talking about in this year’s mayoral election–how the city is changing and why a rethinking of the structure of city government may be desirable and necessary to accommodate these changes.
The symptoms of ungovernability are many.  Look to the endless and overdue completion  of the construction on Nicollet Mall, or the increased traffic jams downtown caused by ill-planned or coordinated road construction.  There are racial disparities in educational outcomes, the persistent segregation, high taxes, the economic imbalance among races and across neighborhoods, and what some would allege are a police department out of control, or at least a police department where the mayor and the police chief seem out of sync.  And then some would point to a mayoral election four years ago producing 38 candidates, or on a policy level, adoption of a $15 per hour minimum wage.  For some, these and other examples point to a city out of control, one needing limits placed on its ability to legislate as was the aim by Republican state legislative bills this past session.
Many of these examples do point to problems within Minneapolis, but they may be symptoms of deeper issues.  For Republicans and conservative critics the problem is single-party DFL rule.  There is some truth to the concern that single-party dominance fails to provide sufficient checks on political excess and perhaps it might be good if the city elected one or two Republicans to the city council or even the state legislature.  If the latter, then perhaps Republicans might have more interest in the city because a member of their own party would be advocating for Minneapolis.  Yet Minneapolis is not completely single-party rule; the DFL is generationally divided between the old  Baby Boomer farmer labor party and the Millennial identity politics parties.  Yes, Minneapolis is a leaning left city, but simply to argue that it is ungovernable because of that is not accurate.
Many of the other problems that Minneapolis has are not unique to it.  Road repair and construction coordination is a regional issue in Minnesota and it demands better planning across jurisdictions.  The concerns about policing in Minneapolis are not new.  Lincoln Steffens’ 1904 The Shame of the Cities lists even back then Minneapolis and its police department to be corrupt or poorly managed.  Problems of segregation and the racial disparities across many benchmarks are metropolitan- if not state-wide; the suburbs and failed state policies are as much if not more to blame  than anything Minneapolis has done.  The symptoms of ungovernability some point to are not the fault of Minneapolis and may light in the need to rethink and expand regional governance or coordination as once was the dream of the Met Council.
Finally, one can also assert that the city is not ungovernable.  But most national accounts,  the city works and produces a quality of life that is outstanding for most residents.  It has a strong economy, great parks, a vibrant arts sector, and many decent neighborhoods.  Yes, many–especially the poor and people of color are being left behind–but that is not unique to Minneapolis.  This is the sad story of how race, class, and gender divide America and how neither the Democrats nor Republicans nationally over the last 30-40 years have done much to address these issues in a satisfactory way.  The failures of Minneapolis are the failures of the United States.
But if Minneapolis is ungovernable perhaps it is time to reconsider the structure of the city government.  More or less, the basic structure of the city government has not changed in a half of century of not more.  By charter, it is a city with a weak mayor and a strong city council.  The basic duties of the two have not changed over time, but the challenges facing the city have grown ever more complex in the last half century.  The complexities arising from changing demographics, economic conditions,and generations.  The population alone now is the largest it has been since the early 1970s, and there are more cars in the city and around it ever.  Minneapolis is now the economic hub of 16th largest metropolitan statistical area in the US, and the population surrounding the city is greater than it has ever been.  In many ways, Minneapolis faces pressures and challenges it has never  previously confronted, yet it is still trying to do that with a political structure that may be dated.
The solution is not clear but a serious charter revision may be in order.  Perhaps the city should consider creating a stronger mayor form of government, or even consider a city manager option.  There may be other options too.  But the simple answer is that Minneapolis may wish to rethink how it governs itself, assessing whether the structure it presently has is the one it needs to face the present and future needs of the city and its people.