Category Archives: Public Policy and Governance

Time to Fight Back With Everything We Have…

Much of the damage being done by the Trump Administration can be contained (thanks to the Administration’s rather awe-inspiring incompetence), or eventually repaired (when the GOP’s radical fever breaks). People will have been unnecessarily hurt in the meantime, true, but most of the harms can (and probably will) be addressed when (we can hope) cooler heads prevail.

There are only two exceptions to that comforting thought: war and environmental degradation.

If Trump becomes desperate to divert attention from his governing failures and falling poll numbers, the chances of his starting a war are not negligible. And his assault on the already inadequate measures meant to protect the planet from further environmental degradation–if at all effective–will delay efforts to mitigate climate change and result in a loss of time that we don’t have.

We have to hope that the Generals Trump so disdains can prevent him from starting a war; but Trump has already begun his environmental assault with a vengeance. As Politico reports,

In just 40 days, Trump has made it easier for coal miners to dump their waste into West Virginia streams, ordered the repeal of Clean Water Act protections for vast stretches of wetlands, proposed massive job cuts at the Environmental Protection Agency and prepared to begin revoking the Obama administration’s most ambitious climate change regulations.

Trump is also expected to overturn Barack Obama’s moratorium on new federal coal leases, and is considering automakers’ pleas for relief from a scheduled tightening of vehicle fuel-efficiency standards. Obama’s pledge to send billions of dollars to United Nations climate programs is also likely on the chopping block. And Trump hasn’t ruled out withdrawing the United States from the 200-nation Paris climate agreement, a step that could undercut the international effort to confront global warming.

The Politico article details a number of other actions Trump plans to take–including actions to roll back regulations that protect the nation’s air and water quality. He has already signed off on congressional repeals of some Obama-era regulations, including  Interior Department regulations that protect rivers and streams from coal mining pollution.

And this week, he ordered EPA to begin rewriting the Obama administration’s sweeping “Waters of the U.S.” rule, a move that green groups say could leave 60 percent of U.S. stream miles and 20 million acres of wetlands unprotected from development or pollution.

What makes this assault so senseless is that even people who stubbornly refuse to believe that climate change is real should want clean water and breathable air.

The only saving grace of this wholesale assault on science and common sense is that most of these orders won’t take instant effect. As the Politico article notes, it could take years for the EPA to undo the regulations, and the administration will face fierce legal challenges from environmental groups.

In the meantime…

It’s time for every lawyer who can spell “environment” to challenge the Administration’s actions. Executive Orders cannot unilaterally overrule laws that have been duly enacted. I don’t know enough about the processes of regulatory adoption to know whether such orders can revoke them without invoking substantive procedures, but it seems unlikely that rules adopted after lengthy hearings and expert testimony can be undone with the stroke of a denialist’s pen.

Of course, the President and the head of the EPA can simply decline to enforce existing laws and regulations, but that would seem to put businesses subject to the regulations in a very uncomfortable spot; they have a legal obligation to comply with existing rules, and there are probably non-EPA organizations and individuals who would have standing to sue enterprises that made a calculated decision to violate existing law.

In addition to “lawyering up,” every one of us who cares about the environment–or just wants clean air and water and a government that respects science and the rule of law–should contribute as generously as possible to environmental organizations (preferably those having a legal team).

And last but most certainly not least, every one of us has to begin now to organize for the 2018 elections. Find people to run against Trump-supporting incumbents–either rational Republicans to primary them from the left, Democrats to oppose them in the general election, or both. Register any unregistered person we can find, and make sure that person has identification sufficient to satisfy the relevant Voter ID laws. Get anyone who didn’t vote last November to the polls.

We need to change this feckless Congress as soon as humanly possible, because some kinds of damage can’t be fixed.

 

Why Knowledge Actually Matters….

I’m constantly amazed by the number of Americans who look askance at candidates for public office if they have government experience and/or training– the voters who express their preference for electing “outsiders” who will not be “disadvantaged” by actually knowing how government works.

I’m pretty sure those same voters wouldn’t choose a doctor who had never been to medical school, or a mechanic who didn’t know where their car’s engine was located.

Doctrinaire libertarians and “small government” conservatives may be nostalgic for the days of the Vermont Town Hall meetings, but this country is not going to get rid of the agencies that inspect our food and drugs, ensure that airplanes don’t crash into each other, keep businesses from colluding to fix prices, corporations from lying to prospective shareholders, and more. (Nor–despite the fantasies of this Administration and the real harm it can do–are we going to get rid of environmental rules and regulations, enforcement of civil rights laws, or public schools.)

Voting in a “management team” that doesn’t understand what government agencies do or how they do it, a team that is unfamiliar with constitutional checks and balances, and ignorant of settled U.S. foreign policy, diplomatic norms, and the definition of the national interest is like asking the company janitor to assume control of a multi-national corporation.

Even if he was a really good janitor, it isn’t going to go well. If he was an unstable and intellectually limited janitor with very spotty cleaning skills , he’s going to do a lot of damage to the company.

A couple of examples may illustrate the problem.

During the Presidential campaign, Donald Trump confidently asserted that he would bring back jobs in the coal industry. He argued that “burdensome” regulatory activity–like keeping miners safe and coal ash out of Americans’ drinking water–had caused the industry’s declining employment.

But as this article and several others explain, what’s killing coal is the market, not regulation.

The U.S. coal industry basically imploded as Chinese demand slipped. Peabody Energy, Arch Coal, Alpha Natural Resources, Patriot Coal and Walter Energy have all filed for bankruptcy over the past two years. (Peabody Coal is nearing a plan to pull itself out of bankruptcy.) The number of people who work in coal has tanked, too. In 1985, the industry employed 177,000 people. At the end of 2008, that number fell to 86,000. It was at 56,000 by last year.

“The market is telling coal that it’s a dying fuel source because we have abundant supplies of natural gas that are indigenous to the country,” Pete Fontaine, a veteran environmental lawyer who works for fossil fuel companies, told HuffPost. “You can scrap rules that make coal mining more expensive, you can scrap the Clean Power Plan, but ultimately coal is on the way out.”

Over at Dispatches from the Culture Wars, Ed Brayton points to another example:

Like virtually every other environmental measure, Trump is trying to roll back the CAFE standards for efficient engines in cars and trucks, on the premise that such regulations increase the price of cars. But in reality, doing so would actually cost consumers more money.

Trump’s misguided move to appease the ever-myopic U.S. auto industry would undo efficiency gains that will provide consumers $98 billion in total net benefits, primarily from reduced fuel use. Individual car buyers would lose “a net savings of $1,650” (even after accounting for the higher vehicle cost) as the EPA concluded in its final January “Determination on the Appropriateness” of the standards.

The savings from the new standards are so significant that the EPA calculates “consumers who finance their vehicle with a 5-year loan would see payback within the first year.”

Rolling back the standards would also boost U.S. oil consumption by 1.2 billion gallons and increase U.S. carbon pollution by 540 billion tons over the lifetime of the model-year 2022–2025 cars.

When managers–private or public–don’t know what they don’t know, and are unwilling to educate themselves or consult people who do understand the way things work, they advocate “solutions” that make matters worse.

When experts are scorned as “elitists” and scores of knowledgable agency employees are told to pack their bags, what comes next won’t be pretty.

Isaac Asimov, the brilliant scientist and science-fiction author, said it best:

“There is a cult of ignorance in the United States, and there has always been. The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that ‘my ignorance is just as good as your knowledge.”

That cult of ignorance has given us an Administration that rejects science and subject-matter expertise in favor of conspiracy theories and authoritarian ideologies.

I wonder–if America survives this, what lessons–if any–will we learn?

When The Emperor Has No Clothes…

Yesterday, the Republicans’ much-hyped replacement of the Affordable Care Act went down in flames.

There are multiple lessons to be drawn from the legislative fiasco we’ve just witnessed, although I am doubtful the people who most need to learn those lessons are capable of doing so.

The first–and most obvious–is that Donald Trump presides (in the words of David Gergen, who has served both Republican and Democratic Presidents) over an incompetent and delusional Administration. “I actually think this may be the worst hundred days we’ve ever seen in a president.”

As one wag commented, William Henry Harrison had a better second month.

Political commentators have repeatedly catalogued the myriad ways in which Trump is unsuited for the Presidency–including but not limited to his emotional and mental instability, lack of intellectual curiosity and ignorance of the structures and operations of government. Those deficits translate into an inability to understand that Presidents–unlike CEOs of closely-held corporations–cannot simply issue orders to Congress, a co-equal branch of government, and expect compliance.

The art of a legislative “deal” is distinctly different than the art of developing a parcel of real estate. A successful Presidency requires skills that Trump neither possesses nor understands.

Then there is Paul Ryan, who has long been lauded as the Republicans’ policy wonk. The lesson here is that in a group of midgets, even a short guy looks tall. Ryan has had seven years to craft a replacement for Obamacare; clearly, he spent none of that time considering what such a replacement should look like. Ryan has been “defrocked”–shown to be all political posturing and no policy chops. The bill he tried to peddle to his fractious caucus was an abysmal piece of legislation–a “steaming pile of excrement” in the words of one Republican lawmaker.

Even if Ryan had possessed the skills credulous pundits have attributed to him, however, it probably would not have been possible to bridge the deep divides within the GOP. The aptly-named “lunatic caucus” wants nothing less than a government retreat from any participation in healthcare, including Medicaid and Medicare. The moderates–mostly elected from more competitive districts– understand that such a retreat is neither possible nor desirable, and wanted legislation that they could have described as improving upon the ACA.

The only thing the two factions agreed upon was that they were being asked by a President with a 37% approval rating to vote for a measure supported by 17% of voters.

Congressional Republicans are hopelessly divided between the radical ideologues produced by 2011’s extreme gerrymandering (who don’t give a rat’s patootie what their party’s leadership wants) and the GOPs (somewhat) more traditional representatives.

The third lesson, then, is that It will only get worse.

The Party of No is no longer capable of getting to yes.

A New Embarrassment Every Day

Donald Trump may not be making America “great” again–unless your version of “great” is white, Christian, intolerant and angry–but he is certainly making the U.S. government the focus of attention, both at home and abroad.

Each day, the Commander-in-Chief of the world’s most powerful nation does something to embarrass sentient Americans and appall foreign observers. Sometimes, it is a prominent display of boorishness, of the sort we saw during Angela Merkel’s visit, but usually it is a statement or a tweet that puts Trump’s incredible ignorance on display–the sort of obliviousness that Dana Milbank addressed in a recent Washington Post column.

Seeking and winning the presidency has been a magical voyage of discovery for Donald Trump.

Tuesday night, he divulged a most remarkable finding: Abraham Lincoln was — are you sitting down for this? — a Republican.

“Most people don’t even know he was a Republican,” Trump told a group of Republicans. “Right? Does anyone know? A lot of people don’t know that.”

As Milbank noted, a lot of people actually do know that, considering that the GOP routinely calls itself the “Party of Lincoln.” He went on to catalogue other discoveries that evidently came as a surprise to our President: Health policy is complicated, slavery is bad…

Beyond this Lincoln revelation, Trump has happened upon many other things that people didn’t know. Such as the complexity of health care: “Nobody knew health care could be so complicated,” he said recently. And the existence of abolitionist Frederick Douglass, who died in 1895: “Frederick Douglass is an example of somebody who’s done an amazing job and is being recognized more and more, I notice.”

Later, touring the new African American history museum in Washington, Trump discovered that slavery was bad. Spying a stone auction block, Trump said, according to Alveda King, a part of his entourage: “Boy, that is just not good. That is not good.” King also told the Atlanta Journal Constitution that upon seeing shackles for children, Trump remarked: “That is really bad. That is really bad.”

I’m relieved to know that our inarticulate President considers slavery “bad.” Evidently, however, his enlightenment about human equality stops there. His misogyny–embarrassingly on display during the Merkel visit–emerged again with his choice of delegates to the U.N. Conference on Women’s Rights. As Common Dreams reports:

Earlier this week, the State Department announced that representatives from infamous anti-LGBTQ hate group the Center for Family and Human Rights (C-FAM) and from the far-right Heritage Foundation will represent the U.S. at a United Nations conference on women’s rights later this month….

One delegate, Lisa Correnti, is an executive vice president at the Center for Family & Human Rights (C-FAM), which the Southern Poverty Law Center has labeled a hate group since 2014. C-FAM was explicitly formed in the ’90s to push back against the rights of women in U.N. resolutions and policies. One of C-FAM’s core missions is to advance laws that restrict the rights and protections of LGBTQ people; its president recently called contraception and gay rights “devilish gospel.” The organization signed on in favor of Russia’s anti-gay laws, which have led to arrests, prosecution, and physical assaults from government agents for gay Russians.

Adding insult to injury, these delegates “are opposed to the U.N. as a whole and the fundamental rights of women in particular.”

The unanswered question is: did the Administration know its chosen delegates would be seen as an “in your face” rejection of the conference’s entire premise? Or did they just assume that an organization named “Center for Family and Human Rights” would be supportive of women’s rights? In either case, it’s another humiliation for the U.S.

If the Trump Administration were a comedy show, we might find its level of cluelessness amusing. If it was the government of an emerging third-world country with no tradition of democratic rule or experience with international diplomacy, we might shake our heads and dismiss the spectacle as a remnant of pre-modern autocracies. (“Sad!”)

Trump and his terrifyingly unqualified cabinet and staff are in a position to do incredible harm to our country and our fellow citizens, and thus far an equally inept (and in some cases dishonest) Congress has aided and abetted, rather than restrained or opposed this travesty of an administration.

It’s beyond embarrassing.

 

The Gorsuch Nomination

As I have previously written, the most damning argument against Judge Gorsuch’s confirmation has nothing to do with his bona fides, which are impressive. It is the inescapable fact that his elevation to the Supreme Court will be illegitimate–the result of a very dangerous and cynical misuse of political power.

The Republicans’ refusal to afford Merrick Garland a hearing has been widely criticised as blatantly partisan, so I nearly fell off the treadmill yesterday morning during my workout, as I watched an interview with Lindsey Graham. Senator Graham praised Judge Gorsuch and rattled off his qualifications; then he opined–with no hint of irony–that failure to confirm him would be “political” and thus unprincipled.

Unfortunately, those conducting the interview failed to ask the obvious follow-up question: if failure to approve Gorsuch would be “playing politics,” what the hell was failure to even consider Garland?

The hypocrisy is breathtaking.

But what about Judge Gorsuch himself? His willingness–even eagerness–to fill a seat that will inevitably be seen as stolen is understandable; it’s the Supreme Court, after all. He is clearly highly intelligent; his academic background and professional experience are exemplary. His opinions–whether we agree with them or not–are clearly within the broad mainstream of the judiciary.

The two areas that trouble me are his professed version of originalism and his ambiguous  approach to substantive due process.

True “originalism” comes in a number of respectable versions, but over the past couple of decades, the term has become code for “conservative in the mold of Scalia.”  As Judge Posner (himself a conservative jurist) has persuasively noted, Antonin Scalia’s self-described originalism was incoherent and conveniently invoked. I don’t know any legal scholars who do not begin their analyses by looking to the Constitutional text and its historical meaning–and I don’t know any credible legal authority who would agree with a nice man I once debated, who insisted that “free speech” applied only to oral communications, not newspapers, books or other non-spoken transmittals of ideas. (“It says speech.”)

I often introduce the subject of original intent to my classes by asking “So, what did James Madison think about porn on the internet?” Usually, they laugh–and after we acknowledge that James Madison could never have envisioned the Internet, we consider how the Founders’ clear intent to protect the expression and exchange of ideas from government censorship should be applied to “facts on the ground” that those Founders could never have foreseen. In these situations, people of good will–all of whom believe they are honoring the principles the Founders intended to protect–can come to different conclusions about what fidelity to original intent requires.

I’d be very interested to know how Judge Gorsuch defines his originalism.

The Judge’s approach to substantive due process (sometimes called the Constitutional right to privacy) is unclear. Unlike our conversational use of the term, the constitutional right to privacy is shorthand for the individual’s right to self-determination, the doctrine that identifies fundamental individual rights that government cannot infringe without a compelling reason.

As the Court put it in one case, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Substantive due process requires government to respect the right of individuals to hold their own political and religious beliefs, define their own life’s meaning, choose their own life partners and control their own procreation. It defines certain areas of citizens’ lives as “off limits” to government. Our current privacy jurisprudence began when the Court struck down a Connecticut law prohibiting married couples from using contraception; the Court held that such intimate personal decisions were none of the government’s business.

Scalia was a ferocious critic of substantive due process; he had a crabbed, authoritarian view of individual liberty. (In Lawrence v. Texas, his acerbic dissent made clear his belief that government has the authority to outlaw fornication and masturbation.)

Would Judge Gorsuch agree? Will he follow Scalia, or respect existing legal precedents that protect our “intimate” behaviors and relationships from legislative assault?

Assuming Judge Gorsuch is confirmed to the “stolen seat” on the Court, his approach to originalism and substantive due process will be critically important. It would be nice to know his positions on those fundamental issues before the Senate votes.