Ben Sasse is a Senator from Nebraska. He has been one of the very few Republicans in the House or Senate willing to criticize Trump–actually, he may be the only critic who isn’t leaving public office–the only one who levels criticisms knowing that he will have to face voters and defend those criticisms.
After watching Sasse’s testimony during the Kavanaugh hearings, I have no doubt that he will be able to mount that defense. Here is a public official who has clearly studied the Constitution and considered the implications of its construction. Here, too, is a man who actually “tells it like it is”–who is sharing a thoughtful and informed analysis of where we are that is based upon knowledge of the political context and American history.
There used to be a lot of Ben Sasses in the GOP. There are virtually none left, and America and its governance are broken as a result–not because he is right about the issues (I disagree with him on a number of them–and I find it ironic and depressing that despite his criticisms, he almost always votes with Trump )– but because he brings reasoned argumentation to the policy process.
When conversations turn to questions about suspicious public policies, a favorite explanation is “well, follow the money.” The implication is that people who will benefit have “purchased”(or at least influenced) the policy in question.
We very rarely follow the lack of money, although underfunding government agencies and efforts is a time-honored way that lawmakers can pretend to be addressing issues that the public cares about–issues that they (or their donors or supporters) wish would go away.
This tactic is more obvious at the federal level, but it characterizes state politics as well. Recently, I attended a small meeting of professional women–including a few lawyers–who were concerned about the inadequacies of Indiana’s Civil Rights law and the state’s underfunding of the Indiana Civil Rights Commission. The meeting was called after several attended a recent speech by a law school professor; she had enumerated the provisions of Indiana’s Civil Rights law that make it difficult or impossible to punish discriminatory behaviors–especially (but certainly not only) sexual harassment.
When I practiced law, the few discrimination cases I handled were filed with the EEOC–a federal agency. The EEOC has jurisdiction over workplaces with 15 or more employees. I was unaware that Indiana’s Commission has jurisdiction only over companies with 6 or more employees–if you are harassed or discriminated against in a workplace with 4 or 5 employees, or fewer, you are just out of luck. No remedy exists.
In cases of sexual harassment, even people who are “covered” under Indiana’s law have no incentive to bring a complaint, since our Commission can award only back pay–if the complainant was fired. No punitive or other damages, and thus no incentive for an employer to “straighten up and fly right.”
Not only that, but in order to have a case adjudicated in state court, the employer must agree to be sued. In writing. And religious employers (including religiously affiliated organizations like hospitals) are exempt. (Given the number of news stories about preachers who prey while they pray, I found this rather astonishing.)
Deviation from the administrative process is uncommon because the Indiana Code requires written consent from both parties before the civil suit commences. Nonetheless, in the unlikely event that a complainant obtains the respondent’s consent, another provision of the Indiana Code mandates that the case be tried by a judge, not a jury. Even if the employee wins the case, his damages are limited to “wages, salary, or commissions.” Furthermore, he cannot recover his attorney’s fees. Thus, the combined effect of these statutes unfairly biases state civil rights proceedings against complainants.
As appalling as I found these elements of Indiana’s law–inadequacies which evidently place us among the four least-protective states in the country–what really focused my attention on Indiana’s lack of commitment to nondiscrimination and fundamental fairness was the agency’s funding. The Commission is one of the most poorly funded state agencies, and its employees are among the most poorly compensated. If our state law were to be improved, and the Commission’s jurisdiction expanded, it simply wouldn’t have the capacity to hear the additional complaints. It can barely cope with its workload now.
What I learned at that meeting was that the persistent refusal of Indiana’s lawmakers to pass a hate crimes enhancement law is part of a larger pattern. Not only are we one of only five states without a hate crimes law, but previous efforts to add “four words and a comma” to our civil rights statute–to include sexual orientation and gender identity to the list of identities protected against discrimination–have also gone nowhere.
Our civil rights statute is among the four least protective in the country, and we significantly underfund the agency that is charged with enforcing the few protections we do offer.
Welcome to Indiana, the Mississippi of the North….
France has a growing middle class. The United States has a shrinking middle class.
I realize that Americans are reluctant to learn from other countries (most prominent example: healthcare, where we insist on spending twice as much for much poorer results, because hey! we’re Amurica and we know best about everything…), but we really could learn a lot if we were so inclined.
According to the Washington Spectator (link unavailable), America’s middle class has dropped from 60% of all households in the 1980s to 50% in the mid 2010s. Meanwhile, the French middle class rose from 60% to 68%.
The poverty rate for U.S. children in two-parent families in 2010 was 13.7%; in France, it was 8.2%. (That was for children in two-parent families. For all American children, the child poverty rate is 21%; in France, it is 5.7%. As the Spectator points out, the damaging effects of growing up poor are well-documented and socially undesirable.
Why the difference? What does France do right that we don’t?
Although the article fails to mention it, that health care system I referenced is a huge asset to French families, especially families with children. Just knowing that an unexpected illness won’t wipe you out is a big stress reliever, as is the knowledge that you can take a sick child to the doctor without the visit making you late with the rent.
Although the article doesn’t mention health care, it does focus on three other aspects of French social policy that are very different from ours, and that the author finds particularly important: paid parental leave, affordable child care and the French tax system.
In France, paid family leave replaces 100% of the average wages earned by women in the three months following birth or adoption. Eight weeks of paid leave are mandatory, although many businesses offer more. The U.S., in contrast, is the only developed nation that does not have a national paid leave program; as a result, some 25% of new mothers return to work within ten days of giving birth. (It hurts even to type that statistic; I remember how long it took me to feel up to par after childbirth!)
The French child-care system is even more impressive to someone like me, who struggled to find adequate childcare despite having the financial wherewithal to pay for it. France has creches–childcare centers for infants and toddlers under 3–and part-time centers that operate both before and after school. There are other centers that open on days when school is out, and during summer vacations. And all of them are subsidized by the French government. The cost to a family is approximately $1.25 per hour per child.
In the U.S., the after-tax cost of childcare is equal to 38% of average U.S. wages, one of the things that makes parenting an expensive proposition and is a disincentive to women with children entering the workforce.
Finally, French families with children are taxed at a lower rate than families without children. The disparity in tax rates, the maternal leave policy and the generous subsidies for comprehensive child care are all justified by the French belief that children are an investment in the future of the nation.
Clearly, American policymakers don’t see it that way.
I try to read a variety of information sources, but I will be the first to admit that–if it weren’t for my architect husband–Engineering News Record would not be among them. It is a print publication that considers itself “the construction resource,” and focuses on matters like the reason for that Italian bridge collapse and the technology of road paving. These are subjects that fascinate my husband, but usually aren’t among my preoccupations.
However, there is a real virtue to reading such publications for a policy person, because they report on the practical implications of what might otherwise be abstract and ideological policy debates. That is exactly what the most recent issue did in its discussion of Trump’s misbegotten tariffs, in an article titled “Equipment Readies for Tariff Fight.”
As the article reported, “the reality of new surcharges on all sorts of imported materials and finished goods has begun to reverberate through the global supply chain for construction equipment.” And that global supply chain is complicated–something a ham-handed and ill-considered policy can disrupt in unexpected ways and with unanticipated consequences.
The (sobering) points made by the article can be summarized by a quote from a vice-president of the Association of Equipment Manufacturers: “Everyone loses in a global trade war. Tariffs are taxes on American consumers and businesses.”
Major manufacturers have already raised their prices in anticipation of the higher up-front costs of steel and other materials. According to Senator Chuck Grassley, tariffs the administration aimed at imports of automobile components have also hit heavy-duty trucks, buses, construction equipment, agricultural equipment and industrial engines. As those prices increase, they’ll be passed along, so prices paid by consumers will rise. (There has already been a 32% rise in the cost of hot-rolled, coiled steel.)
Some 30% of of the construction equipment manufactured in the U.S. is designated for export, and the imposition of tariffs has “upended” the industry, which had been anticipating a period of strong sales. As a consequence, according to industry spokespersons, manufacturers are likely to shift production to “places like China or Brazil.”
These tariffs and retaliatory tariffs will put U.S. manufacturing at a disadvantage, because dozens of OEM’s have facilities around the world. It will tip the balance and they’ll just move out of the U.S. to make the equipment somewhere else.
The decision whether to shift the locus of manufacturing is only one of the consequences that has yet to be felt; as the article quoted one construction industry representative,
The point about tariffs is the effect doesn’t come the day after, it comes the year after. The economic impact, the loss of jobs, the loss of business in the community–that is a very long-term effect.
There is a reason that opposition to tariffs bridges ideological divides. Both conservatives and liberals recognize the negative effects of these sorts of interventions into complex and interrelated markets. Unfortunately, we have a President whose policies (if they can be dignified by the term) do not rest on any theoretical or philosophical framework. Instead, he acts out of bile and petulance, complicated by utter ignorance of the matters he is disrupting.
The Engineering News Record says these tariffs pose a significant threat to the construction equipment industry’s prosperity. But the damage isn’t limited to the construction equipment industry. Tariffs pose a significant threat to job creation, consumption and general American prosperity–a threat that could have been avoided had we elected someone competent, or even someone who had–and heeded– competent advisors.
As the Senate “considers” the nomination of Brett Kavanaugh (note quotation marks, since support for this particular nominee is entirely partisan and no genuine consideration of his record is being allowed), much of the focus is on his presumed “pro life” approach to cases involving abortion.
Media framing of this issue highlights the most frustrating element of America’s “pro-choice” or “pro-life” public debate: the persistent refusal to confront the actual question, which is not whether a pregnant woman should continue or terminate her pregnancy.
The question is: who should have the power to make that decision?
As I have repeatedly argued, a government with the authority to forbid abortion is a government with the authority to require it. I usually point to China, where the government has done precisely that, but yesterday, my lawyer son pointed me to a case right here in the good old U.S. of A.– and a judicial decision by none other than Brett Kavanaugh.
In 2007, as an appellate judge in Washington, D.C., Kavanaugh was presented with an unusual case involving two women who had wanted to continue their pregnancies but had been forced to have abortions instead. They sued and Kavanaugh ruled against them, denying their claims that they had a right to be consulted about the decision to terminate their pregnancies.
Many Americans, probably most, understand the abortion debate to be about a struggle between the right of women to bodily autonomy and the “right to life” that anti-choicers claim embryos and fetuses have. In reality, as this case shows, the legal debate is really only about autonomy — so much so that an anti-choice judge like Kavanaugh ruled against women who wanted to “choose life,” as conservatives say, rather than allow them a greater measure of autonomy….
The case is a complex one, but the basic story involved three women who received care from the District of Columbia Mental Retardation and Developmental Disabilities Administration. All three women had intellectual disabilities and had been determined legally incompetent. One woman had an elective eye surgery and two had abortions, all chosen for them without any consideration of their wishes. The women argued that they had a right to have their wishes considered, but Kavanaugh ruled against them….
Legal standards regarding who is competent to make medical decisions for themselves are complicated and vary quite a bit from state to state. But Mathis said that even in states that have the fewest autonomy rights for people with certain disabilities, “most courts consider the person’s wishes,” even if they may ultimately rule against them. Kavanaugh, however, “just rejected the notion that there was any reason at all” to ask the women in that case what they wanted.
I emphasized that last line, because it illuminates what is truly at stake in these arguments. The question is not “to abort or not to abort.” The question is: who decides? The Bill of Rights is essentially a list of things that government does not get to decide–what you read, what you believe, whether or to whom you pray. Government officials don’t get to decide to search you (or your “papers or effects”) simply because you look shifty, or out of place, or because the officer “has a hunch.”
As snotty as the faux originalists are about the constitutional “penumbra” referenced in Roe, it is impossible to read through the Bill of Rights without recognizing that the entire document rests on the Founder’s concern to protect personal autonomy and to safeguard the right of individuals to make their own moral and political decisions–including what the Court has subsequently dubbed “intimate” decisions–free of government coercion or interference. The 9th and 10th Amendments make it clear that rights not “enumerated” (that is, not specifically listed) are not to be “denied or disparaged,” and that powers not specifically delegated to the central government are to be retained by the states and the people.
It is an act of intellectual dishonesty to dismiss the limits that the Bill of Rights places on government’s authority to control its citizens’ exercise of self-determination.
The question, I repeat, is not “what shall be decided?” but “who shall decide it?”
The question for Brett Kavanaugh is not whether he fancies himself “pro-life.” It is whether he is willing to acknowledge that the power of government to control women’s lives is limited by our constitution.
His jurisprudence makes it abundantly clear that he is not willing to make that acknowledgement. For that reason (and a number of other very troubling decisions he has handed down), he is unfit to sit on the nation’s highest court.
