Public Policy and Governance – Page 65

Republicans Are Coming For Your Birth Control

In the wake of Dobbs, spurred by a clear threat best articulated in Clarence Thomas’ concurring opinion, the U.S. House of Representatives has passed a bill that would guarantee continued access to contraception.

Actually, that sentence is somewhat inaccurate: the Democrats in the House passed the measure; they were able to garner exactly eight Republican votes.

Think about that.

The measure passed 228 to 195, meaning that almost all Republicans refused to protect an unrestricted right to the purchase and use of contraception. Those eight votes represented only slightly more Republican support than two bills that the House passed the prior week, which would have guaranteed access to abortion. Almost all Republicans united in opposition to that measure.

Worse still, the linked article from the Times reports that the contraceptive bill is “almost certain to fail in the evenly divided Senate, where most Republicans are also likely to be opposed.”

Again–think about that. Today’s GOP wants government to be able to control one of the most intimate decisions citizens can make–a decision that is fundamentally private, a decision that is absolutely none of government’s business

“An extreme G.O.P., an extreme Supreme Court, they want to take away your freedom and your control over your own lives,” said Representative Angie Craig, Democrat of Minnesota. “We are in an absurd time.”

She said before the vote that “quite frankly, I’m appalled that we have to vote on this damn bill at all. This is not an extremist issue. This is an extremist G.O.P.”..

Half of the eight Republicans who broke with their party to support the measure are retiring from Congress, including Representatives Anthony Gonzalez of Ohio, John Katko of New York, Adam Kinzinger of Illinois and Fred Upton of Michigan. The remainder — Representatives Liz Cheney of Wyoming, Brian Fitzpatrick of Pennsylvania, Nancy Mace of South Carolina and María Elvira Salazar of Florida — have sought to appeal to moderates and independent voters to bolster their re-election bids.

In Griswold v. Connecticut–a 1965 case–William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.” The majority found a right to privacy–the doctrine of substantive due process that was explicitly undermined in Dobbs–in the language of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment.

Wherever it resided–in a “penumbra” or the 14th Amendment–they agreed on its presence and importance.

The bottom line–a line virtually all Americans have come to rely upon–is that there is a limit to decisions that government may legitimately make. The very language of that libertarian premise I often quote indicates where that line is to be drawn: We the People have the right to live our lives in accordance with our own moral, ethical and religious beliefs, free of government restrictions, so long as we are not thereby harming the person or property of others, and so long as we are willing to grant an equal right to others.

Government, in other words, has the right–indeed, the obligation–to intervene when our behaviors are harming people who haven’t consented to that harm. Government must leave us alone–in Justice Brandeis felicitous formulation–otherwise. In my far less felicitous framing, the question is: who decides? If my beliefs or behaviors aren’t hurting anyone else, the decision must rest with me.

There can obviously be debates about the nature of harm. (Does a refusal to wear a seatbelt threaten others and justify seatbelt laws? how?) But that isn’t what today’s social issue debates are about. Today’s GOP is a White Nationalist Christian cult, intent upon breaching any right to self-determination that is inconsistent with its twisted theology–a theology not shared–indeed,rebutted– by many genuine Christians.

To the Americans who have relied on their right to direct their own lives for the past fifty years–who have pooh-poohed warnings about the Christian Taliban, confident that their right to self-determination was secure–Congress has sent a message. It can happen here.

In fact, it is happening. Right now.

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Sometimes, There Really Are Conspiracies

Or at least, co-ordinated efforts that look pretty conspiratorial.

At first glance, the co-ordinated effort to hobble government efforts to provide for the “general welfare”–to work on behalf of the common good–would seem to have little or nothing to do with a widely reported incident at a Wisconsin Walgreens. A married couple on vacation realized that the wife had left her birth control at home, so she went into the drugstore, picked a box of condoms from the shelf, and took them to the register. A pompous little prick at the register refused to ring them up, citing his “faith.”

As a contributor to Daily Kos noted,

There’s no law in America against being an ass, so this Walgreens clerk was entirely within his rights to behave like one. But, because of five Republicans on the Supreme Court, it now is problematic — and soon could be against the law nationwide, if Clarence Thomas gets his way — for Walgreens to fire him for “exercising his faith” when working in a drugstore.

The vast majority of Americans, opinion research shows, think a situation like this is absurd. As Jennifer Brooks notes in an article about the Pentz’s experience for the Minneapolis Star-Tribune: “When the Pew Research Center surveyed American attitudes about birth control, just 4% viewed contraception as morally wrong.

The writer then connected this exhibition of religious nuttery to the broader–and far more concerning–longterm effort to neuter the authority of government.

The rightwing billionaires and the corporations and foundations aligned with them knew back in 1971 — when Lewis Powell laid out their strategy in his infamous Powell Memo the year before Nixon put him on the Supreme Court — that most Americans wouldn’t happily vote to lower billionaires’ taxes, end unions and regulation of gun manufacturers, or increase the amount of refinery poisons in our air.

So the strategy they came up with to capture control of our government was pretty straightforward:

Convince Americans that taxes aren’t “the cost of a civil society” but, instead, a “burden” that they were unfairly bearing.
Convince Americans that regulations that protect consumers and the environment are also “burdens” from an out-of-control “nanny state.”
Convince Americans that unions aren’t “democracy in the workplace” that protect workers’ rights but, instead, an elaborate scam to raid workers’ paychecks to the benefit of “corrupt union bosses.”

As he writes (and many others have documented) they spent five decades and billions of dollars to subsidize think tanks and policy groups at both the federal and state level. As a result, there’s now an extensive network of them reaching from coast-to-coast, all turning out copious policy papers and press releases.

They also sponsored rightwing talk radio– and Australian billionaire Rupert Murdoch rolled out Fox “News” to compliment the propaganda campaign. Social media bots and trolls came later, as did literally thousands of websites pretending to be newspapers.

They hooked up with the NRA, which helped sponsor the Reagan Revolution and was richly rewarded with laws that forbade the federal government from compiling gun death statistics and gave complete immunity from lawsuits to weapons manufacturers and sellers for the damage their products cause (the only industry in America that enjoys such immunity).

And they finally got a lot of Americans to go along with their plan, because they’d added in a religious “secret sauce.”

As the writer tells it, Jerry Falwell was a critical part of that “secret sauce.”

Falwell was an inveterate grifter, hustling Jesus to build a multi-million-dollar empire while ignoring Jesus’ teachings about humility, poverty, and the need to care for others. A new, muscular Jesus — a Jesus who endorsed assault weapons and private jets for preachers — came to dominate much of America’s protestant Christianity.

This Jesus wanted you to get rich — riches are a sign of God’s blessing — and in the 1980s, the “prosperity gospel” was all over TV and in megachurches.

The televangelists became multimillionaires, churches openly defied IRS regulations and preached politics from the pulpit, and millions of mostly non-political church-goers were suddenly evangelists not just for Jesus but also for the Republican Party…

To keep the rubes coming to the churches where they’d hear that GOP message, Republicans on the Supreme Court had to throw them the occasional bone. Giving bakers the right to tell gay people wanting a wedding cake to screw off was one of them, setting up the “religious right” of pharmacists to refuse to sell condoms.

I’m dubious that these efforts were as intentional and strategic as the author clearly believes, but the degree of coordination is really irrelevant. The results–the major problems America now faces– are indisputable.

And as he says, they were all made possible by an unholy alliance of church and state that the Founders warned us against.

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Where Do We Place The Lever?

I was going through some files recently, and came across a Governing essay from last September that echoed my own growing despair over what the author called “the situation.” He’d been invited to a conference that was ostensibly about the future of the Badlands, but during the telephoned invitation, it was suggested that they would also discuss “the situation.”

That phrase triggered his inquiry.

For the rest of the evening, I tried to determine what might be meant by “the situation.” I know, I could simply have picked up the phone and asked a few questions, but I thought it was an interesting exercise. It’s easy enough to get started. America seems to be disintegrating. Our national political system seems to be paralyzed. There is a great deal of anger and distrust awash in the land. Each of the two main tribes (the Right and the Left) declares that the other one is a clear and present danger to the future of civilization. Some tens of millions of people continue to argue, and perhaps believe, that the 2020 election was stolen. We cannot even agree on basic public health measures in the face of the worst global pandemic in more than 100 years.

If–as he assumed–these and other crises we face are what was meant by “the situation,” what could be accomplished in that discussion? As he noted, it’s a lot easier to diagnose “the situation” than to identify a prescription.

More civility? A great and inspiring leader with the idealism of Barack Obama and the oomph of Theodore Roosevelt? Some self-restraint by the 24-7 cable media? A return to the Fairness Doctrine? I can hear one participant saying we’d be just fine if we could only get back to the intentions of the Founding Fathers; and another urging the progressives to terminate the filibuster and pass rafts of reform legislation along the lines of the New Deal and Lyndon Johnson’s Great Society. One person would argue that we must abolish the Electoral College, another that we should pack the Supreme Court.

The fact that his imagined conversation was self-evidently inadequate to the challenge mirrors much of the conversation on this blog: there’s general agreement that America’s society is in crisis and its governance is in thrall to a minority composed of frightened, uninformed and frequently deranged citizens–but there is no such agreement when it comes to the really important question: what must we do?

The author illustrated the dilemma by quoting Archimedes, who said, “show me where to put the lever and I will move the world.” The question, as he noted, is: where do we put the lever?

After citing research showing that that 43 million Americans (about one in nine) are illiterate, he makes a point that I endlessly repeat:

If American citizens don’t know the difference between an impeachment and an impeachment trial, if they don’t know the difference between an emolument and an embolism, if they don’t understand the constitutional function of the Supreme Court, if they think Obamacare is socialism but Medicare a sacred American right, how can we expect to keep the republic alive? In a letter to Charles Yancey in 1816, Thomas Jefferson wrote, “if a nation expects to be ignorant & free, in a state of civilization, it expects what never was & never will be.”

Ignorance, of course, isn’t the only threat to democracy and stability. The vast and growing divide between the rich and the rest is a clear danger. The author writes that the inability of our government to address climate change is another–and he wrote this essay before the Supreme Court further hobbled government’s ability to do so. He acknowledges the ongoing legacy of slavery, and the racism that is an all-too-obvious motivation of the MAGA crowds. He gives a nod to Eisenhower”s warning about the dangers of an unrestrained military-industrial complex.

Unsurprisingly, the author of the essay doesn’t answer his own question. Instead, he argues (feebly) for a “spiritual renaissance.” I think the reason I haven’t previously written about this particular essay is my instinctive aversion to that cop-out. This often-encountered longing for a “renaissance” rests on a very dubious belief that Americans were once more “spiritual”–a belief uncomfortably close to the “we were once a Christian nation” fantasy. In any event, he is silent on the rather significant question of how the desired increase in spirituality is to be obtained.

So here we are–like doctors who can describe the disease but have no magic potion with which to treat it. We’re left with what is, admittedly, a very good question: where do we put Archimedes’ lever?

It’s a question that suggests another: are our problems far too numerous for a lever even to work?

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The Trump Court

I’ve been on the email list of the Brookings Institution for a number of years. It was–and is– an excellent source of thoughtful, balanced policy analyses, and it provided me with valuable background for my classes when I was teaching Law and Policy.

Over the years, I’ve become accustomed to the language and style of Brookings publications–very consistent with that of academic discourse and a variety of other highly credible, scholarly resources. (Not like the snark you often get here.) So I was bemused–to put it mildly– by the opening paragraphs of a recent essay.

“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected.” With those chilling words an illegitimately obtained Supreme Court majority tore up the lives of Americans & the Constitution in the Dobbs opinion authored by Justice Samuel Alito. The votes for this opinion were only available because Merrick Garland was wrongly blockaded at the end of the Obama administration and Amy Coney Barrett hypocritically jammed through at the end of the Trump one.

The Alito opinion comes in the midst of congressional hearings exposing the sickness of Trump’s style of governance—Trumpery, as we term it in a new book. The Dobbs opinion also exemplifies Trumpery, and its features provide a useful framework for understanding just how bad the opinion is. The Court should be known from here on out as the Trump Court.

Perhaps the single most defining characteristic of Trumpery is its disdain for the rule of law. The Alito opinion in the Dobbs case has that in spades. A central tenet of Supreme Court jurisprudence is stare decisis, the idea that once the Supreme Court has ruled on something, it is settled law and is entitled to permanence, even if later courts may disagree with it. That is particularly true where you have a decades long established precedent like Roe.

It is certainly true that past Courts have overruled settled precedents when it has become blindingly obvious that they are unjust and/or inconsistent with contemporary science and mores–Plessy v. Ferguson and Bowers v. Hardwick come to mind. But the thrust of the quoted paragraph is accurate; until the elevation of theocratic jurists intent upon the destruction of jurisprudence equating liberty with a significant degree of personal autonomy, precedents were accorded a high level of deference.

The essay proceeded to compare the current iteration of the Supreme Court to Trump’s incessant assaults on democratic norms– assaults that the January 6th Committee hearings are meticulously documenting.

As we are being painfully reminded in the Jan. 6 hearings, that assault over time undermined and weakened the executive branch and Americans’ faith in it. Alito and the five justices who joined with him are sending the Supreme Court down that same slippery slope.

The authors make a point that I have made repeatedly in the wake of this deeply dishonest decision–it didn’t just take aim at abortion. It was a point that Justice Thomas acknowledged in his concurrence:

“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Americans’ right to contraception, to make consensual choices in the bedroom and to same-sex marriage are all up for grabs. How long before states are also free to re-criminalize premarital sex and interracial relationships?

There are other parallels: Trump was shameless, and the authors point out that–like Trump–Alito displays absolutely no embarrassment about the rampant dishonesty of his opinion, dishonesty that was necessary in order to reach a result he personally favored. Nor does this Court care about the social consequences of a predictably divisive opinion. Alito wrote “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work.”

Of course, concern about public reaction is one reason for the doctrine of stare decisis, which aims to avoid abruptly upsetting long-settled rules and expectations. Intensifying social divisions was also a Trumpian trademark, and as the authors note, “this opinion smacks of a similar approach.”

It’s hard to disagree with the authors’ conclusion that this decision–one of this term’s string of shocking and damaging departures from settled jurisprudence– will decimate what is left of the legitimacy of the Supreme Court.

Although it was news to Alabama’s current Senator, the U.S. has three branches of government. Unfortunately, none are currently functional.

We have a gridlocked Congress, immobilized by lawmakers putting fealty to party over loyalty to country; an Executive whose agenda is obstructed by that Congress; and now, a rogue Court disdained and distrusted by a majority of citizens.

That’s a description of a failed state.

No wonder the language employed by Brookings these days is less restrained.

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The War On Government

One of the consequences of the low civic literacy I keep complaining about is a widespread lack of understanding of the importance of systemic problems. Our current media environment doesn’t help.

Let me give a few examples to explain what I mean.

The media covers our election “horse races,” but largely ignores the systemic gerrymandering that precedes individual races and pre-ordains too many of their outcomes. The result is that the “win/lose” results don’t really reflect majority voter preferences, but that is rarely the focus of discussion.

The media routinely reports the results of U.S. Senate action, but has only begun to recognize the pernicious effects of the filibuster, which has changed that chamber from one operating on majority rule to a broken system that now requires a super-majority to pass even the most trivial laws.

Americans remain largely unaware of the undemocratic effects of the Electoral College –how that outdated system has operated to install as President candidates who lost the popular vote, and how it threatens to do so again.

As America’s governance has become ever more dysfunctional, recognition of those particular systemic flaws has grown, but–as we can see from reactions to the recent stream of radical Supreme Court decisions–while there is anger at the immediate and visible results, there is little recognition of the truly horrific systemic effects of those decisions.

The overruling of Roe is just one example. As I’ve written before, the Court achieved that result by undermining an important doctrine–a doctrine that supports a number of other important liberties. The damage done goes far, far beyond the “headline.”

Similarly, the media has largely overlooked the truly breathtaking assault on American government represented by the decision in West Virginia v. EPA. That decision limited the extent to which Congress can delegate regulatory decisions, and–together with other, less publicized cases–amounts to a war on government’s ability to protect the “general welfare.”

As Sam Baker recently wrote in Axios, the Court is moving to restrict the authority of regulatory agencies in the executive branch.

These cases may not always feel like blockbusters in isolation, but they can constrain federal power in ways that are almost impossible to reverse, with dramatic implications that cut across multiple policy areas.

Driving the news: Just in the past few months, the court …

Prevented the CDC from enforcing an eviction moratorium due to COVID.
Prevented OSHA from enforcing a vaccine mandate in workplaces.
Prevented the EPA from carrying out some of its most aggressive proposed limits on greenhouse gasses.
Some of those issues are bigger than others, but each of those cases raised questions about overarching legal principles related to executive-branch authority.

Taken together, it’s clear which direction things are headed — the federal government is going to be able to do a lot less than it has been able to do in the past.

At least three of the radical Justices are hoping to reinstate something called the “nondelegation doctrine” — a theory that Congress cannot delegate to agencies of the executive branch any of the powers the Constitution gives to Congress.

It’s not carrying the day right now, but at least three justices seem to want to bring it back. When the court struck down OSHA’s vaccine mandate, Justice Neil Gorsuch — joined by Justices Clarence Thomas and Samuel Alito — said that even if Congress had expressly given OSHA the power to impose a vaccine mandate, that likely would have been unconstitutional.

In the 1800s, this debate was reasonable. Back then, We The People elected Congressmen (and they were CongressMEN) to make legal and regulatory decisions that were well within the competence of most lawmakers. In the 21st Century, life is considerably more complicated and a great many of those decisions require a degree of scientific, legal and/or medical expertise that we cannot reasonably expect from even our non-crazy lawmakers.

Forbidding Congress from delegating considerable authority over highly technical issues is a way of strangling the ability of government to act.

We can all point to regulatory decisions we dislike. We can argue that this or that rule exceeds the agency’s grant of authority. But removing that authority–telling agency personnel that they cannot regulate environmental hazards, or require technical food and drug safety measures, or mandate certain responses to diseases and pandemics, etcetera, etcetera–is tantamount to telling the executive branch its authority doesn’t reach far beyond coining money and declaring war.

Focusing only on the “headline” results of these decisions–appalling as those obvious results are–blinds us to their systemic implications. This Court is coming for the underpinnings of federal governance.

Of course, if climate change destroys the planet, it may not matter…..

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