Category Archives: Public Policy and Governance

Disagreeing With David French

Yesterday, I promised to discuss an issue on which I strongly disagree with David French. Chevron is that issue.

Allow me to explain.

The Supreme Court is currently hearing a case that’s likely to overturn or eviscerate something called the Chevron Doctrine. That doctrine requires courts to “defer” to an agency’s interpretation of an ambiguous statutory delegation.

For example, Congress might direct the EPA to achieve a certain clean air result, but since few Congressmen have the technical background to tell the EPA just how to achieve that result, experts at the EPA must determine what regulations are needed to reach that goal. The Chevron doctrine requires the courts to “defer” to that agency’s expert determination unless the court finds it unreasonable.

 French argues that overturning the doctrine would “rebalance” the division of authority between the branches of government. His argument centers on “democratic accountability” and the fact that Congress is broken.

Congress is not performing its constitutional tasks. It’s a broken institution that contains too few genuine lawmakers and far too many would-be activists and TV pundits. Time and again, it has proved incapable of compromise or of accomplishing even the most basic legislative tasks. It’s been 27 years since it even passed a budget on time. And that barely begins to capture the current level of dysfunction, with a razor-thin House Republican majority consistently held hostage by a mere handful of MAGA extremists.

As Congress has shirked its duties, presidents and the courts have filled the power vacuum. Presidents have used the power of their executive agencies to promulgate new regulations without congressional involvement. Executive agencies publish 3,000 to 4,500 new rules per year, and these regulations have a substantial impact on the American economy. Compounding the problem, courts have ratified that presidential power grab by enacting a series of judge-made rules that require federal courts to defer to the decisions of executive agencies.

The answer to “rebalancing” the power dynamic between Congress and the Executive branch is to fix Congress. It isn’t to require federal judges to substitute their judgments for those of experts on increasingly technical issues. 

The current doctrine provides an adequate remedy for instances where agencies have overstepped or acted irresponsibly–“unreasonably.” Jettisoning the doctrine will truly open those storied “floodgates of litigation,” allowing monied business interests to tie up proposed regulations for years and hampering agency operations with overly intrusive reviews.

 Chevron deference has served the country well. In his Substack letter, legal scholar Steven Vladick addressed French’s “democratic accountability” argument head on.

A common response to that objection is that a world without Chevron is a world in which those interpretive questions won’t be answered by Congress; they’ll be answered by even less democratically accountable federal judges—who are the real “victims” of Chevron deference. After all, if a statute is ambiguous, the real question Chevron asks is whether the agency or the reviewing court is better situated to resolve the ambiguity. To be sure, some of Chevron’s critics argue that this is a false dichotomy—that the real point is that Congress ought to be forced to be clear in all of its delegations to agencies.

There are somewhere north of 430 federal agencies; even if Congress devoted one calendar day each year to one agency, it wouldn’t get to all of them. Thus, the debate in the typical case is usually going to reduce to a choice between leaving the power to resolve the interpretive dispute to the agency’s reasonable discretion or to the courts. Whatever the pros and cons of the two sides in that debate, it’s clear that the case for the courts in that situation is not about increasing democratic accountability.

Vladick also points out that–with respect to democratic accountability– we vote for the President, who can directly control his subordinates. (Although he does’t mention it, no one votes for federal judges.)

French admits that agencies regulate complex businesses and industries, and that they “possess a level of expertise that’s clearly beyond the capabilities of Congress.” He objects to Chevron’s required deference because, in his opinion, it gives the Executive branch too much power. 

It’s an abstract argument for a very non-abstract problem.

Let’s get real: A rule requiring judges to “defer” (not “buckle”) to agency decisions when those regulations pass a “reasonableness” test is absolutely necessary in a world where government agencies deal with increasingly complex, highly technical issues that judges simply lack the expertise to decide.

Experts may get things wrong, but I don’t want Aileen Cannon deciding how many parts of arsenic per million should be allowed in the nation’s waterways, or Matthew J. Kacsmaryk  invalidating more FDA regulations.

In a war on knowledge, we’ll all suffer.

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A Speech Worth Revisiting

It’s probably a sign of just how suspicious I am these days of quotations on the Internet, but when I saw a post on Daily Kos that purported to be a lengthy portion of a speech by Ulysses Grant, I checked with two separate academic sites to confirm its accuracy.

It turned out it was accurate–and prescient.

Grant might have been commenting on our current national woes when he spoke in Des Moines in 1875.

I do not bring into this assemblage politics, certainly not partisan politics, but it is a fair subject for soldiers in their deliberations to consider what may be necessary to secure the prize for which they battled in a republic like ours. Where the citizen is sovereign and the official the servant, where no power is exercised except by the will of the people, it is important that the sovereign — the people — should possess intelligence.

The free school is the promoter of that intelligence which is to preserve us as a free nation. If we are to have another contest in the near future of our national existence, I predict that the dividing line will not be Mason and Dixon’s, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other.

Now in this centennial year of our national existence, I believe it a good time to begin the work of strengthening the foundation of the house commenced by our patriotic forefathers one hundred years ago, at Concord and Lexington. Let us all labor to add all needful guarantees for the more perfect security of free thought, free speech, and free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color, or religion.

Encourage free schools, and resolve that not one dollar of money appropriated to their support, no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that the State or Nation, or both combined, shall furnish to every child growing up in the land, the means of acquiring a good common-school education, unmixed with sectarian, pagan, or atheistic tenets. Leave the matter of religion to the family altar, the church, and the private school supported entirely by private contributions. Keep the church and state forever separate. With these safeguards, I believe the battles which created the Army of the Tennessee will not have been fought in vain.

Grant eloquently addressed what I have called “civic literacy”–the need of a “sovereign people” to be both patriotic and informed. As is clear from the context of his words, Grant’s definition of “patriotic” is very different from the jingoism displayed by today’s MAGA Republicans. True patriotism requires an allegiance to the principles of America’s Constitution and Bill of Rights, an allegiance based upon a proper understanding of those documents and the philosophy that animated them.

Grant was very clearly aware that such allegiance and understanding comes from instruction “unmixed with sectarian, pagan or atheistic tenets”–that such religious precepts must be left to the family, the church and private schools “supported entirely by private contributions.”

An eon ago–in 1980–I was a Republican candidate for Congress. I even won a Republican primary.  Despite the fact that I was pro-choice and pro-gay rights, among other things, I was considered–and considered myself– to be a conservative. Then and now, I believe the proper understanding of that label includes a commitment to conserve the values that Grant enumerated in that long-ago speech.

I continue to believe that labeling today’s GOP “conservative” is a travesty that works to normalize what is a truly frightening and very unconservative approach to politics and American governance.

True conservatism requires a commitment to uphold the individual liberties protected by the Bill of Rights: freedom of speech and press, Separation of Church and State, freedom of conscience and personal autonomy, among others.

I don’t know the proper label for the MAGA fanatics who have taken over what was once my political party. Culture warriors? White Christian Nationalists? Fascists? Today’s GOP is probably a blend of all those, together with a heavy sprinkling of people who are too civically-illiterate to understand how very unconservative–and dangerous– their party has become.

Grant eloquently defended the extension of “equal rights and privileges to all men, irrespective of nationality, color, or religion.” Today’s Republicans would call him “woke,” and angrily reject him (along with Lincoln) as “anti-American.”

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A Message From GIMA

The Greater Indianapolis Multifaith Alliance–abbreviated to GIMA–is a local organization of   faith leaders from a wide variety of religious traditions. Those leaders have come together to collaborate on civic projects that serve the common good of greater Indianapolis–unlike the Christian Nationalists and other theocrats I so often criticize on this site, they are intent on making our city and state a fairer and more equitable place.

The organization is currently focusing on the city’s lack of affordable housing and the crisis in evictions, and it has produced a short video that focuses on–surprise!–the failure of the Indiana legislature to enact enforceable minimal protections for tenants whose landlords fail to provide even minimally-habitable properties, or refuse to make critically-needed repairs.(In all fairness, those abusive landlords represent a relatively small percentage of all landlords in the city, and are disproportionately out-of-state investors. But they cause a lot of misery.)

GIMA focused its efforts on this issue because of what it describes as the “current landscape” of the problem.  Its website offers data that confirms the severity and extent of the barriers facing tenants who lack financial and legal means to hold those landlords accountable.

Housing instability, particularly evictions, is receiving its due attention in this critical moment because it’s nearing a full-blown crisis. According to Eviction Lab, Indianapolis is second only to New York in total evictions and Indiana is number one in statewide eviction filings since 2020. We recognize that there are several excellent non-profit organizations that provide direct services, as well as coalitions that amplify the voices and needs of those grappling with the impact of evictions and homelessness through advocacy. We also know that many congregations periodically collect food and clothing – and even temporarily house the homeless.

Those efforts are meaningful, but woefully inadequate to the scope of the problem.

Rather than offering my “take” on the issue, I encourage you to click through and watch the very short (just over 6 minutes) video.

And if you live in Indiana, call your State Senator and/or Representative and ask them to support SB 277–Senator Walker’s tenant repair fund bill.

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Old-Time Republicanism

Here in Indiana, Eric Holcomb is completing his second and last term as Governor. He recently delivered his final “State of the State” address, and it was brief, filled with (moderately boring) policy successes and remaining priorities–and touchingly reminiscent of what Republicanism used to sound like.

As John Krull wrote at The Statehouse File, Holcomb’s speech had a perfunctory feel to it.

One of the governor’s strengths—perhaps his greatest one as a leader—has been his ability to recognize and accept reality.

He first was elected to office in 2016, the same year that Donald Trump captured the White House.

During the intervening years, America has been a noisy, screaming place, filled with all the ceaseless screaming tumult Trump has produced as he has strutted upon the national stage.

Indiana, by contrast, has been an oasis of relative quiet.

Some of that is because Eric Holcomb is secure and comfortable enough with himself not to require everyone to pay attention to him every day and all the time. He’s willing to let whole weeks go by without asking people to watch him, listen to him or even think about him.

In other words, he’s a functioning adult, not an overgrown child—unlike many of our elected officials these days.

Holcomb has been an old-fashioned Republican, increasingly out of place in a party of rabid ideologues and immature posturers who haven’t the slightest interest in the process of actually governing.

We citizens tend to think of American politics as a contest between conservatives and liberals. That frame has always been inadequate and over-broad, but today it is simply inaccurate. MAGA Republicans are not just somewhat different versions of Eric Holcomb, and they are definitely not conservative.

 Persuasion recently considered  conservatism vs. GOP-ism, in an essay called “The Path Not Taken.”

The author traced what he called the two “strands” of conservatism, one of which he dubbed National Conservatism. It is the version “championed by former president Donald Trump and Florida Governor Ron DeSantis,” and it has very little in common with American conservatism. Rather than the small-government agenda of the former Republican Party, this version “seeks to use the power of the state to challenge cultural progressivism—as evidenced by Trump’s severe immigration policies and DeSantis’ top down remaking of Florida’s university system.”

In short, this MAGA version bears little or no resemblance to the Republican platforms that used to define conservatism.  

National Conservatives have shown themselves to be at best hopelessly naïve about the foundations of human flourishing, and at worst incapable of understanding that some people may wish to live a life different from their own. When not pressuring mothers into staying home from work with their kids, they are defending foreign despots for preserving their national identity at the cost of basic civil liberties. To allow National Conservatives free rein in the United States would be to permit the very worst elements of the right to control the levers of our government. In the process it would undercut genuine virtue and allow bureaucratic tyranny to grow unabated.

When I joined the Republican Party, “conservative” meant limiting the power of the state. It meant endorsing the right of individuals to forge their own life paths without government interference– at least, so long as they weren’t harming the person or property of others, or denying others the right to do likewise.

The “National Conservatism” described above has absolutely nothing in common with that bygone conservatism. It is overwhelmingly autocratic, and– as embraced by MAGA Republicans– increasingly fascist. Calling it “conservative” is both misleading and inaccurate.

A couple of weeks ago, Liz Cheney was on The View, and–as the saying goes–she “told it like it is.”

 “There are some conservatives who are trying to make this claim that somehow [President] Biden is a bigger risk than Trump,” she said. “My view is I disagree with a lot of Joe Biden’s policies. We can survive bad policies. We cannot survive torching the Constitution.”

Precisely.

I disagree with Cheney on almost all policy matters, but I admire her clarity and honesty about the existential challenge America is currently facing–and her recognition that it’s a challenge going well beyond policy differences.

Back in the day, the term “Conservative” wasn’t used to describe someone who wanted  government to dictate what citizens should believe and how they would be permitted to act. (It was interesting–and telling–that Eric Holcomb’s recitations of what he considered  to be GOP successes in his State of the State address omitted any mention of the draconian ban on abortion passed by the MAGA Republicans of the Indiana legislature.) 

Today’s MAGA Republicans are many things. “Conservative” is not one of them.

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Braun, Banks And ALEC

A reader has provided me with a copy of a letter sent by sitting Senators and Congresspersons–all Republican, so far as I could tell– to ALEC. ALEC stands for American Legislative Exchange Council. Among the signatories of that missive were Indiana culture warriors/Christian Nationalists, Mike Braun and Jim Banks.

The letter read in its entirety as follows:

Dear Founders, Leadership, Members, and Employees of the American Legislative Exchange Council,

We write to express our sincere congratulations as we commemorate the 50th anniversary of the American Legislative Exchange Council (ALEC). Since its inception in 1973, ALEC has remained a stalwart defender of limited government, free markets and a strong federalist system.

During its 50 years, ALEC has grown to become America’s largest voluntary membership organization of state lawmakers. Today, ALEC members represent more than 60 million Americans and provide jobs to more than 30 million people in the United States.

A true laboratory of democracy, ALEC enables lawmakers to share ideas and experiences with their peers from across the states and develops the most trusted policy solutions to the diverse challenges facing our communities.

We know that many of the critical policy questions of our time will be decided in the states: expanding educational opportunities for our children, unleashing principled entrepreneurship, protecting taxpayers, and lifting people out of poverty. As Members of Congress, we look to the states to inform our policy decisions. ALEC and its members provide us with valuable research and feedback which helps us build on previous successes or avoid unnecessary consequences.

Nearly 100 Members of Congress are ALEC Alumni, and they bring to Washington, DC the collaborative lessons they learned in their state legislatures. Noting that ALEC members adhere to the motto, “limited government, free markets and federalism,” ALEC Alumni in Congress work together to help make Washington more effective and accountable to the American people.

Finally, as we work to reduce federal regulations and interference in Americans’ everyday lives, we can confidently cede statutory power to the jurisdiction of the states, knowing ALEC members stand at the ready to lead the charge. We celebrate the generations of experience and success ALEC and its members have contributed at all levels of government, and we look forward to another 50 years of partnership in providing policy solutions for all Americans.

Here’s what Common Cause says about ALEC and those “trusted policy solutions:”

American Legislative Exchange Council (ALEC) is a corporate lobbying group that brings together corporate lobbyists and politicians to draft and vote — as equals and behind closed doors — on “model bills” that often benefit the corporations’ bottom line. These model bills, drafted without public input, are then introduced in state legislatures across the country, usually with ALEC’s involvement concealed. ALEC and ALEC-member corporations often pay for legislators’ travel expenses to go to ALEC conferences; when ALEC or the corporations are not paying for these so-called “scholarships,” the expense is often passed on to the taxpayers. ALEC lobbies on a variety  of issues, including taxes and budgets, climate change and the environment, workers’ rights and collective bargaining, healthcare, telecommunications policy, election laws, and education.

Common Cause has filed a “whistleblower” complaint against ALEC with the IRS, and provided evidence that the group has violated its tax-exempt status by operating as a lobby while claiming to be a charity.  (ALEC’s purported “charitable” status allows its corporate supporters to take the millions spent each year to support ALEC’s lobbying as tax deductions–meaning that we taxpayers are subsidizing that lobbying.)

After a raft of very unflattering stories about the organization emerged in 2011, a number of major companies left ALEC. Among those who remain are Altria, Koch Industries, UPS, FedEx, Pfizer, Duke Energy, Charter Communications, Comcast, and Anheuser-Busch.

I have written previously about ALEC–especially about its “leadership role” in gerrymandering, and in assisting the efforts of White Supremacists.The latter post quoted an article from The Guardian about a report by the Center for Constitutional Rights (CCR) and other civic organizations, charging ALEC with propagating White Supremacy.

In one of the sharpest criticisms yet leveled at the controversial “bill mill”, the authors warn that “conservative and corporate interests have captured our political process to harness profit, further entrench white supremacy in the law, and target the safety, human rights and self-governance of marginalized communities”

ALEC’s influence is sickening–but it shouldn’t be surprising. Braun and Banks–both endorsed by Trump–are full-throated devotees of and advocates for ALEC’s agenda.

Voters need to see to it that both of them are retired from public office in November.

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