Category Archives: Public Policy and Governance

Ah, Federalism…

One of this country’s ongoing struggles has been with the concept of federalism. Which rules should be nationally-imposed, and which should be left to those “laboratories of democracy” lionized by former Supreme Court Justice Brandeis?

Students who have been taught the actual history of the United States are aware of the multiple problems the country experienced under the Articles of Confederation; those problems were severe enough to prompt the replacement of the Articles with our current Constitution. In the (many) years since, however, we seem to have forgotten about the very negative consequences of government fragmentation.

Certainly, not all policy needs to be nationally uniform–there are plenty of areas where local control is appropriate. Questions about who is entitled to fundamental rights–and what those rights are–isn’t one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully.

The application of the Bill of Rights to state and local governments was meant to establish a floor–to ensure that a citizen moving from say, New York to Indiana, would not thereby experience a reduction of her fundamental rights as an American citizen. Justice Alito’s evisceration of the substantive due process clause is–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

Over the 200+ years of American statehood, the need to rationalize and unify large areas of the law gave rise to the work of the Uniform Law Commission. The Commission drafts and promotes state enactment of uniform laws in areas of state law where uniformity has been recognized to be both desirable and practical. Probably the best-known uniform law is the Uniform Commercial Code– a comprehensive set of laws governing all commercial transactions in the United States. It has national application, but it isn’t a federal law–it was uniformly adopted by each state’s legislature.

As the Commission’s website explains,

Uniformity of law is essential in this area for the interstate transaction of business. Because the UCC has been universally adopted, businesses can enter into contracts with confidence that the terms will be enforced in the same way by the courts of every American jurisdiction. The resulting certainty of business relationships allows businesses to grow and the American economy to thrive. For this reason, the UCC has been called “the backbone of American commerce.”

Obviously, commerce isn’t the only area where uniformity is “desirable and practical.” Federal action in the face of a pandemic would certainly seem to qualify, and before the incompetence and massive ignorance of the Trump administration, the federal government largely directed public health responses to threatened outbreaks.  Last March, Talking Points Memo addressed the disastrous results of Trump’s decision to leave COVID response to the states.

From the very start of the Pandemic in the first weeks of 2020 the Trump administration consistently sought to disclaim responsibility for things that would be genuinely difficult and could have challenging or bad outcomes. Push the tough tasks on to others and if it goes badly blame them. This frequently went to absurd lengths as when the White House insisted that states short on ventilators at the peak of the spring surge should have known to purchase them in advance of the pandemic. Over the course of the year Trump spun up an alternative reality in which the US was somehow still operating under the Articles of Confederation in which individual states were responsible for things that have been viewed as inherently federal responsibilities for decades or centuries.

It is not hyperbole to suggest that a more co-ordinated, federalized response wouldn’t just have saved lives, but in all likelihood would have cut short the period of most vulnerability.

No serious student of governance believes that, in a country as large and diverse as the United States, all decisions should be made at the federal level. The question with which we should be grappling is “which responsibilities are properly federal and which matters are properly left to state or local governments?” (Someone needs to tell Indiana Senator Braun that interracial marriage is not one of those…).

What laws need to be uniform if we are to be the United States of America, rather than a haphazard collection of Red and Blue fiefdoms?

I’m willing to leave zoning decisions up to local municipalities, and a substantial portion of criminal justice measures up to the states. When it comes to fundamental rights, not so much…

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Shoot-Out In The Fifth-Grade OK Corral

I’m hesitant to post about the most recent mass shooting–this one in a Texas elementary school. After all, what is there to say that hasn’t been said a million times before? As one commentator sadly noted, we’ll now hear Democrats talk about gun control and Republicans talk about mental illness.

Then, of course, there are Republicans like the odious Ted Cruz, who responded to an unspeakable tragedy in his state by asserting that the answer is to arm teachers. Not fewer guns, but more…and in the hands of people who, as a group, are least likely to want to own or brandish weapons.

A Rand report looked at the pros and cons of arming teachers, and a fair reading suggested that gun manufacturers would experience the only “pro”–more sales of weapons. (Just what we need….) The relevant paragraph:

Arguments against arming teachers and school resource officers highlight the elevated risk of accidents and negligent use of firearms as more adults in schools are armed. The Associated Press reported, for instance, that there were more than 30 incidents between 2014 and 2018 that involved a firearm brought to a school by a law enforcement officer or that involved a teacher improperly discharging or losing control of a weapon (Penzenstadler, Foley, and Fenn, 2017). This compares with around 20 active-shooter attacks at schools over a comparable period (Cai and Patel, 2019). When even trained police officers have been found to successfully hit their intended targets in just 18 percent of incidents involving an exchange of gunfire (Rostker et al., 2008), critics question whether teachers can be expected to effectively return fire without inadvertently injuring the children they mean to protect (Vince, Wolfe, and Field, 2015). Finally, if teachers are holding guns or engaged in gunfire, it may make the job of law enforcement officers more difficult and dangerous when they arrive at the scene. Officers could mistake the teacher for an active shooter or could themselves be inadvertently shot by the teacher.

If silly things like evidence mattered to today’s GOP, we have mountains of it. I’m not going to bore you with links to the years of studies demonstrating the idiocy of America’s current gun culture–a google search will bring up more research than most of us want or need to read. The Republican mantra, on this issue as with so many, many others is: “don’t confuse me with the facts,” so marshaling those facts and using them as the basis of an argument is doomed before it begins.

The United States is the only modern country where mass murders are a routine experience. (I once met with a delegation from an African country that had only recently emerged from a bloody civil conflict, and was embarrassed to learn that the members of that delegation feared more for their lives on American streets than they had during their own civil unrest. They’d watched the shoot-em-up movies glorifying violence, and read the media reports about our routine carnage…)

Like so many others, I am bone-tired of writing about this insanity. Back in 2017, in a more analytic, less furious mode, I wrote:

There are 300 million guns in this country. We aren’t going to get rid of them–couldn’t if we tried. Furthermore, the vast majority of gun owners are responsible people–hunters, sportsmen, people hoping to protect their homes. It’s true that a significant number of the 30,000 plus gun deaths in America each year involve those responsible owners: suicides, domestic abuse, children accidentally shooting themselves or others. These deaths are tragic, but I’d draw an analogy to highway deaths–we don’t ban or confiscate cars because they can be lethal.

If we continue with the car analogy, however, there are lessons to be learned. We don’t let just anyone drive; in order to get a license you must pass a test. Your license can be revoked if you repeatedly break the rules. Academics study traffic deaths and issue recommendations for making our roadways safer–and legislatures, by and large, take those recommendations seriously. With guns, Congress has prohibited government from funding research on gun violence, and state lawmakers are constantly attacking and rolling back even the most reasonable firearm regulations. Congress even refused to pass a measure that would have prohibited individuals on the no-fly list–-people with demonstrable connections to ISIS–from owning guns.

The history and interpretation of the Second Amendment has been twisted beyond recognition. If self-proclaimed “originalists” are really interested in the original meaning of the Amendment (I have my doubts), they might find this explanation by former Supreme Court Justice John Paul Stevens edifying.

I don’t know whether our legislative “gun nuts” are really as ideological and twisted as they seem (speaking of mental illness…), or whether–undoubtedly like Cruz–just deep in the pocket of the gun lobby.

And I don’t know how or where this ends.

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Rich And Poor

Arguments about poverty–suspicions about deservingness and general disdain for poor people–are nothing new. In the 15th Century, English Poor Laws forbid those who might be so inclined from “giving alms to the sturdy beggar.” Those attitudes came with the colonists to the New World, augmented by the Calvinist belief that accumulation of wealth signaled a “predestined” moral merit.

George W. Bush–the self-described “Compassionate Conservative”–pushed his “faith-based initiative” with language that equated poverty with an absence of “middle-class values,” implying that what poor people needed wasn’t better pay or more money, but more faith and better values.

America’s version of capitalism hasn’t helped. As Ezra Klein wrote last June in the New York Times, 

The American economy runs on poverty, or at least the constant threat of it. Americans like their goods cheap and their services plentiful and the two of them, together, require a sprawling labor force willing to work tough jobs at crummy wages. On the right, the barest glimmer of worker power is treated as a policy emergency, and the whip of poverty, not the lure of higher wages, is the appropriate response.

Klein was commenting on a proposal for a guaranteed income–not a Universal Basic Income, about which I’ve previously written, but an annual income that would phase out as recipients entered the middle class. Whatever the merits of either of those proposals, it behooves policy folks who care more about governing in the public interest than about keeping transgender kids out of the “wrong” bathroom to revisit some of the more destructive and erroneous beliefs about poor people.

As Klein quite accurately notes, opposition to proposals that would attack poverty by giving poor people money isn’t based on costs, but on benefits.

A policy like this would give workers the power to make real choices. They could say no to a job they didn’t want, or quit one that exploited them. They could, and would, demand better wages, or take time off to attend school or simply to rest. When we spoke, Hamilton tried to sell it to me as a truer form of capitalism. “People can’t reap the returns of their effort without some baseline level of resources,” he said. “If you lack basic necessities with regards to economic well-being, you have no agency. You’re dictated to by others or live in a miserable state.”

But those in the economy with the power to do the dictating profit from the desperation of low-wage workers. One man’s misery is another man’s quick and affordable at-home lunch delivery. “It is a fact that when we pay workers less and don’t have social insurance programs that, say, cover Uber and Lyft drivers, we are able to consume goods and services at lower prices,” Hilary Hoynes, an economist at the University of California at Berkeley, where she also co-directs the Opportunity Lab, told me.

This is the conversation about poverty that we don’t like to have: We discuss the poor as a pity or a blight, but we rarely admit that America’s high rate of poverty is a policy choice, and there are reasons we choose it over and over again. We typically frame those reasons as questions of fairness (“Why should I have to pay for someone else’s laziness?”) or tough-minded paternalism (“Work is good for people, and if they can live on the dole, they would”).

These objections echo the English Poor Laws. Disdainful, financially-comfortable people ignore what we all know–that this country is full of hardworking people who are kept poor by very low wages, bad luck, and policy choices that favor the disdainful.

 We know the absence of child care and affordable housing and decent public transit makes work, to say nothing of advancement, impossible for many. We know people lose jobs they value because of mental illness or physical disability or other factors beyond their control. We are not so naïve as to believe near-poverty and joblessness to be a comfortable condition or an attractive choice.

Most Americans don’t think of themselves as benefiting from the poverty of others–but of course, as Klein points out, we do. So we object to proposals to ameliorate poverty with lectures about

how the government is subsidizing indolence, paeans to the character-building qualities of low-wage labor, worries that the economy will be strangled by taxes or deficits, anger that Uber and Lyft rides have gotten more expensive, and sympathy for the struggling employers who can’t fill open roles rather than for the workers who had good reason not to take those jobs.

We haven’t come very far from the 15th Ceentury.

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Keeping Americans “Mad As Hell” 24/7

I don’t regularly read Mother Jones, so I had missed a profoundly important analysis by Kevin Drum that ran in that publication last October. I’m indebted to Gerald Stinson for sharing it.

Drum asks: why are Americans so angry? He notes that the anger is almost entirely political (most of us aren’t mad at our families, friends, plumbers)…

Research suggests that our “national temper tantrum” began in 2000, and Drum methodically investigates–and discards– the usual explanations for that vitriol. He demonstrates that Americans are no more addicted to conspiracy theories than we ever were, for example. (Hofstadter wrote about American paranoia back in 1964, after all.)

He also discounts the role of social media, while acknowledging that–like all new forms of communication–it has had a political effect. When we examine how social media affects what we learn about politics, he writes:

This obviously depends on how much political news we get from social media in the first place, which turns out to be surprisingly little—at least when it comes to actual articles or broadcast segments, not hot takes from your Uncle Bob.

And then there’s that pesky timeline: social media can’t explain something that started 20 years ago.

Drum also makes short shrift of the argument that we’re all mad because everything has gotten worse. It hasn’t, and he shares data showing that Americans’ opinions on virtually every aspect of our communal lives has remained constant–albeit with two very troubling exceptions. One is the rise of White grievance:

White respondents believe that anti-white bias has been steadily increasing. And the American National Election Studies, among other polls, have showed this belief in so-called reverse racism is overwhelmingly driven by white Republicans. This trend starts before 2000, but it’s growing and is an obvious candidate to explain rising white anger—as long as there’s something around to keep it front and center in the minds of white people.

The other is a precipitous collapse of trust in government.

If the “usual suspects” don’t explain our current fears, hatreds and political divisions, what does? Drum’s conclusion: Fox News.

When it debuted in 1996, Fox News was an afterthought in Republican politics. But after switching to a more hardline conservatism in the late ’90s it quickly attracted viewership from more than a third of all Republicans by the early 2000s. And as anyone who’s watched Fox knows, its fundamental message is rage at what liberals are doing to our country. Over the years the specific message has changed with the times—from terrorism to open borders to Benghazi to Christian cake bakers to critical race theory—but it’s always about what liberal politicians are doing to cripple America, usually with a large dose of thinly veiled racism to give it emotional heft.

As Drum notes, rage toward Democrats means more votes for Republicans. Creating that rage is what Fox does.

As far back as 2007 researchers learned that the mere presence of Fox News on a cable system increased Republican vote share by nearly 1 percent. A more recent study estimates that a minuscule 150 seconds per week of watching Fox News can increase the Republican vote share. In a study of real-life impact, researchers found that this means the mere existence of Fox News on a cable system induced somewhere between 3 and 8 percent of non-Republicans to vote for the Republican Party in the 2000 presidential election. A more recent study estimates that Fox News produced a Republican increase of 3.59 points in the 2004 share of the two-party presidential vote and 6.34 points in 2008. That’s impact.

As we saw earlier, the past couple of decades have seen a steady increase in the belief among white people—particularly Republicans—that anti-white bias is a serious problem. Fox News has stoked this fear almost since the beginning, culminating this year in Tucker’s full-throated embrace of the white supremacist “replacement theory” and the seemingly 24/7 campaign against critical race theory and its alleged impact on white schoolkids. This is certainly not all that Fox News does, but it’s a big part of its pitch, and it fits hand in glove with Trump’s appeal to white racism…

Thanks to Fox News, conservative trust in government is so low that Republican partisans can easily believe Democrats have cheated on a mass scale, and white evangelicals in particular are willing to fight with the spirit of someone literally facing Armageddon.

You really need to read the whole, lengthy analysis.

Drum concludes “It is Fox News that has torched the American political system over the past two decades, and it is Fox News that we have to continue to fight.”

But he doesn’t tell us how.

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Speaking Of Privacy…

I’ve never been particularly concerned about my data privacy–at the university, the tech support people drove me nuts with their log-in protocols and automatic encryption of “sensitive” emails. Like most Americans who pretty much live online, buy online and communicate online, I recognized that there is a tradeoff between convenience and some degree of exposure, and–again, like most Americans–it was a tradeoff I was (and still am) willing to make.

Government surveillance is another matter entirely.

Governing Magazine recently reported on activities being conducted–mostly surreptitiously–by ICE. Those activities are truly dystopian.

Immigration and Customs Enforcement has crafted a sophisticated surveillance dragnet designed to spy on most people living in the United States, without the need for warrants and many times circumventing state privacy laws, such as those in California, according to a two-year investigation released Tuesday by the Georgetown Law Center on Privacy & Technology.

Over the years, privacy law experts and civil rights activists and attorneys have accused ICE of overreach in its surveillance tactics directed at immigrants and Americans alike, but the Georgetown report paints a picture of an agency that has gone well beyond its immigration enforcement mandate, instead evolving into something of a broader domestic surveillance agency, according to the report, called “American Dragnet: Data-Driven Deportation in the 21st Century.”

The report outlines the extent into which ICE has gone in order to form a large-scale surveillance system that has reached into the lives into ordinary people living in the U.S. Skirting local laws intending to protect individuals’ privacy, the agency has turned to third-party outfits— utility companies, private databases and even the Department of Motor Vehicles in some states — to amass a trove of information from hundreds of thousands of Americans and immigrants to target people for deportation.

This surveillance network isn’t some penny-ante operation; the article says that ICE spent “an estimated $2.8 billion between 2008 and 2021 on new surveillance, data collection and data-sharing initiatives.

ICE was established after the Sept. 11 attacks, and given sweeping powers to fight terrorism and enforce immigration law. Since its formation, the article tells us that without much oversight, the agency has collected data on hundreds of millions of Americans. It has frequently been accused of crossing legal and ethical lines to “weave a vast surveillance system,” according to the Georgetown report.

“I was alarmed to discover that ICE has built up a sweeping surveillance infrastructure capable of tracking almost anyone, seemingly at any time. ICE has ramped up its surveillance capacities in near-complete secrecy and impunity, sidestepping limitations and flying under the radar of lawmakers,” said Nina Wang, policy associate at the Center on Privacy & Technology and a co-author of the study.

Anti-immigration Americans who might be tempted to shrug this off because it’s “only targeting illegal immigration” shouldn’t be sanguine. Thanks to the methods being used to collect the information, the agency has data on pretty much anyone who has ever applied for a driver’s license, driven on the nation’s roads, or contracted with their local utilities to get access to heat, water and/or electricity.

Among other findings, the report documents that ICE has drivers’ license data for 3 in 4 adults living in the U.S.; has scanned at least 1 in 3 of all adults’ driver’s licenses with face recognition technology; can track the movement of vehicles in cities that are home to nearly 3 in 4 adults; and can locate 3 in 4 adults through their utility records.

What was that famous quote from Martin Niemoller? “First they came for the socialists…”

The fact that one federal agency has clearly “gone rogue” would be less chilling if the United States wasn’t in the midst of a concerted effort by the Right to replace democratic norms with a Neo-fascist regime. The GOP has been transformed in to a White Nationalist cult that is all too ready to embrace Storm Trooper methodologies, and while its MAGA base represents a distinct minority of Americans, thanks to gerrymandering, the Electoral College and other antiquated electoral systems, it’s able to exercise far more power than its percentage of the vote would otherwise allow.

Worse still, we find ourselves in this position at a time when we no longer have a Supreme Court majority willing to protect settled precedents and  the rule of law.

If Donald Trump (or one of his clones) wins the Presidency in 2024, do you have any doubt that he would make use of the ICE surveillance data to stamp out dissent and punish his opponents?

Reading this report in the wake of the Buffalo massacre raised another chilling question: why hasn’t ICE used its data to fight domestic terrorism? How deeply are MAGA bigots already ensconced in this clandestine agency?

How far down the road to autocracy have we come?

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