Complicated–And Consequential

The virtue of America’s current battle over a woman’s right to control her own body is its clarity. Either a woman has the right to determine whether she will give birth, or the government has the right to force her to do so, irrespective of the consequences for her health and well-being.

It’s either/or. 

Other threats we face are much more subtle and complicated. Policy changes that may seem innocuous or even reasonable on the surface have the potential to undermine rules that demonstrably serve the common good. An example is the passage this year of bills in Indiana, Nebraska, and Idaho that propose to end “judicial deference.”  Judicial deference is a doctrine that requires federal or state courts to “defer” to administrative agencies’ interpretations of agency statutes and regulations. Instead, those bills require courts to apply de novo review — to examine executive agency actions without bothering to give weight to that agency’s interpretation of the statute or regulation in question.

The bills were based on model legislation: the Judicial Deference Reform Act, developed by The Goldwater Institute and the Pacific Legal Foundation. Those bills might not have been necessary, though–our radical, rogue Supreme Court, unconstrained by precedent, appears ready to junk that doctrine, called The Chevron doctrine after the long-ago footnote that established it. 

Why should we care about this arcane bit of jurisprudence? As one recent analysis explained, overturning the Chevron doctrine would allow individual judges to implement their partisan policy preferences instead of abiding by agency expertise.

Under Chevron deference, courts have been obligated for the past half-century to defer to career expert civil servants in agencies who created rules based on their statutory authority when the statutes were ambiguous or silent, as to highly specific and technical areas of regulation. Chevron deference has been used in more than 19,000 cases and is the basis on which Congress has enacted broadly worded statutes granting agencies regulatory authority for the past 40 years. Now, the Supreme Court is poised to throw the baby out with the bathwater by overturning the very authority it directed Congress and federal agencies to operate under….

The court also appeared ready to return to the Skidmore v. Swift & Co. doctrine, which preceded Chevron and, ultimately, would give federal courts more power to implement their policy preferences and ignore agency expertise. As Justice Elena Kagan aptly pointed out, Chevron replaced Skidmore because “judges [were] becoming too partisan in interpreting regulations,” which “dampens that kind of ideological division between courts.” She also reasoned that “Skidmore is not a doctrine of [judicial] humility.” Meanwhile, Justice Ketanji Brown Jackson emphasized that Chevron allows Congress to delegate policy choices to executive agencies and voiced concerns that “if we take away something like Chevron, the court will then suddenly become a policymaker.”

As the linked article notes, the conservative legal movement’s long effort to use the legal system to serve the interests of  corporate behemoths at the expense of sound policy and the broader interests of the American public seems increasingly likely to succeed.

The doctrine requires “deference”–not submission. If evidence produced at trial shows that an agency’s interpretation of a rule is unreasonable, the courts can and should overturn that interpretation. But discarding the requirement that courts should defer--not “buckle under”–is yet another blow to respect for knowledge and expertise. 

Executive branch agencies increasingly deal with matters requiring considerable subject-matter knowledge. Officials of the EPA are highly likely to know more about unsafe levels of arsenic in drinking water than a judge presiding over a case brought by a company that has been fined for exceeding that level in its discharge into a local river. Officials at the FDA have met professional standards for evaluating the safety of food and/or the efficacy of drugs. Recently, we’ve been reminded of the importance of informed FAA oversight of aircraft manufacturers like Boeing. The growing complexities of modern life–in technology, in medical science, in product safety–requires acknowledging the importance of specialized expertise.

The courts have operated under Chevron deference since 1984. That deference has not kept them from invalidating unreasonable or overbroad interpretations of statutes and regulations. It has, however, required judges (who come to the bench with a very different kind of expertise) to listen carefully to the reasons agency personnel interpret a given rule in the way that they do.

Most Americans have never heard of Chevron; in Indiana, Nebraska and Idaho, most citizens are blissfully unaware of the passage of laws discarding the doctrine.

The threat posed by overruling the doctrine is far less obvious than the threat to women’s autonomy–but that doesn’t mean this assault on expert knowledge isn’t significant.

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The Protests, The War

This will be a somewhat longer post than usual, and it has been an extraordinarily difficult one to write.

As a retired faculty member of Indiana University, and a former Executive Director of Indiana’s ACLU, I have been appalled by IU’s over-the-top response to the student protests on the Bloomington campus. The late-night change of a 55-year-old policy,  the decision to invite a police presence, the horrifying confirmation that a sniper was positioned on a nearby roof–all of this in response to what observers described as a peaceful protest–is incomprehensible.

Other institutions of higher education have similarly over-reacted–but still others have not. At Dartmouth, Jewish and Middle-Eastern professors have co-taught a class exploring the conflict and its history; at the University of Chicago, where my granddaughter is a sophomore, the University has issued a statement reaffirming students’ right to protest while making it clear that demonstrations “cannot jeopardize safety or disrupt the University’s operations and the ability of people in the University to carry out their work.”

You don’t have to agree with the message being conveyed in order to support the right to protest. In the immortal words of Oliver Wendell Holmes, freedom of speech is meaningless unless it is also “freedom for the idea we hate.”

I have refrained from posting my own concerns about the conduct of a war that has divided America’s Jewish community as much as it has the broader polity. But Josh Marshall of Talking Points Memo recently shared his reactions, and I share them. (Marshall is Jewish). He begins his essay by noting that much of the anti-Semitism being voiced has come–at least at Columbia–from non-students on the periphery of the protests. He also points to the naiveté of students calling for the elimination of the State of Israel, attributing the slogans to “the kind of revolutionary cosplay that is often part and parcel of college activism.”

Is this anti-Semitic? Not as such. It’s a political view that the Israeli state never should have come into existence in the first place and that the events of 1948 should simply be reversed by force, if a solution can’t be voluntarily agreed to. But since a bit over half of Jews in the world live in Israel, that is a demand or an aim that can’t help but seem wildly threatening to the vast majority of Jews in the world, certainly the ones in Israel but by no means only them.

Marshall discusses the decades-long administrative changes in institutions of higher education that have made so many universities ill-equipped to deal properly with this particular moment, and then he turns to the war itself.

If it is true that the groups spearheading the protest expressly hold eliminationist goals and beliefs about Israel, it is just as clearly true that the real energy of these protests isn’t about 1948 or even 1967 — they are about what people have been seeing on their TVs for the last six months. And that is a vast military onslaught that has leveled numerous neighborhoods throughout Gaza, led to the substantial physical destruction of much whole strip and lead to the deaths of more than 30,000 people. That’s horrifying. And people know that the U.S. has played a role in it. It’s not at all surprising that lots and lots of students are wildly up in arms about that and want to protest to make it stop.

To me, you can’t really understand the situation without recognizing that Hamas started this engagement by launching a massacre of almost unimaginable scale and brutality and then retreated to what has always been its key strategic defense in Gaza, which is intentionally placing their military infrastructure in and under civilian areas so that the price of attacking them militarily is mass civilian casualties that are then mobilized internationally to curtail Israeli military attacks on Hamas.

This is unquestionably true and no one can honestly deny that this is Hamas’s central strategic concept: employing civilian shields to limit Israel’s ability to engage Hamas in military terms.

But that being true doesn’t make tens of thousands of people less dead. And most of the dead aren’t Hamas. So if you’re a student you say — along with quite a few non-students in the U.S. — all that stuff may be true, but what I’m seeing is the ongoing slaughter of thousands of innocents and I absolutely need that to stop, especially if it is being carried out directly or indirectly with arms my tax dollars bought….

The last six months has thrown me very hard back on to defending the existence of Israel, its historical connections to Jews in Europe and the Middle East before the 20th century, its origins as the political expression of a people who are in fact indigenous to Israel-Palestine. And that’s because all of these things are now questioned and attacked as core questions.

But the reality is that these conversations, often harrowing and angry, are simply diversions from anything that creates a path forward from the terrible present. There are two national communities deeply embedded in the land. Neither is going anywhere even though there are substantial proportions of both communities who want that to happen to the other one. There’s no way to build something sustainable and dignified without both peoples having a state in which they have self-determination and citizenship. That’s the only plausible endpoint where violence doesn’t remain an ever-present reality. How you get there is another story. And yes, if you think one unified state makes sense, God bless you. If you can get majorities of both groups to agree to that, fine. I don’t live there. If that’s what they want, great. That’s almost certainly never going to be the case. And it’s a failed state in the making.

But none of these arguments about 1948 or 1967 or indigeneity or “settler colonialism” really impact or have anything to do with getting to some two state/partition end point. And no I’m not saying for a moment that that will be easy to get to. It seems terribly far off. But fantasies and alternative histories won’t get us there.

I am older than Marshall–old enough to remember my mother sobbing while reading “The Black Book” after the end of WWII–a compendium of reporting on Nazi atrocities. I remember the little blue box she kept, in which she collected dimes and quarters to plant trees in Israel, and I remember the fervent hopes of family members for the establishment of a place where Jews would be safe. Back then, none of us could have conceived of an Israeli government dominated by a Bibi Netanyahu, whose twenty years of shameful policies toward Palestinians have actually strengthened the Hamas terrorists, not to mention being utterly inconsistent with Jewish law, culture and tradition.

On this blog, I often repeat the mantra “it’s complicated.” And the situation in the Middle East is nothing if not complicated. Nothing–not history, not Netanyahu’s behavior before or since–justifies the barbarity of October 7th. That said, neither does that barbarity justify the horrors that have been unleashed on the Palestinian civilians in Gaza–just as shameful incidents of anti-Semitism on the nation’s campuses do not justify wholesale assaults on peaceful protesters.

A final reminder: the Christian Zionists in and out of Congress who support anything and everything that Israel does are motivated by their belief in the prophecy that all Jews must be “returned” to Israel in order to usher in the Rapture. Jews who accept Jesus will be “Raptured up,” while the rest of us will burn in hell. Unconditional support for Israel is necessary to bring that about–such support is most definitely not evidence of loving-kindness for the Jewish people.

At the end of the day, I keep thinking about that plaintive question from Rodney King, after he’d been beaten by officers of the LAPD: “Why can’t we all just get along?”

If only I had an answer to that…..

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Way To Go, Idaho Democrats!!

Americans who support a woman’s right to control her own reproduction have been following Supreme Court arguments in a recent case out of Idaho, in which the Court will decide whether federal rules requiring doctors to take measures to save women’s lives and health are superceded by Idaho’s law forbidding abortion unless necessary to save the woman’s life–a law that prevents medical intervention until the threat of death is dire.

This anti-woman law is hardly the only evidence of the extreme Rightward turn of Idaho’s GOP, a turn that–together with a “compete everywhere” strategy– the state’s Democrats believe will help the party win seats in the upcoming election.

As Politico has reported,

Democrat Loree Peery knows she’s a long-shot candidate for the Idaho Legislature.

But when her state House representative introduced a bill in February expanding an anti-cannibalism law — action prompted by a prank video — Peery decided she had to try to oust the far-right incumbent, Heather Scott.

“You can’t win if you don’t run,” Peery said, adding that Scott’s focus on irrelevant issues like cannibalism shows she isn’t a serious lawmaker. “It forces the Republicans to work, it forces [Scott] to get out there and talk to people so they can see what she’s about. It forces Republicans to spend more resources on the races.”

Peery, a retired nurse, is one of dozens of Idaho Democrats seeking an office in Boise for the first time. Under new leadership, the Idaho Democratic Party has deployed a grassroots recruitment strategy to put a record number of candidates on the ballot. In fact, there’s a Democrat running in every district for the first time in at least 30 years.

Idaho’s Republican super-majority–like Indiana’s–is obsessed with culture war issues. The draconian abortion ban is front and center, but Idaho Republicans–like those in Indiana–are also focused on attacking LGBTQ+ rights and punishing librarians over violating book bans. There is also what Politico calls “bitter infighting” between the conservative and (somewhat more) moderate flanks of the GOP.  As a result, Idaho Democrats see an opportunity to present voters with a different vision for the future of the state.

High visibility events like the just-concluded Supreme Court abortion argument and the Court’s recent refusal to stay enforcement of a ban on gender-affirming care while the case is being litigated, have allowed Democrats to make their case to a wide public.

As the Politico article pointed out,

It’s also not just Idaho. More Democrats than usual are running in states with GOP-dominated legislatures like Tennessee, Iowa and North Carolina. Democrats have made gains in recent years in state legislative races — flipping chambers in Minnesota, Pennsylvania and Michigan — after more than a decade of nationwide GOP dominance. But Republicans still control 55 percent of state legislative seats, compared to 44 percent for Democrats.

Idaho’s Democrats aren’t delusional; the article notes that they are frank about the very low odds of sweeping the election in November. Instead, they’ve set a modest goal of knocking out the GOP’s supermajority over the next decade. And they’ve embraced the critically-important strategy of competing everywhere. 

More than 50 obstetricians have stopped practicing in Idaho since the state’s abortion ban, which makes it a crime with a prison sentence up to five years for anyone who performs the procedure. Most of those remaining doctors practice in the most populous counties — and only half of the state’s 44 counties have access to an obstetrician.

“It’s really been a hair on fire situation, even for people who are not historically Democrats,” said state House Rep. Ilana Rubel, the Democratic minority leader. “[Republicans] have really overshot the mark in a big way and we’ve seen in other states when Republican supermajorities do this, they can lose.”
 
There’s some evidence that Democrats’ assessment of Idahoans’ mood may be right. A long-running public policy survey conducted by Boise State University found — for the first time — that more respondents said they feel the state is on the wrong track rather than headed in the right direction. Among those unhappy with the state’s trajectory, the top reason cited was Republicans’ conservative supermajority.

Idaho’s GOP is also experiencing brutal infighting. If the political ads we’re seeing in Indiana are any indication, so is Indiana’s.

What Idaho Democrats understand–and Hoosier Democrats evidently don’t–is that you can’t take advantage of the GOP’s mounting problems if you don’t field opposing candidates. You can’t win if you don’t run.



 
 

 


 
 
 
 

 
 
 
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What It Means To Recognize Complexity

I could have written the introduction to a recent New York Times column by Frank Bruni. In fact, I’ve written some posts that sound eerily familiar! Those of you who’ve read this blog for a while will recognize the similarity; here’s his lede:

I warn my students. At the start of every semester, on the first day of every course, I confess to certain passions and quirks and tell them to be ready: I’m a stickler for correct grammar, spelling and the like, so if they don’t have it in them to care about and patrol for such errors, they probably won’t end up with the grade they’re after. I want to hear everyone’s voice — I tell them that, too — but I don’t want to hear anybody’s voice so often and so loudly that the other voices don’t have a chance.

And I’m going to repeat one phrase more often than any other: “It’s complicated.” They’ll become familiar with that. They may even become bored with it. I’ll sometimes say it when we’re discussing the roots and branches of a social ill, the motivations of public (and private) actors and a whole lot else, and that’s because I’m standing before them not as an ambassador of certainty or a font of unassailable verities but as an emissary of doubt. I want to give them intelligent questions, not final answers. I want to teach them how much they have to learn — and how much they will always have to learn.

When I was still teaching, I echoed every bit of that message–adding to the repeated admonition about complexity a lawyer’s reminder that issues are inevitably fact-sensitive. In other words, “it depends.”

Bruni’s essay goes on to address something my previous posts did not–why the recognition of complexity matters. It’s about humility. As Bruni says, recognizing that “it’s complicated” is a bulwark against arrogance, absolutism, purity and zeal.

As eminent jurist Learned Hand famously put it, “The spirit of liberty is the spirit that is not so sure it’s right.”

Arrogance, absolutism, purity and zeal…could there be a more succinct, more accurate description of the crazies in the Senate and especially the zealots in the House of Representatives who are currently preventing thoughtful governance? (We should have a t-shirt with those words printed on it sent to Indiana’s own version of Marjorie Taylor Green, Jim Banks…)

Bruni asserts–I think properly–that humility is the antidote to grievance, and that grievance is the overwhelming political motivator these days.

We live in an era defined and overwhelmed by grievance — by too many Americans’ obsession with how they’ve been wronged and their insistence on wallowing in ire. This anger reflects a pessimism that previous generations didn’t feel. The ascent of identity politics and the influence of social media, it turned out, were better at inflaming us than uniting us. They promote a self-obsession at odds with community, civility, comity and compromise. It’s a problem of humility.

 The Jan. 6 insurrectionists were delusional, frenzied, savage. But above all, they were unhumble. They decided that they held the truth, no matter all the evidence to the contrary. They couldn’t accept that their preference for one presidential candidate over another could possibly put them in the minority — or perhaps a few of them just reasoned that if it did, then everybody else was too misguided to matter. They elevated how they viewed the world and what they wanted over tradition, institutional stability, law, order.

Bruni reminds readers that successful government requires teamwork, and that any significant progress requires consensus. “Governing, as opposed to demagoguery, is about earning others’ trust and cooperation. Exhibiting a willingness to listen to and to hear them goes a long way toward that.”

The entire linked essay is worth reading. Its message is especially pertinent to Hoosiers as Indiana winds down to the May 7th primary election. The vicious, nasty, dishonest ads being aired ad nauseam by Republicans running for Governor and for Congress are reminiscent more of monkeys throwing poo than messages from serious individuals willing to act upon their understanding of the common good. These contending political accusations display no hint of humility, no recognition of complexity, not even a nod toward civility. (Research suggests that voters’ response to such negative campaigning isn’t a vote for the particular monkey throwing the poo, but rather a decision to stay home on election day. That’s an unfortunate, but understandable, reaction.)

America faces complicated, pressing issues. We really need to stop electing purists and zealots who are ill-equipped to understand the complexity of those issues and too arrogant and absolutist to engage in the democratic negotiation and compromise necessary to solve them.

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The Policy Dilemma

Ever since the Internet displaced slick magazines and daily printed newspapers, wise readers have heeded the warning to avoid the comments.  Something about the anonymity of online responses evidently unleashes some truly hateful impulses. Consequently, except for comments on this blog, I tend not to read the opinions posted by readers of various articles and op-ed pieces. But I do read the “Letters to the Editor” published in the printed magazines I still receive, and I recently read one that deserves wider distribution.

It was printed in the New Yorker, and in a few brief sentences, the writer outlined a central conundrum of policymaking in democratic systems. The letter was a response to an article by Sam Knight about the “uneven performance” of Conservative rule in the United Kingdom. The letter-writer wrote:

But Knight overlooked one force that has shaped the country’s trajectory: the extent to which its government has, since the seventies, transformed from a representative democracy, in which major decisions were made solely by elected officials with support from the civil service, to a popular democracy, in which some of the biggest questions are decided by popular vote rather than by Parliament.

This transformation has created a truly irrational system, which takes important questions influenced by many complicated variables and boils them down to simple binary decisions to be made by people who may not be thoroughly informed. Democracy should remain an ultimate value in the U.K., but, if it is to persist, it must produce positive results for its citizens—something the Brexit referendum clearly has not done. Alas, the supporters of referendums lose track of the ultimate justification for a democracy—namely, that our elected representatives know that we, the voters, can throw them out if we think they are managing the country badly. It is simply wrong to equate this truth with an unproven assumption that voters also have the collective wisdom to regularly make wiser choices about complex issues than our representatives do.

Conservatives in the U.S. have historically insisted–correctly–that this country was not intended to be a pure democracy, but a democratic republic. (I’m not sure everyone making that assertion could have explained the difference, but that’s another issue…) The Founders created a system in which we citizens (granted, then only citizens who were property-owning White guys) democratically elected members of the polity to represent us. The idea was that we would vote for thoughtful, educated, hopefully wise individuals, who would have the time, disposition and mental equipment to analyze complicated issues, deliberate with other, equally-thoughtful Representatives, and negotiate a policy thought likely to address that particular problem.

Direct democracy would put such questions to a popular vote, and complicated issues would be decided based upon the “passions of the majority” that so worried the men who crafted our Constitution.

The Founders’ system makes eminent sense–but it only works when two elements of our electoral system work.

First of all, it absolutely depends upon the qualities of the Senators and Representatives we elect. And second, it depends upon the ability of the voting public to oust lawmakers with whose priorities and decisions they disagree– lawmakers who are not doing what their constituents want.

Those two elements currently do not work, and those electoral dysfunctions explain the inability of our federal legislature (and several state legislatures) to function properly–i.e., to govern, rather than posture. Gerrymandering is at the root of both of these failures, and the reason for the vastly increased resort to popular referenda and initiatives.

Thanks to partisan redistricting, far too many of the people elected to the House of Representatives (Senate elections are statewide and cannot be gerrymandered) are simply embarrassing–ideologues and outright lunatics performing for the base voters of their artificially-constructed districts. People like Paul Gosar and Marjorie Taylor Green, or Indiana’s version of MTG, Jim Banks, all of whom endangered America’s international interests by holding up and then voting against critical aid to Ukraine, among many other things–are examples of the intellectually and emotionally unfit and unserious “look at me” wrecking-ball caucus.

Gerrymandering also limits voters’ ability to rid ourselves of these impediments to rational governance.

There are other aspects of our electoral system that desperately need revision or elimination: the Electoral College comes immediately to mind. But the elimination of gerrymandering–partisan redistricting–would go a very long way to re-centering the system and encouraging thoughtful, reasonable people on both the Left and Right to run for office.

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