Kavanaugh hearings show Congress shifts lawmaking power to Court

Forget your high school civics class, the one where they taught you how laws are made. It wasn’t true.

Here’s the truth. Congress sometimes manages to pass broad laws, leaving it up to the experts -- regulators or administrators -- to fill in the details that apply to people.  While rulemaking, they’re under heavy pressure from lobbyists, who remain invisible to the public.

After the rules are adopted, opponents to the law or rules take their arguments to court.  They may claim the law is unconstitutional or the rules are not in line with the law.  Judges then say what the law is.

The centerpiece of the confirmation hearings of Supreme Court nominee Brett Kavanaugh, was if he would provide the decisive vote to overturn the Court’s decision in Roe v. Wade.  It had ruled that a woman’s right to choose to have an abortion was part of her right to privacy, protected from government interference.

In effect, the Court, not the Congress, has become the branch of government that determines the fate of Roe and it may do so by as little as a single vote. The original decision was based on an appeal from a Texas ruling, not from a law passed by Congress.  In short, the Court became the only federal lawmaker on abortion.

During the hearings, Sen. Ben Sasse, a Nebraska Republican, gave the Senate Judiciary Committee a little civics lecture, dealing with this point.  What he said was important.  It has been viewed by more than a million people via YouTube.  His four points are worth the attention.

First, he said, “In our system, the legislative branch is supposed to be the center of our politics.”

Second, he said, “It’s not.”

Third, “...when we don’t do a lot of the big actual political debating here, we transfer it to the Supreme Court.”

Fourth, “...we badly need to restore the proper duties and the balance of power from our constitutional system.”

In effect, he suggested that, while the legislative, executive and judicial branches are meant to be equal, the Constitution’s drafters placed Congress in Article I, because that is where policy is supposed to be made.  Protesters should not be at the Supreme Court, but at the Capitol.

Sasse found the failure of Congress to do its job went back to the 1930s, when it shifted much responsibility to administrators, those infamous “bureaucrats.” 

But he admitted there’s more than that. He said to his fellow senators, “... if your biggest long-term thought around here is about your own incumbency, then actually giving away your power is pretty good strategy.”

It takes courage – accepting the risk of losing reelection – to vote for controversial legislation. It’s this aversion to political risk that leads legislators to shift power to administrators, with the last word going to “super-legislators,” the nine Supreme Court justices.

If Congress did its job, hearings on Court nominees would focus less on how a judge would legislate and more on a person’s “temperament and character” and on their ability to keep their personal views out of decision-making.

Sasse’s speech was an outstanding exercise in American idealism.  There are a few reasons why it’s not likely to happen.

Even he admitted that Congress cannot master the details of all legislation and must leave some to experts.  The question is how far that goes, and some Democrats seem to believe much must be left to unelected experts. 

Perhaps laws should be both more specific and broader in scope.  The intent would be to transfer less authority to administrators and less power to lobbyists. Just look at the tax code. It’s far less complex than the bewildering IRS rules.

Court decisions have always dealt with policy, and judging is not merely a question of following the law. The Court makes law.  In the 1857 Dred Scott decision, the Court ruled that black people were not really people at all.  That decision was pure politics, a hugely misguided attempt to forestall war.

The inability to compromise blocks Congress from making needed policy decisions.  An immigration policy that was nearing bipartisan agreement has died on the altar of the Mexican border wall.  Trade policy, clearly a congressional power, is left to a president who never saw a tariff he didn’t like.

In the end, if Sasse’s view is to prevail, it depends on voters focusing more on the “temperament and character” of congressional and presidential candidates and their political orientation than on the ill-advised pledges they make to get elected and then can’t or shouldn’t keep.

McCain fought Trump, but president’s base remains unmoved

Sen. John McCain's funeral was the occasion for praising his dedication to friendship and fair play. 

The words of former presidents George W. Bush and Barack Obama and Meghan McCain, his daughter, were all telegraphed criticisms of Donald Trump's rough handling of his self-designated adversaries both at home and abroad.

But the words they spoke or even election results in November unfavorable to Trump will not change underlying divisions among the American people that have been brought to the fore by Trump's election and his demeanor.

Trump's style may leave much to be desired.  He shoots from the lip and never admits error.  Faced with McCain's political opposition, he lashed out, saying that McCain was not an American hero.   When criticized, he doubled down and claimed that he, the almost certain draft dodger, did not regard a POW as a hero.

It is hard to believe that there is any American who does not believe that McCain performed heroically.  A  POW for more than five years, he was tortured and rejected early release, knowing it would serve as propaganda.  He had accepted an extra and especially risky mission.  This was a hero.

Trump has readily attacked both Democrats and Republicans.  He has scorned America's oldest allies.  He shows little concern about the reaction from people whose help and support he and his country may later need.  He seems to trust nobody outside of his family and perhaps a few friends.

McCain saw Trump's attitude and actions as a departure from American values of patriotism, cooperation, and compromise. He feared the U.S. was disintegrating politically and losing its leadership role in the world. 

McCain, Bush and Obama held Trump responsible for the loss of American power and influence.  But they may have missed the fact that Trump represents a significant segment of the American public.   His supporters may share some concern about his tweets, but they appreciate both what he does and what he represents.

It is easy to dismiss Trump's “base,” but it is real, and it is not going away.

Some of his supporters see Trump as the embodiment of the rejection of demographic change in the country.  Obama's election was a clear indicator that the racial composition of the country is changing.  In a few decades, the American majority will no longer be white.

Trump's opposition to immigration sends the message that this demographic trend can be slowed, if not halted.  If the new demographics worry a person, supporting Trump makes sense.

Trump promised change, and he obviously tries to keep his promises.  Some people expected he would abandon some of his promises when he discovered they were incorrect or based on false assumptions.  But he has spurned the experts, whom he saw as producing too few useful results, and kept his promises.

Suppose NAFTA is modified.  Suppose China backs down on some of its trade policies.  Suppose the economy continues to grow thanks in part to tax cuts and deregulation.  Trump will take full credit and many people will understand too few of the details to question his claims.

If these voters are satisfied by his moves and their results, they may believe his rough treatment of others and his knee-jerk tweeting have been justified.  He may be a bully, but he's our bully.  The base would remain loyal, and McCain's call for American values could be ignored.  It will be a case where the end justifies the means.

Trump worries most about being seen to have won his election with Russian help.  He need not to have colluded, but still find himself and the legitimacy of his election challenged.  The facts may lead as far as a serious impeachment attempt, but almost certainly he would survive as president.

In the end, the key question may be whether his base believes he is a political victim, like Clinton or a real scoundrel, like Nixon. But most Republicans back him if for nothing more than party loyalty.  They see the media as biased, not their president as dishonest.  

McCain believed that Americans could be called back to their values from their flirtation with Trump. However much he deserves respect, he may be proved to have been unduly optimistic.

Trump's most ardent supporters hated McCain. One of them tweeted a threat to the life of Meghan, simply because she took her father's side against the president.

The challenge to holding the country together may be far more difficult that McCain's call for unity and to what Lincoln called “the better angels of our nature.”

Unions face growing challenges on Labor Day

Labor Day comes this weekend.  It marks the end of the summer season

Somewhat lost in the final vacation days is the fact that is supposed to recognize the contribution of the American worker to the country’s economic success. 

Our system requires capital to be invested in the economy, but it also depends on the efforts of a large and effective work force.  Simply describing the system as capitalism, correct as far as it goes, leaves labor out.  So we have Labor Day.

As the celebration of the American labor movement fades, labor unions themselves seem to be losing ground.

Labor Day began a century and a half ago.  It was set in September to keep it away from May 1, an international labor day dominated by socialists and communists.  Oddly enough, May 1 had an American origin, the Haymarket Affair, a bloody labor conflict in Chicago around the demand for an eight-hour workday.

The organized labor movement grew and its influence expanded through World War II.  Federal legislation gave workers the tools to organize.  After the war, a reaction set in and some of those tools were limited by new federal laws.

The presence of union members in the private sector work force began declining six decades ago.  Not only did restrictive laws affect it, but labor gains would come more through the legislative process than through collective bargaining.  Working conditions were set by law.

The Maine referendum to set the minimum wage illustrates how labor matters have come to be decided through the political process.

Some widely publicized scandals also harmed organized labor.  Jimmy Hoffa, the chief of the Teamsters, became a nationally known figure for his criminal associations and served time in prison.

Unions also faced “right to work” laws.  Employers managed to get half the states to prevent workers from being required to join a union or pay dues even as they enjoyed the benefits of collective bargaining.  The obvious intent was to weaken organized labor.

Another factor after World War II was increased globalization.  Trade and production were less defined by national borders as production lines and markets became international.  That meant American workers would face competition from countries with far lower standards and costs as well as less environmental protection.

Some private sector unions learned how to adjust in providing their members access to good pay and job security.  But it became increasingly difficult and membership declined.

At the same time, public sector labor organizations grew.  While not able to strike, they bargained effectively for wages and job security.  Then, they began to face similar legislative obstacles to those in the private sector.  Recently, the Supreme Court ruled that non-members did not have to pay collective bargaining costs.

President Trump wants to make it easier to fire federal employees and to cut the amount of time that can be devoted to union activities.  Last week, a federal court overturned his executive orders.

Attempts to weaken unions can be expected to continue in both federal and state governments.

The underlying reason may not be simply to reduce labor costs and boost profits.  If unions are reduced in strength, they may not be able to play a strong role in politics.  The massive political spending by corporations and billionaires is justified by the claim they must match huge union spending.

In fact, unions contribute far less to political campaigns than their opponents.   Union members also increasingly have personal and political interests that are unrelated to union goals, and unions cannot deliver their votes.

The trends that have developed since Labor Day was created suggest that organized labor will win fewer battles at the bargaining table.   Just as corporations and their owners have resorted to legislative action, the unions are increasingly forced to do the same.

In the face of the well-financed opposition to their hard-won wages and working conditions, unions may have to step up their political operations even more.  Obviously, they must meet money with money, which may require more cooperation in political action among unions.   They need to get out the vote.

Unions will need to seek alliances with others with complementary interests.  That may mean compromise and taking a hard look at the effects of globalization and how to deal with it rather than believing it can be beaten back.  Of course, trade agreements must really be fair.  But they cannot be wiped out.

If Labor Day is not to fade away entirely, left only as an occasion for nostalgia, labor must continue facing up to new political realities. 

King Coal would kill Clean Power Plan

The flight from Boston to Los Angeles is about an hour longer than the flight back.  There’s a pretty simple reason.

The prevailing wind is from west to east.  On the way to Boston, it can literally push the plane along.

That wind can push almost anything along in that direction.  For example, it can send eastward to Maine and elsewhere in the Northeast pollutants from coal-burning plants in the Midwest.  The west wind knows nothing of state boundaries.

As part of the worldwide effort on global warming, the Obama administration adopted the Clean Power Plan to reduce the harmful effects caused by coal-fired power plants.  No effective way has been found to clean up emissions from burning coal, so inevitably the CPP meant using alternatives.

The CPP never went into effect officially.  Coal producing states challenged it, and, in 2016, the Supreme Court suspended it.  It’s fair to wonder if the Court will ever decide the case.

But states began acting as if the CPP were going to be approved.  More than 35 states are expected to reach the Plan’s goals.  About a dozen likely won’t.  All but one of them voted for Donald Trump.  The New York Times reports they produce 40 percent of the nation’s carbon emissions.

Those in compliance have increased the use of natural gas, as it has become more plentiful and less costly, and have experienced the growth of wind power.   The CPP has laid out the path to the future, and some states seek to meet its goals because it is politically popular to fight climate change.

The split in CPP compliance fits well with President Trump’s view on reducing federal power.  He would not prevent states from pursuing the Plan’s goals, but each state should be able to make its own decision.  Fifty different clean air policies would be all right.

Maine and the Northeast are sometimes called “America’s tailpipe.”  But the problem is even worse.  A tailpipe carries pollutants out of the vehicle, while power plant carbon emissions are dropped off within the country on their way out to sea.

The Trump proposal would mean that almost every state’s decision on the CPP would be felt beyond its borders.  The climate may grow dangerously warmer, but perhaps not in all states equally.  Air quality will be degraded in states to the east of the producers.

In effect, the Trump approach would be to take country back to where it was before the Constitution.  Then, the United States was an association of what were, legally, 13 independent countries.  The Constitution was drafted by states, because some issues required a unified, American policy.

From the outset, the Constitution required that states look at themselves as part of a national economy.  Political decisions on issues crossing state borders would have to balance divergent interests to produce an all-American result.

President Trump wants to encourage a rebirth of what, a century ago, a writer called “King Coal.”  Burning more coal may help the economy of some states, but at the cost of harming the health of others. 

The Trump plan itself acknowledges there will be more deaths and more lost school days than under the CPP.  Is slowing the reduction in coal use worth this price?

Environmental policy must take both sides into account.  Abandoning the goals of the CPP favors only one side.  Previously, as Congress focused environmental legislation on the national responsibility to promote improved air quality, it balanced interests. 

The Clean Air Act of 1970, produced by Maine Sen. Edmund Muskie, created federal government environmental authority.  In 1990, Senate Majority Leader George Mitchell of Maine led the effort to adopt the Clean Air Act Amendments, serving notice on coal-burning power plants.

Half a century or even 28 years is ample advance notice that coal-burning plants should be phased out.  Efficiency alone dictates that old coal-fired plants should be closed.

The 1990 law also limited auto emissions, based on a negotiated compromise with car makers.  Now the Trump administration wants to back off rules that mandate increased gasoline mileage to reduce emissions.

Trump would even force California, which had a major smog problem, to fall into line with his national mileage policy, requiring it to slash its own state rules.  This move would run directly counter to a policy allowing each state to set its own rule for coal emissions. 

The country needs a balanced policy to improve both national health and the national economy. Turning the clock back to favor only one side won’t serve the purpose.