Despite Cost and Blunders, GOP should stand firm on Scalia Replacement

In the aftermath of Justice Antonin Scalia’s passing, it can feel a bit crass discussing the political fallout; after all, he was a husband, father, and grand-father whose family is in mourning. However given the current balance of the court and titanic influence he leaves on legal thinking, the fact is we are entering one of most significant political battles in years, and while Senate Republicans have already made a tactical blunder, they must hold firm.

Whether you agree with his jurisprudence or not, it is indisputable that Scalia leaves behind a tremendous legal legacy. In 30 years on the court, he re-energized the textualist movement with harsh, impeccably worded dissents, groundbreaking majority opinions (ie Heller), and the occasional surprise (ie Emp Div HR OR v. Smith). Scalia is the father of much conservative legal thought, which makes the fight over his successor all the fiercer. On top of this, the Court now has 4 liberals and 4 conservatives (3 if you count Kennedy as a centrist). This means that the cases in which the Conservative wing would have prevailed 5-4 are now deadlocked 4-4. A liberal Obama Justice could feasibly swing the court to the left for years, guaranteeing the stability of Roe while endangering recent precedent on campaign finance, gun rights, and more.

Given the stakes, Senate Republicans must be very careful in how they proceed. Scalia’s death comes at an odd time. Had a vacancy arisen 5 months ago, the “lame duck” argument would be very weak, and the Senate would have been compelled to confirm a qualified nominee (elections do have consequences). If a vacancy had arisen 6 months from now, the decision not to act on a nomine would be on exceedingly firm ground as Obama would be a truly lame duck with an election right around the corner. Now, the timing of 9 months prior to the election gives credence to both arguments on whether to act or not (Kennedy in 1988 provides precedent to act while Fortas in 1968 is precedent not to act). Ultimately, this is really a new situation, unless you deem how congresses acted 50, 80, or 150 years ago to be very relevant to the present day.

With the court so evenly split, the GOP should likely delay, but the politics are bad. Republicans have only worsened the situation as well. On Saturday, Majority Leader Mitch McConnell said, “this vacancy should not be filled until we have a new president.” The Senate will not move on an Obama nominee, and the GOP almost certainly has the votes to sustain any filibuster. With 54 seats, they would have to suffer 14 defections, which is almost unthinkable, especially with vulnerable Senators up for re-election like Pat Toomey and Kelly Ayotte currently backing McConnell’s position. While the GOP should delay this until the next President, the way they are going about it is a mistake.

Republicans should have waited for Obama to formally nominate someone and then found specific reasons to oppose that candidate. Now, any specific criticisms can more easily be written off as an after the fact rationale from a bunch of obstructionists. Announcing opposition now is akin to shooting first, asking questions later. It is almost certain that the Obama nominee (whether it be Loretta Lynch, Sri Srinivasan, or someone else) will have enough flaws to justify delaying confirmation until the next President, and under the miniscule chance Obama makes a consensus choice, that nominee would deserve a fair hearing. In an effort to appease the Ted Cruz kamikaze wing of the party, McConnell has made it easier for democrats to label republicans as obstructionists and sway independents in the 2016 election.

In all likelihood, this political fight will have a limited impact on the 2016 election, but if anything, it hurts republicans. That said it can be worth losing political points when waging an important fight. The fact is few voters ever cite the nomination of Supreme Court justices as their most important issue (even though this power is one of the President’s greatest), and that is unlikely to change. It is hard to imagine more than 10% of Americans seeing this as their top issue, and such voters are likely high propensity, partisan ones. This is to say that they likely vote anyway and are not persuadable. On the margin, some democrat and some republican voters may be more energized, but they would have voted anyway. Scalia’s death may energize some voters, but it won’t swing the outcome in any meaningful way. However, this fight will make it easier for democrats to make the obstructionist argument (particularly if Ted Cruz become the nominee), which on the margins could swing some independents to the democrats. The Supreme Court does not work as a stand-alone issue to sway independents, but it can be used as part of a broader narrative against republicans. In particular, if Ayotte, Toomey, and Johnson get weak-kneed, that is a sign the political cost of this fight is growing.

Obama has every right to nominate someone, and the GOP should hold hearings for that nominee. However, there should not be hesitation to oppose him or her and keep that person off the bench given the high stakes of this vote in a divided court. The GOP should’ve waited for the nomination announcement to come out in opposition to avoid the “blind obstructionist” label, but that is water under the bridge at this point. With the Supreme Court in the balance, this is a fight worth having, even if there is a slight political price to be paid.

Justice Scalia’s guiding philosophy was driven by the goal of making the text of the law pre-eminent so that who the presiding Jude is does not matter. It is a sad twist of irony then how much of a fight there will be over who succeeds him. Equally, one is left to question the fragility of our republic that the death of one Judge can have such earth-shattering (partisans might say cataclysmic or bountiful) consequences.

 

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The State of the Union: Strong But Unsatisfactory

Later today, President Barack Obama will deliver his final State of the Union Address, filled with the typical pomp and circumstance. Following the pattern of virtually every speech given by each of his predecessors in the Modern Era, Obama will declare the State of our Union is “strong” or something to that effect. Democrats certainly will hope voters feel exactly that way in November as they try to retain the White House for a third straight term, a feat they have not accomplished since President Truman. However, the leading Republican candidate, Donald Trump, has a campaign slogan (Make America Great Again) that could be taken to imply the state of our union is not strong.

So cutting through the partisan spin; what really is the state of the union? I would argue it is strong but unsatisfactory. The fact is that America is the best positioned nation in the world, but there is still much work to be done. In this sense, both sides have valid points to be made; our situation is not necessarily as dire as republicans campaigning suggest while there are greater risks to our future than the President has conceded.

To be frank, the fact we are strong is not really an accomplishment for the President. While we were in deep recession in 2009 when Obama assumed Office, America was still the strongest nation on earth. While our banking system had been crippled by the Housing Crisis and Lehman failure, requiring the Bush Administration to launch widespread bailouts to avert Depression, the worst of the financial crisis had passed by January 20, 2009, and depression was off the table. America was still the center of innovation with the best technology firms in the world residing here, mainly in California. We were the clear global hegemon economically and militarily.

Today, I would argue that last sentence still rings true. Yes, GDP growth has been undeniably sluggish, but our economy is far larger than any other, and it adds far more value than export-driven China, which has run into significant problems of its own of late. The official unemployment rate is down to 5%, and even if we adjust for some of the cyclical weakness in the labor force participant rate, unemployment would be 6.5-7%, which is neither great nor horrible. Yes, China is saber-rattling in the South China Sea, and Putin has caused problems in Syria and Eastern Europe, but our military and naval wherewithal is without rival.

China’s military might is entirely regional, and Putin lacks the economic power to exert influence much beyond his own borders and Syria. Given his nuclear arsenal, we cannot force him to do anything, but he can’t force other nations to do much either. He and China are undoubtedly challenging the U.S. Security Order with limited successes, but the fact remains, there is nary a region in the world where we are not a key (if not the key) player. America is the lone indispensable nation on the face of the earth. The setbacks and loss of influence in the Middle East, parts of Eastern Europe, and select spots in South Asia are not markers of inevitable decline but rather missteps quickly reversible under new, more assertive American leadership.

Consider the following questions. Is there a nation you would rather be today than the United States? Would you trade America’s future for that of another nation? Is there a more dynamic economy on earth? Would you swap our military power for that of another country? Is there a nation where you can enjoy more political freedoms or economic potential than here?

Chances are you would answer “no” to all (or at least most) of those questions. How then, can one say the state of our union is anything but strong? Again, the same was true in 2008, and it is a testament to just how well positioned America is and how dynamic the American people are that these statements are almost taken as a given. Being “strong” is really not an accomplishment of the President; the accomplishment is not torpedoing that strength, something almost no President could manage to do. That is why the American people rightly demand more than a strong state of the union.

Now, Obama has some indisputable accomplishments. The economy is stronger than in 2008, but it is not strong enough. GDP growth of around 2-2.5% has been positive but not spectacular. Real median income is lower than in 2000; the typical worker has not felt this recovery. This has been a problem for 15 years and is a serious challenge neither party has done a good job of addressing. We need to make structural reforms, restructure our tax code, and improve education to build a stronger economy from the bottom-up to grease the tracks of upward mobility. A poverty rate of 15% continues to be a stain on this country, and our programs need to focus more on lifting people from poverty rather than simply making poverty more comfortable. We need to reform, and yes cut, entitlements like Medicare and Social Security to ensure they will be solvent for those of us who really need them in our later years. Is our economy strong? Yes. Satisfactory? No.

Beyond economics, we have unsatisfactory progress in other areas. Race relations are not where they should be, and in too many communities, police-community (particularly in black precincts) relations are not where they should be. Many parties (from a media that generalizes every story to bad cops to self-aggrandizing community leaders) share the blame, but we need to take steps in local communities to rebuild trust. Gun violence is too high, and this nation does not handle mental illness as well as it could. There are no easy answers, and the gun issue is too often politicized. The scourge of violence is real though. Is our culture strong? Yes. Satisfactory? No.

In foreign affairs, we do not have a clear strategy to permanently roll back ISIS from Iraq and Syria and its outposts in Libya and elsewhere, though our military certainly has the capability to defeat the terrorist organization. We have ceded influence to Iran in the Middle East. Our Eastern European allies are on edge as NATO seems ambivalent about a bellicose Putin, and we are not investing sufficiently in a 21st century Navy that can guarantee freedom of navigation in the South China Sea. We have the tools to address these international challenges; it is just a matter of gathering the will and thinking in years not weeks when budgeting and planning. Is our international standing strong? Yes. Satisfactory? No.

The President is right to say the state of our union is strong, and America continues to be the world’s best positioned nation—the world’s only superpower. That said, republicans are right to say we can do a lot to make America even stronger and build an economy that works better for everyday citizens. GOP candidates need to refine their rhetoric and avoid doom and gloom, which is not in sync with reality.

The genius of America is that we are always striving to make the country better because the pursuit of happiness and liberty is an unending effort. We are never satisfied with the state of the union. The GOP should offer clear contrasts with and criticisms of current policy but must maintain optimism. We are an optimistic people, and the optimism is entirely justified.

After all, how else should we feel about the strongest, most morally just nation on earth that serves as a beacon of hope for oppressed people the world over?

Feckless Actions That Caused a Firestorm

Earlier today, President Obama unveiled a batch of executive branch actions with the purported intention of cutting gun violence. While too often castigating his opponents on the issue as either heartless or in the pocket of the gun lobby, on the whole, the President offered an impassioned, compelling argument for more action on the gun issue, capped off by Obama startlingly and powerfully shedding tears as he discussed the horrific Newtown murders. Unsurprisingly, many in the GOP were up in arms (a sample: Trump, Cruz, Ryan, Price), and depressingly, some commentators even suggested Obama’s tears were fake.

Many on the right have put themselves in the position of simultaneously arguing President Obama’s actions won’t do anything yet pose existential threats to our constitution and the 2nd Amendment (this seems to be the NRA’s argument), which is a difficult if not impossible case to make. Sadly, by so quickly rushing to politicize the issue, many Republicans have shed the high ground as Obama’s orders are toothless, intended to rev up a political base needing motivation ahead of an Election. Will they solve the problem? No. Are they legal though? Almost certainly.

Aside from some uncontroversial actions on mental health, the thrust of the executive actions are focused on what it means to be a gun dealer. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is clarifying what it means to be a gun dealer, namely whether or not a gun-seller has to get a background check on the gun-buyer. Given Obama’s directive, the ATF has attempted to guide sellers whether they need to seek a license and thereby get background checks, and it’s a mess.

Obama is not to blame for why the rules are a mess. Congress is because it consistently writes vague laws, leaving it to the Executive Branch to fill in the details. By doing so, the Congress abdicates its legislative authority to the regulatory bodies under the President. Congress has no grounds to write intentionally vague laws and then complain over the interpretation. Here is the text of the law Obama is clarifying:

The term “dealer” means (A) any person engaged in the business of selling firearms at wholesale or retail, (B) any person engaged in the business of repairing firearms or of making or fitting special barrels, stocks, or trigger mechanisms to firearms, or (C) any person who is a pawnbroker. The term “licensed dealer” means any dealer who is licensed under the provisions of this chapter.

….The term “engaged in the business” means—

as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a person who devotes time, attention, and labor to dealing in firearms as a regular course of trade or business with the principal objective of livelihood and profit through the repetitive purchase and resale of firearms, but such term shall not include a person who makes occasional sales, exchanges, or purchases of firearms for the enhancement of a personal collection or for a hobby, or who sells all or part of his personal collection of firearms

In plain English, if you occasionally sell a firearm, you do not need to get a license. This exception, created by Congress, is what is referred to as the “gun show loophole” as at gun shows some individuals may decide to sell a gun or trade with another collector to enhance a collection. However, those who make a business selling guns have to follow the same legal procedures whether selling in their store or at a show. There is no exception for all sales at gun shows—the gun show loophole is really a misnomer.

The law begs the question though: when does occasional cease to be occasional? When does having a hobby turn into a business? We would all probably agree that selling 1 gun per year counts as occasional but selling 3,000 would not. However, Congress has left a massive gray zone; they intentionally ducked the issue, avoiding controversy, and passed it off to the President. There is no numerical definition for occasional, and Obama does not attempt to set one. There is as plausible an argument to be made that 50 sales ceases to be occasional as 100 sales. Don’t be surprised if different Presidents enforce at different levels; Congress’s vagueness and cowardice has empowered the Executive to do just that.

Obama is essentially telling his ATF to be more stringent in its enforcement of occasional, which Congress has granted him the right to do. Obama is not threatening our Constitutional balance of power; rather, Congress has abdicated its constitutionally prescribed ones, signing them over to the President. This is not the act of an Imperial President but the result of an Impotent Legislature. If Congress does not feel the intent of their words are being enforced, they have the ability to pass a new law more clearly stating what “on occasion” means, thereby restricting the President’s discretion. Barring that, what Obama did was perfectly legal. It also isn’t dangerous to our Constitution; unless one wants to argue existing laws and their gray area unjustly infringe upon the Second Amendment, a tough sell both in the court of public opinion and in the court of law.

These actions barely move the needle and will have next to no impact on gun crime as so few gun sales will be impacted. Few mass murderers purchased guns in a sale that would have been regulated differently thanks to these changes. This is political theater with the President trying to show he is doing something to rev his base while implicitly acknowledging to do something more sweeping Democrats need to take congress, meaning those who want tighter gun control have to get out and vote. I think it is clear that Obama wants to fundamentally change our gun laws, but (unlike on immigration and soon perhaps GITMO), he recognized his limits and acted within them. It makes for good base politics but will have an imperceptible impact on gun violence.

Instead of attacking Obama for showmanship and impotence while acknowledging that in his heart he wants to see lower gun violence (and arguing he is just pushing the wrong proposals), some on the right reflexively and sadly attacked his motives, suggested he was destroying and 2nd amendment, and lamented the uselessness of his actions. Again, the second and third points seem incoherent when paired together. This is an example of Republicans politicizing the issue as much as the President to enthuse their own base ahead of an election.

Sadly, it increasingly seems like both sides lack the will for a substantive discourse on this (and other) issues, preferring to gin up their respective bases rather than making persuasive arguments and finding common ground. We keep yelling past each on guns, achieving nothing. Meanwhile, China lands planes on disputed islands in the South China Sea, Iran and Saudi Arabia inch closer to conflict, and North Korea may have conducted a nuclear test. No wonder people hate politics.

 

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The Paris Agreement: Yet Another Meaningless Deal

On Saturday, nearly 200 nations signed a climate pact that President Barack Obama called a “turning point for the world.” Obama argued this agreement was the one “the world needed.” Upon reading the actual text of the deal, it would appear the world didn’t need very much, if the President’s claim is to be taken at face value. In the end, this deal is as fanciful and toothless as the Kellogg-Briand Pact of nearly a century ago that banned war in the wake of World War I. While the failings of this deal are unlikely to be as grave (World War II was pretty awful, you know), it suffers from the same fatal flaw: no enforceability.

This agreement doesn’t actually do anything; it is merely a voluntary plan whereby nations will unilaterally cut emissions or something. The over-arching goal is to keep global temperatures rising 2 degrees (Celsius) from the current expectation of some in the science community for 2.7-3.7 degrees. If this voluntary deal works really well (!!!), the agreement leaves open the possibility of pushing for a more aggressive 1.5 degree target.

This agreement “invites Parties to communicate their first nationally determined contribution no later than when the Party submits its respective instrument of ratification, accession, or approval.” This agreement merely invites nations to come up with their own plan to bring down emissions to unspecified levels to lead to less climate change. Does that sound vague? Don’t worry; this agreement also creates an “ad hoc working group” to monitor nations’ progress because groups of bureaucrats are renowned for getting things done.

Signing to this deal merely signifies the “Voluntary participation authorized by each Party involved.” Are there any enforcement mechanisms that punish nations for failing to bring emissions down (or for some developed nations, rise more slowly)? Nope. We are operating solely on the trust system—no way that could produce underwhelming results. Some hailed the underlying goal of the deal as ground-breaking: “Parties aim to reach global peaking of greenhouse gas emissions as soon as possible.” Others may contend that the phrase “as soon as possible” means absolutely nothing and gives offending nations plenty of room to maneuver if confronted (i.e. more action just wasn’t possible). This deal also says developed nations are to give developing ones at least $100 billion/year by 2020 to help fund their development, thereby making income redistribution an international affair. Good luck getting everyone to write those checks…

Those who are unconvinced climate change is the world’s most pressing problem and aren’t prepared to crush the economy to cut emissions should actually be thrilled by today’s deal as no new policies have to be implemented. If we actually wanted to cut emissions, any deal needs to have set targets and strict ramifications for violations (for example, automatic WTO admissible tariffs to hurt the economy of offenders). Otherwise, developing nations, like China and India, will cheat, pointing to the fact there were no restrictions on the West’s industrial revolution a century ago. Of course, they benefit from our revolution (India doesn’t have to invent the car for instance), so there should be restrictions if we are to have some, though perhaps not quite as onerous for a bit of time. Adhering to unenforceable deals threatens to leave the American economy relatively uncompetitive as other nations’ flout the deal’s requirements.

Fortunately for the climate alarmists in our midst, the private sector is already helping to solve the problem. Our abundance of natural gas is hurting coal, and with or without government regulations, coal will likely go the way of the dodo bird in this country over the coming decades. As we export LNG, energy production around the world will only get cleaner. Automotive emissions keep improving, and the advent of the electric car will only help. Continued advancement in battery technology could facilitate a smaller, cleaner grid while improvements in transmission will make nuclear more viable in more regions. Even in countries like China, popular discontent over ridiculous pollution levels could force the regime to act over time if only to keep the public happy. Indian cities aren’t far behind.

However, our President is a climate alarmist, which leaves one befuddled as to why he would be happy with this deal that is voluntary and lacking enforcement mechanisms. This climate pact is strikingly similar to the Iran Deal, which is nonbinding (heck no one even signed the agreement!) and has laughable verification measures (not to mention the fact that re-imposing sanctions with Russian approval and European unity is as likely as Hell freezing over, unless of course unfettered climate change here serious impacts the temperature down below…).

Our President seems to have a lot of trust in foreign powers to do the right thing despite their national interest. It’s a fascinating turn for a President who so recognized the free-rider problem, he coerced Americans to buy healthcare insurance or face stiff financial penalties (the individual mandate). Of course, if the insurance under Obamacare is as good and affordable as advertised, wouldn’t people be clamoring for it and not need coercion? I guess, unlike China and Iran, Americans can’t be trusted to the right thing.

Moreover, our President may see no need to make legally-binding agreements since he never feels the law binds him as evidenced by the lawless immigration executive orders and potential one on Guantanamo Bay. Ultimately, our President seems to enjoy doing things for the sake of doing things. That is how Democrats inevitably react to gun violence (just pass a law, even if it wouldn’t have stopped this shooting). Obama wanted a deal with Iran to check off a box on his legacy, even if the deal was a poor one. Similarly, he wanted to do something on the climate. We can all sleep easy and claim the moral high ground now that this high-sounding, completely unenforceable garble has been agreed to. In the view of our leadership, just doing something is an achievement, results be damned. That is the only way to explain the Iran Deal, the Paris Accord, gun violence reactions, and our tepid ISIS bombing campaign. At least we can feel good about ourselves as the world implodes!

Now, I don’t believe economy-crushing cuts make sense, but it astonishes me how horrendous of a negotiator our President and his Secretary of State, John Kerry, are. They are either delusional or lying when calling such a deal as this a groundbreaker. If we ever want to deal successfully with China or Putin or Iran, this naïve idealism is dangerous.

Recently, Obama and the Left have often linked climate change to terrorism. Well, the Paris Agreement will do as much for emissions as those 20 bombings/day have done to roll back ISIS.

Just like coal, this deal will end up being a puff a smoke, not worth the two weeks of diplomats’ hot air blown in Paris.

Trump Isn’t the Problem; He’s the Symptom

On Monday afternoon, Donald Trump announced a plan to ban Muslims from entering the United States, sending shockwaves through the political universe. The plan drew condemnation from most of the chattering class and his fellow candidates, though undoubtedly, many of his supporters were on board with the thrust of the plan, even though Trump suggested even American citizens, who happen to be Muslim, will be banned from re-entering the country. To be frank, this plan is abhorrent and repulsive to our constitutional ideals and merits unequivocal rejection. It is now easy to cast Trump as a problem (and for the GOP’s electoral chances in 2016, I would argue everyday he dominates the news cycle is problematic), but in reality, Trump is merely the symptom and not the problem itself.

Focusing on the plan first, it manages a perfect trifecta: unconstitutional, irrational, and unworkable. Working backwards, it is unworkable because it is absolutely impractical to know for certain whether or not a foreigner, seeking to enter the country as a tourist, is a Muslim. Are we going to ask for religious documentation? How do we know that a Radical Islamic terrorist isn’t merely pretending to be a Christian? Proving a negative (ie that one is not secretly a Muslim) is a dead end. Immigration would ground to a total halt. Plus in many of the most dangerous places, verification is an impossibility, hence the House plan to temporarily pause the Syrian refugee program.

It is also irrational because it misplaces the threat. Do we feel better about a businessman from Vancouver, who happens to be Muslim, visiting family in Seattle or a self-declared non-Muslim from Raqqa, Syria coming to the country? Under the religion-only test, the Syrian gets through and Canadian gets blocked. Does that seem rational? Clearly, radical Islam is a serious problem, but not all of Islam is. Any ban should focus on specific countries not religions.

Trump understands that Americans are scared, and he is right that we need to button-up our immigration policies; he just does so in an ineffective way. The fact is the threat to this country comes from ISIS-controlled territory in Iraq, Syria, and Libya or al-Qaeda controlled territory in Yemen and Afghanistan as well as portions of North Africa (or from Westerners who travelled and were trained in these places). The rational policy is tighten policies for all people, who either live in or have visited those countries, irrespective of their faith. That means suspending the refugee program until verification concerns noted by Obama’s FBI Director James Comey and others have been rectified. It also means altering our visa waiver program (the bipartisan Feinstein-Flake bill is a very good start) whereby a French citizen can go to Syria, develop skills to launch an attack, go back to France, and then come to the US without a visa to launch an attack here. Anyone visiting a hotbed of Islamic terror should be required to get a visa, irrespective of what country they are from and what their faith is. These policies would do far more to keep the bad guys out while avoiding the clear moral issues of blindly banning all Muslims.

Where the Trump plan totally goes off the rails is its treatment of US citizens who happen to be Muslim. Entering the country is a clear, fundamental right that Trump is depriving based on one’s religion without any probable cause. That is a blatant violation of the First Amendment right to freedom of religion. Attacking people for their faith is the domain of the left, as evidenced by their attacks on the Sisters of the Poor and Christian florists. Trump also suggested “closing” parts of the internet up. To those who would protest about freedom of speech in the first amendment, he would call them “foolish people.”

It is easy to defend constitutional rights during tranquil times, but the true mettle of one’s commitment to our ideals and freedoms shows during dire times. Trump is flunking that test, promising to shred the rights of Muslim citizens, functionally blockading them from leaving and banning them from returning, in the name of protection. Again, I ask are you more concerned about a Muslim American spending a weekend in Toronto or a detached young male who is a non-Muslim American (unaffiliated with an aid group for argument’s sake) in Syria. Freedom of religion is the quintessential American right, and we as conservatives have fought hard to protect it. To quote President Ronald Reagan from 1984: “government should not make it more difficult for Christians, Jews, Muslims, or other believing people to practice their faith.” Trump would do exactly that, and that is deplorable.

It is the nature of mankind to trade some freedoms for the hopes of safety, a natural proclivity Trump is playing to. Charlatans in the past like Senator Joe McCarthy fed off this fear. Democrats are currently using this fear in an effort to strip due process rights away from some looking to buy guns. A low point in this nation’s history was the internment of Japanese citizens where our fear led us to strip fellow citizens of their rights just because of who they were. Tragically, the Supreme Court upheld this policy in Korematsu v. US. I would point you to Justice Frank Murphy’s powerful dissent, in which he declared (emphasis my own), “But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that, under our system of law, individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”

America does not stoop to the level of our adversaries to beat them; our constitutional ideals are meaningless if we are so fickle and weak-kneed. We punish those who themselves commit wrong, not just belong to a certain group. We mustn’t repeat the tragedies of the past, by stripping rights in the supposed effort to protect ourselves. The inclination can be strong, but we must rise above it and keep our dignity for in the words of Alexis de Tocqueville, “America is great because she is good. If America ceases to be good, America will cease to be great.” We must stand united against this irrational, ineffectual, and unconstitutional policy.

Republicans and conservatives need to stand up to Trump’s divisive rhetoric. We have worked hard for years to make clear we are at war with Radical Islam but not all of Islam; in fact, we need moderate Muslim leaders themselves to stand against radicals. Trump’s plan lumps in all Muslims, threatening to undo this work. It also makes it easier for Democrats, hobbled by slavish political correctness, to avoid the term Radical Islam. Some on the left will also undoubtedly use the Trump plan to marginalize other GOP plans on refugees (like the House bill) as racist and not as the much needed reform they are.

After clearly going past the line (if he hadn’t already), it is now easy to dismiss Trump as the problem whereas he is really the symptom of a bigger problem. An increasing portion of the American public, particularly the working class, feels disenfranchised. The whole public is scared; prior to the San Bernardino terror attack, only 33% of Americans approved of Obama’s handling of ISIS, and only 38% approved of his handling of terrorism (from CNN-ORC). Obama’s consistent dismissal of ISIS has perhaps irreversibly damaged his credibility on national security. Trump’s tough talk is reassuring, even if the underlying policies aren’t feasible.

By the same token, the Republican Party has been an abject failure when it comes to explaining how its policies will help the working class, perhaps because much of its donors are corporatist Wall Streeters. In 2012, Mitt Romney lost voters whose top issue was having a President “who cares about people like me” by a stunning 81-18% margin. He never articulated how his policies would help ordinary, working Americans. At this point, no serious Republican Presidential contender, apart from Trump, have made a serious stride in this area (though Rubio has been trying harder than others, and hopefully, Paul Ryan will be a thought leader in this area). Perhaps recognizing this country has shed 5 million manufacturing jobs in 20 years, hurting millions of Americans, Trump has pledged to go after China and Mexico. Will these policies work? Not necessarily, but he at least provides the illusion of caring.

For many Americans, the past 20 years have been hard. While Clinton oversaw an economic expansion, manufacturing sputtered in his second term and his foreign policy left us less safe. While Bush’s ability to keep us safe after 9/11 is a tremendous accomplishment, his economic policy is mixed and he is not blameless for the financial crisis. Under Obama, our record has been tepid with inequality worsening while his dithering in the Middle East has left us more unsafe. The establishment and mainstream political parties have failed many Americans, and it is no wonder they have looked elsewhere, to someone out of the political class addressing their security and economic concerns, Donald Trump.

That is why the efforts to marginalize Trump based on his egregious rhetoric have failed spectacularly. The establishment is pointing out to voters what the establishment doesn’t like, but these voters have lost faith in the establishment because it has failed to deliver for them. The only way to attack Trump is to effectively argue he, one of the world’s greatest marketers, is selling a false bill of goods and won’t deliver. Someone must also step up and detail an economic vision that re-enfranchises a middle and working class that has been left behind.

Until then, we are destined to hear this self-aggrandizing candidate offer more unserious if not offensive plans while his poll numbers likely stay high. Trump’s anti-Muslim ban runs counter to the values we espouse and would be a dangerous degradation of constitutional rights. This has to be the impetus for other candidates to actually offer plans that will bring the middle and working classes into the fold. Unless someone else offers a compelling vision to these voters, the Trump phenomenon isn’t going away, no matter what he says.

Demagoguery and Destroying Due Process Won’t Solve Gun Violence

After the horrifying murders in San Bernardino Tuesday and Colorado Springs last Friday, democrats are following the advice of former Obama Chief of Staff and current Chicago Mayor Rahm Emanuel: never let a “serious crisis go to waste.” Emanuel, of course, is so morally bankrupt he apparently slowed an investigation into the death of an African-American teenager at the hands of a Police Officer to preserve his re-election chances. Sensing political advantage, democrats are out in full force, attacking republicans, demonizing those who pray for shooting victims, and urging new laws irrespective of their efficacy. They have entered full “do something for the sake of doing something even if it achieves nothing” mode while poisoning our political discourse, thereby making it harder to actually solve the problem of gun violence.

Make no mistake, gun violence is a serious problem. However, we should note that gun crimes have been halved since the early 1990’s while violent crime is back to 1970’s levels. I say this not to diminish current violence, which remains intolerably high, but to provide context as facts tend to improve the quality of solutions put forth. Even though we are safer than ever before, we are averaging roughly 1 mass shooting (the FBI defines a mass shooting as 4+ victims; depending on definition parameters, there have been anywhere from 70 to 355 “mass shootings” this year) per day. Yet for many, it feels as though violence has escalated to unprecedented levels in recent years. For this, I would point to the proliferation of social media and 24-hour news channels, which make us far more aware of these acts of violence. On net, this is a good thing as the constant reminder of human suffering will hopefully further our resolve in solving the underlying problems that beget such violence. Sadly, some, typically but not exclusively, on the left exploit these tragedies to whip up a frenzy, divide us, and all but suggest the NRA’s millions of members are callous, blood-thirsty monsters.

Sensing an opportunity to feed off Americans’ heartbreak, Democrats are pushing reforms that would do little to stop gun violence and severely undermine Americans’ fundamental rights. Let’s focus on Senator Dianne Feinstein’s proposed amendment (supported wholeheartedly by Obama and Senator Harry Reid) to block Americans on the Terror Watch List from purchasing guns. Republicans kept this proposal from becoming law by a vote of 45-54. Now, one does not need to have much political acumen to recognize the Feinstein proposal would poll extremely well (my bet would be 90-10 or better initially); after all, who wants terrorists to get guns? However, the facts are a bit more complicated, and strong polling doesn’t make it wise policy.

For perspective, the terror watch list likely contains the names of about 1 million Americans. I would note that the Terror watch list is far more encompassing than the No-Fly list, which includes about 800 Americans. In the past even The Huffington Post has ridiculed the relative ease with which one could get on the terror watch list, and I would emphasize authorities merely need “reasonable suspicion” to put someone on the list. This is a different, lower standard than the one our system of due process demands in criminal cases (beyond any reasonable doubt). That is critical because the Feinstein proposal would strip Americans of a fundamental right without affording them due process. (As an aside, democrats blocked Sen. John Cornyn’s amendment that would have given authorities 72 hours to ask a court to block a gun sale to someone on the watch list thereby preserving due process while achieving what democrats wanted. I will leave you to decide whether the left was interested in merely scoring political points or in solving the problem.)

Our constitutional architecture affords the preservation of Americans’ fundamental rights, which we may only be deprived of with “due process of law.” The Supreme Court reaffirmed that individuals have a fundamental right to bear arms in 2008’s DC v. Heller. Due process includes things like facing one’s accuser, having a jury of peers, the presumption of innocence, and so on. The Feinstein bill undermines this basic tenet of our Republic. I ask:

  1. Should the government be allowed to do warrantless searches of Americans on the Watch List whenever and wherever it wants?
  2. Should the government be allowed to regulate the speech of those on the Watch List or bar members from associating with certain other people?
  3. Should the government be allowed to proactively detain people on the Watch List for indeterminate periods of time?

I expect (and certainly hope) you would answer “no” to all these questions. Even though we want to stop suspected terrorists, we as a society recognize that fundamental rights are sacrosanct, and abridging them is very serious (and dangerous). As such, we afford suspects a fair legal process that puts the burden on the government to prove its case in a court of law before punishing the accused. There are times that our nation has grown emotional and forgotten this system, and it has been a stain on our history. In particular, I point to the internment of Japanese-Americans, violating their fundamental rights without due process. Shamefully, the Supreme Court upheld internment in Korematsu v. US. That decision, along with Dred Scott and Plessy, still impugns the reputation of our highest court.

I do not think the Feinstein proposal, had it been enacted, would ever be so damning as Korematsu, but violating fundamental rights has virtually never looked wise in hindsight. Some undoubtedly have the greater good in mind in their support of this proposal, but sadly, in no cause has more harm been done that of the greater good. Such thinking too often descends into an “ends justify the means philosophy” that airbrushes increasingly grievous wrongs in the name of safety, supposed equality, or other catchy slogans (“workers of the world unite”…). The fact is that gun ownership is a fundamental right, and stripping such rights is anathema to our values.

Yes, those on the Watch List can appeal to get off it, but this is an individual, presumed guilty, attempting to prove innocence, throwing the basic tenet of our justice system on its head. Further, the threshold for being on the watch list is lower for being convicted of a crime, making it even harder for individuals to get off the list. We afford accused murders with far greater protections than people on this list (who can include the relatives of suspected terrorists whom have not engaged in radical activities themselves). That is unjust.

We also must reject the notion that if we don’t let someone fly on a plane we shouldn’t let them own a gun (though again I emphasize the no fly list is a small subset of the watch list. We allow most on the watch list to fly, albeit with stricter scrutiny). While again I see the appeal of the argument, there is a key distinction. Flying on planes is not a fundamental right; it is a privilege, giving the government far more latitude to regulate who flies. It is similar to how states only allow licensed individuals to drive, requiring people to pass a driving and eyesight test. These are not fundamental rights, like gun ownership, religious freedom, undue searches etc. Rather than facing strict scrutiny, the government only needs a rational basis to deny a license or keep someone from flying. Comparing guns to planes, while appealing, is ultimately flawed legally.

In reality, many on the left don’t believe gun ownership should be a fundamental right, and they push policies like this one to degrade its status over time. Let’s be honest, and have the real debate, not one that appeals to emotions during times of duress but has severe legal consequences. Let’s discuss whether we should leave the constitution as is or roll back the 2nd amendment and make gun ownership a privilege like riding an airplane. Many on the right would welcome this debate, and we should have all-encompassing discussions on guns, the acceptance of violence in society, and mental health. It is the left, which knows deep down most Americans don’t want to repeal the 2nd amendment, that is avoiding this debate.

Instead, it finds back doors that actually would not do much to solve the underlying problem to score political points and feel better since they will have done something (even if that something does not solve the problem). The Feinstein amendment would place an undue burden on Americans wrongly on the watch list, probably numbering in the tens of thousands, while likely failing to deter terrorists. Do we seriously believe someone willing to die for a depraved, hateful cause will give up and turn away from violence if they can’t buy a gun, or will they look to the black market, use our porous borders to smuggle weapons, or build improvised explosives?

If democrats were so serious about solving the issue of gun violence, why didn’t they address it via sweeping reform when Obama was President and they controlled both chambers of congress? The level of violence in this country is still unacceptable, and we all bear some blame for not doing more to help the mentally ill, the economically hopeless, and to build a culture that shuns violence. We need to get serious about these issues, but in our haste, we must remember the civil liberties on which this nation was founded and avoid the temptation to undermine fundamental rights in the name of the greater good.

There are things we can do to help the mentally ill, give doctors more power to treat, improve background checks (and unlike most conservatives I would personally support the thrust of Manchin-Toomey to close the private sale transfer, though almost no mass shootings have been committed by people using this “loophole”), and stiffen penalties for those who traffic weapons.

Maliciously attacking those who pray for the grieving will not solve the problem. Nor will pushing constitutionally doomed legislation to score political points. Rather than restricting the rights of law-abiding citizens, let’s focus on solving real problems. Over-riding due process is not the solution. It rarely, if ever, is.

What Happened to Optimistic Conservatism

Over the past week, we have witnessed the Obama Presidency collapse upon itself. From the attacks in Paris showcasing how we have underestimated ISIS, to the fact Iran has increased its stockpile of enriched uranium since agreeing to the nuclear deal, to UnitedHeath considering exiting Obamacare exchanges due to massive losses. Even a key Obamacare architect concedes the insurance plans stink and that costs haven’t been controlled. All the while, Obama, the man who ran promising to end the politics of old and unify the country, has taken his rhetoric to new lows, suggesting Republicans are ISIS recruiters while dismissing a terrorist attacks as a “setback.” The President apparently thinks failings are due to the fact the office of the Presidency “is weak.” A more likely explanation? The man in the office is weak.

In 2016, the Democrats will almost certainly put forth Hillary Clinton who helped architect our naïve and misguided foreign policy that is in total ruin. On top of this, her forthrightness on the issues leaves just a bit to be desired. Given failed policies and the historical challenges of winning three straight terms, 2016 should be a prime opportunity for conservatives to retake the White House and set the country back on a proper trajectory. Polls this far in advance are of little import but show a close and very winnable race, yet I fear there is increasing reason to be worried that once again we will steal defeat from the jaws of victory.

Before your eyes glaze over in anticipation of reading the 14,714th piece on how the GOP needs to do better with Hispanics or women, that is not my focus (either you agree or disagree with that argument, nothing I say will sway you). My concern is more fundamental. The republican electorate is increasingly pessimistic about the future of the country. Conservativism is an innately optimistic political philosophy, and we need to instill optimism if we are going to win. Yet according to the Public Religion Research Institute (in a poll of 2,700), only 41% of republicans and 33% of Tea Party members think America’s best days are ahead of us.

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Clearly, the disaster that is the Obama Presidency is weighing on sentiment, and that isn’t surprising; voters’ anger is palpable. At the same time, republican candidates can’t merely play into this pessimism; they need to offer a compelling and hopeful vision about the future. This was a key failure (there were several) in Mitt Romney’s 2012 campaign. While he prosecuted the case against Obama well, he did not articulate what he would do going forward in a compelling fashion (which boggles the mind given how gifted his running mate, Paul Ryan, is at doing precisely that). It is a fatal error to take a pessimistic tone to voters because it is at odds with our beliefs. Liberals are pessimists at heart, though Obama did a masterful job in 2008 portraying himself as an optimist, helping win the nomination and cruise to the Presidency. I would argue that ultimately voters, even angry ones, want to believe better days for the nation are ahead. To give this ground is mistaken, particularly when our future actually is bright. Saying better days are ahead isn’t merely wise politics, it happens to be the truth! We are too great a nation to accept inevitable decline.

To be conservative is to believe that power and decision-making is best left in the hands of individuals through lower taxation, less regulation, and local control. In other words, we think ordinary people make better decisions than a bunch of so-called experts in a centralized bureaucracy, which implies a positive view of the competence and judgment of people. To support more control at a centralized level, as liberals propose, suggests they don’t trust the public to make decisions. Generally, one thinks less of a person whom one does not trust. This dichotomy is the core disagreement between liberalism and conservatism: do you put your faith in people of bureaucracy? Whether you have a positive or negative view of the public’s competence is a driver of your answer. If you have confidence in the public (as conservatives inherently do), it is then questionable to think the nation’s best days are in the rear view mirror.

This optimist/pessimist divide permeates further. Liberals are now obsessively focused with income inequality. They have all but written off attempts to grow the pie and are laser-focused on re-slicing it. They see an America that can’t be the global leader (heck, Hillary Clinton doesn’t even think the US should lead the fight against ISIS), as though our time as a Super Power able to roll back the evil of communism was a mere flash in the pan, destined to burn out. The core of the democratic platform is basically: we can’t grow so let’s take from the rich to help the poor and abdicate global leadership. This is the platform of people who think America’s best days are behind it. It is also the path of Europe, which chose to enter blissful decline 40 years ago (though it is now realizing that decline isn’t so blissful when debts are high and innovation lacking) and is now on a path to irrelevance in global affairs.

It is still early, but republican candidates have not done a particularly good job laying out an optimistic vision. Much of this is due to the Donald Trump phenomenon. He spends much of his time tearing down opponents, and his policy statements are negative like “wages [are] too high” or “the American dream is dead” (both from the Fox Business Debate…Trump has subsequently claimed he was only speaking to the minimum wage, though he repeated the wage line elsewhere). The recent controversy over a national Muslim registry shows a candidate who plays to our worst fears rather than our greater aspirations. Given multiple chances to walk back that statement, Trump continues to suggest an openness to it, most recently on This Week. Let’s be clear: rounding up and registering people of a certain faith isn’t conservative, it is evil, cruel, and fascist. For a candidate pledging to “make America great again,” it would be hard to argue Trump has run a hopeful, optimistic campaign, and in the process, he has lowered the discourse in our primary debate. I would suggest other candidates like Ted Cruz have let anger overwhelm optimism, and many who are supposed optimists like Jeb Bush come across as impotent. In fairness, Marco Rubio has been the candidate who has done the best job in the field laying out an optimistic vision for the country.

In particular, he has turned the immigration issue on its head to prove the greatness of the country. From The O’Reilly Factor: “I think America is great. You know how I know it’s great? You don’t have American refugees winding up on the shores of other countries. You actually have people wanting their children born here. America is a great country. The issue is: We could be even greater. We are not fulfilling our potential.” Conservatives everywhere should copy this down.

Now, admittedly, it can be challenging to put forth an optimistic vision when the other party is in control because if things are going so great, you should stick with them. There is a necessary balancing between saying things not being great today but have the capacity to be great in the not too distant future. There is a nuance to it that can be lost in a news cycle obsessed with 30 second soundbites. While I caution republicans from discussing the Reagan legacy too much since most Americans did not vote in the 1980 election (it was 35 year ago), there are lessons in his rhetoric that are still applicable. He succinctly framed all elections in one simple question: “Are you better off than you were four years ago?” This is an excerpt of his answer in that debate with President Carter (emphasis my own):

This country doesn’t have to be in the shape that it is in. We do not have to go on sharing in scarcity with the country getting worse off, with unemployment growing. We talk about the unemployment lines. If all of the unemployed today were in a single line allowing two feet for each of them, that line would reach from New York City to Los Angeles, California. All of this can be cured and all of it can be solved…I would like to have a crusade today, and I would like to lead that crusade with your help. And it would be one to take Government off the backs of the great people of this country, and turn you loose again to do those things that I know you can do so well, because you did them and made this country great. Thank you.

Reagan’s campaign was predicated on the argument the American people were great, and it was the government holding them back. By rolling back government and freeing the public from the shackles of high taxes, regulation and inflation, the country would flourish again. His was a campaign of hope not hatred, appealing to the intrinsic decency and aspiration of every individual. It was a theme he expounded upon in his Inaugural Address (emphasis added):

It is no coincidence that our present troubles parallel and are proportionate to the intervention and intrusion in our lives that result from unnecessary and excessive growth of government. It is time for us to realize that we’re too great a nation to limit ourselves to small dreams. We’re not, as some would have us believe, doomed to an inevitable decline. I do not believe in a fate that will fall on us no matter what we do. I do believe in a fate that will fall on us if we do nothing. So, with all the creative energy at our command, let us begin an era of national renewal. Let us renew our determination, our courage, and our strength. And let us renew our faith and our hope.

We have every right to dream heroic dreams. Those who say that we’re in a time when there are not heroes, they just don’t know where to look. You can see heroes every day going in and out of factory gates. Others, a handful in number, produce enough food to feed all of us and then the world beyond. You meet heroes across a counter, and they’re on both sides of that counter. There are entrepreneurs with faith in themselves and faith in an idea who create new jobs, new wealth and opportunity. They’re individuals and families whose taxes support the government and whose voluntary gifts support church, charity, culture, art, and education. Their patriotism is quiet, but deep. Their values sustain our national life.

Now, I have used the words “they” and “their” in speaking of these heroes. I could say “you” and “your,” because I’m addressing the heroes of whom I speak — you, the citizens of this blessed land. Your dreams, your hopes, your goals are going to be the dreams, the hopes, and the goals of this administration, so help me God.

This optimism and unyielding faith in American public was the cornerstone of Reagan’s political philosophy and career. It is only fitting that in his final remarks to a Republican Convention in 1992, he poetically ratified this political doctrine (emphasis added):

A fellow named James Allen once wrote in his diary, “Many thinking people believe America has seen its best days.” He wrote that July 26, 1775. There are still those who believe America is weakening; that our glory was the brief flash of time called the 20th Century; that ours was a burst of greatness too bright and brilliant to sustain; that America’s purpose is past.

My friends, I utterly reject those views. That’s not the America we know. We were meant to be masters of destiny, not victims of fate. Who among us would trade America’s future for that of any other country in the world? And who could possibly have so little faith in our America that they would trade our tomorrows for our yesterdays?

Republican candidates and pundits can spend so much time waxing nostalgically about the Reagan era it can feel like they would trade our future for our past. This tendency, coupled with such an angry, divisive campaign, can leave people thinking the best is behind us, especially considering the crumbling of the Obama Presidency we are witnessing. This is a problem, and we will not win if we cannot put forward a credible and compelling vision for the country. Unfortunately, we are constantly sidetracked by the boorish shenanigans of Trump who is either lobbing insults, threatening to sue, or more recently maligning Muslims. We are a movement that believes in Shining Cities not Gestapos, and he is a charlatan masquerading as a conservative. We need to start aggressively calling him out for it.

Democrats have mastered identity politics, dividing voters against each other to cobble together winning coalitions. To combat this, republicans shouldn’t try to beat them at their own game but offer a unifying message, which is more constructive when it comes to actually governing. Rather than betting on government to manage the decline, I want to bet on the public to make this a better country. It has been a winning bet for over two centuries, and while we are suffering from abject incompetence in the White House, I see no reason to stop placing this bet. Where are the world’s greatest new companies from Facebook to Uber built? What country has the most hard-working, innovative citizenry? What country serves as the inspiration for the oppressed in the world? The questions can go on and on, but the answer remains the same: the United States.

Do we have challenges? Obviously, from a broken entitlement system to stagnant wages to an aggressive China and resurgent Russia. These challenges are not unusually grave, and we are better positioned than any other country on the earth with a better mix of personal freedom, economic ingenuity, military might, and demographics than any other nation. Without a shadow of a doubt, our best days are ahead of us. Decline is a choice not a sentence. Conservatives need to renew our faith in the future of the country. There is no reason for 58% of republican voters to feel like our best days are behind us. That is a failure of our political leadership to lay out a compelling vision. We need to move away from angry rhetoric, rebuke Trump’s asinine assertions, and once again explain our faith in the American people and how returning money and power to them can undo the damage Obama has done.

Pessimistic conservatism is a non-starter and ideologically inconsistent. We can express anger at the failings of the Obama/Clinton policies while also pivoting to an optimistic agenda that ensures brighter days are ahead. It’s the only way to win.