Is Shrinking The Government A Lost Cause?

The modern expansion of the federal government has been proceeding in fits and starts, since the presidency of Franklin Roosevelt in the 1930’s. Some presidents—and it has nearly always taken presidential action to successfully resist the encroachment of government—have been more successful at slowing the growth of government than others. But it seems as if none, in the eighty years since Roosevelt took office, have been able to reverse this expansion. Ronald Reagan was a particularly successful conservative president, but even he on managed to slow the tide. The Department of Education, newly formed under Jimmy Carter, survives to this day. In recent years, conservatives hoped that unified Republican control of government would bring a full repeal of Obamacare, marking the first time in American history that an entitlement program had been successfully rolled back after its enactment. But now, even a partial repeal faces an uphill battle in Congress.

It’s enough to make any conservative give up on politics in anger and despair. It’s a depressing thought, that even though we can still win some isolated victories at the state and federal level, the march of liberal ideas could inexorably continue through Congress and the general public. But there are a couple of positive thoughts that should be remembered, as well.

First, fighting to reduce the size of government is simply the right thing to do. It helps to ensure the security and freedom of all American citizens, both present and future. On that basis alone, the fight should never be abandoned, because the stakes are too great.

And second, if the past few years have taught us anything, it is that no one can possibly imagine what the future will bring. Today’s setbacks become tomorrow’s opportunities, and there is no single “arc of history” bending toward a predetermined endpoint, as much as Barack Obama would like us to believe otherwise. The odds of a large-scale rolling back of the federal government, and restoration of the Constitution, may seem bleak at times, but neither success nor defeat is ever guaranteed. It is up to conservatives to make sure that no chance at liberty is ever wasted, and remember that no victory, however small, is worthless.

Policy Spotlight: Eminent Domain

As one of a number of important issues that nevertheless get little of the attention they deserve, the subject of eminent domain has long been one of the most neglected subjects in political debates. Yet for all of its relative obscurity, the issue is one which could most directly affect the average voter, as it governs under what circumstances the government is able to seize private property for public use (with "just compensation" to the owner), a power necessary to some degree for the smooth functioning of any government, but one that could be easily abused.

The most recent major Supreme Court decision regarding eminent domain was handed down in the 2005 Kelo v. City of New London decision, which dealt with the federal power of eminent domain (governed under the Takings Clause of the Fifth Amendment). A key distinction and argument over the precise meaning of the Takings Clause gained prominence through the Kelo decision: what constitutes "public use"? A valid exercise of eminent domain has always been understood to encompass infrastructure projects such as highways and other public works, but whether the power could constitutionally be used by the government to take property which would then be turned over to private developers is another question entirely. Does a shopping mall—or, as was at issue in Kelo, a pharmaceutical research facility—satisfy the definition of "public use", since it would provide goods and services to the public and create jobs; or would it not, since the property would still be privately owned, use of a shopping mall is much more voluntary than of a highway, and unlike highways, a mall is sustained entirely through the private transactions of voluntary customers?

In the Kelo decision, the debate over what truly constitutes public use or property split into rival liberal and conservative opinions. Four conservative justices—Rehnquist, Scalia, Thomas, and Sandra Day O'Connor, who had authored a previous liberal eminent domain opinion for the Court—argued that it was unlawful for the government to exercise the power of eminent domain only to then turn the property over for private use. Meanwhile, Anthony Kennedy joined with the Court's four liberals in the majority opinion, authored by John Paul Stevens, holding such an exercise of eminent domain to be constitutional.

Since 2005, the Court has heard only one case of any significance regarding the Takings Clause, a decision last year which dealt with what could properly be considered "just compensation", but since the Kelo decision, the primary argument in conservative legal circles has continued to center around the proper definition of "public use". A major future conservative victory on the Court, which would nonetheless probably go unnoticed by the vast majority of the public, would be to one day overturn the Kelo decision—limiting governmental power to more closely mirror the precise wording and intent of the Fifth Amendment. It would not be an exaggeration to argue that such a victory would be overshadowed only by the overturning of Roe v. Wade in substance and long-term impact, and as with that decision, opposition to Kelo should be an aspect of every potential Supreme Court nominee's overarching judicial philosophy.

Who Should Be Trump's Next Supreme Court Nominee?

Yesterday I offered some speculation about future vacancies on the Supreme Court, and the way Trump’s nominations to fill those vacancies could impact the ideological balance of the Court. Today, I wanted to briefly discuss the specific kind of person Trump should name to the Court.

The obvious example for Trump to follow in choosing a future nominee is now-Justice Neil Gorsuch. The Gorsuch nomination was universally well-received by the Right on its announcement, and Gorsuch satisfied all three of the criteria vital to a successful Trump Supreme Court pick—ideology, age, and placement on the Trump campaign’s list of possible nominees. A potential second pick should fit those three criteria just as well.

The most important qualification will obviously be that of judicial philosophy, and the vetting process should actively seek out every available piece of evidence to determine how each potential nominee feels about past major cases, as well as issues such as federalism, separation of powers, and an expansive versus originalist view of the Constitution. This attention to detail is particularly important in light of the recent history of Republican judicial nominees, and their varying degrees of adherence to the original meaning and text of the Constitution. For every Clarence Thomas, Samuel Alito, and Neil Gorsuch nominated to the Court, there has been an Anthony Kennedy, David Souter, or John Roberts.

The age factor is perhaps the most underappreciated of the many that go into determining who the next Supreme Court justice might be, but it is also one of the most important, and Trump should nominate someone who is in their 50's or even 40's, and could be expected to serve on the Court for many years to come. Again, Gorsuch should be the model here—at 49, he is by far the youngest Justice currently on the Court, and absent any unforeseen circumstances should still be capable of deciding cases twenty or even thirty years from now.

Finally, Trump should choose a nominee from the list of possible Supreme Court appointments he released during the campaign. That list provided a guarantee that the nominee would be a reliable conservative, and was a key campaign promise. Though it was understood at the time to primarily apply to the vacancy created by the death of Antonin Scalia, Trump also said that he would use the list to choose future nominees as well, should further vacancies arise during his time in office.  The list is replete with individuals who would make fantastic Supreme Court justices, and it would be a mistake for Trump to begin the process of selecting a second nominee by looking anywhere else.

We Need A Domestic Freedom Agenda

Every week seems to bring another example of assaults upon core American freedoms. Riots on college campuses across the country shut down guest speakers, and silence opposing viewpoints. Christian bakers and florists who believe in a traditional definition of marriage are forced to service gay weddings, or be faced with fines, prison time, and the loss of their businesses and livelihood. In the name of safety and security, the government continually attempts to impose new restrictions on gun ownership by law-abiding citizens, and obtain personal data on millions of ordinary Americans.

It is a common refrain that the Constitution and its core tenets and ideals are under assault—so common that it may not seem all that serious. But it is happening, and the number of such assaults has only increased in recent years. Democrats carry much of the blame for many of these incidents, but it would be a mistake to think of the offenses as anything other than bipartisan in nature.

Responses to these attacks have too often been reactionary and disjointed in nature. That must change if conservatives are going to have any lasting success. It is not enough to simply win limited victories each time a new case or issue emerges.

What we need is an action plan, an agenda. A set of definitive legislative priorities that can be used to proactively combat the rising tide of anti-Constitutionalism in America today. The Bush administration was known for pursuing a “Freedom Agenda” overseas, promoting democracy and human rights in places such as Iraq and Afghanistan. This “domestic Freedom Agenda” would restore and strengthen similar ideals here at home.

It cannot be enough to merely focus on the battle of the moment. If conservatives are to win lasting victories, we must focus on the bigger picture.

Policy Spotlight: Term Limits

“Term limits are the first step towards reforming Capitol Hill. Eliminating the political elite and infusing Washington with new blood will restore the citizen legislature that our Founding Fathers envisioned. The American people have called for increased accountability and we must deliver.”

—Representative Ron DeSantis (R-FL), 1/3/17, on the introduction of the Cruz-DeSantis Term Limits Constitutional Amendment in Congress

The idea of term limits in national American politics has a long and complicated history. The Framers of the Constitution, after much debate, eventually decided not to include term limits for members of Congress and the President, preferring instead regular elections and self-imposed limits by citizen legislators. Following Franklin Roosevelt’s unprecedented four terms as President, Congress and the states approved the 22^nd Amendment to the Constitution, limiting the President to two terms.

A groundswell of support for Congressional term limits in the 1980’s and 1990’s led to several states attempting to impose term limits on their own federal lawmakers, which were in turn struck down by the Supreme Court as unconstitutional in U.S. Term Limits, Inc. v. Thornton. The ruling held that only a constitutional amendment could require term limits, a precedent set by the 22^nd Amendment. In response, Congress voted on, and narrowly failed to approve, an amendment mandating term limits. Since then, the public’s interest in term limits has surged several times, but in general the status quo has remained in place.

This is unfortunate. Opponents of term limits do their best to argue the merits of an unpopular opinion, and some of those arguments make sense—the need, for instance, of legislators to accumulate experience and seniority if they are to be truly successful at aiding their constituents. Experience is always a useful thing to have, to some degree. But its importance can also be overstated, which is what generally happens when making the case against term limits. With an able staff, a new senator or congressman should be able to learn the ropes and start making a difference in short order—if the institutional requirement of seniority, perpetuated by politicians who have been in office for decades, don’t stand in his way, that is.

But perhaps the most important factor when discussing term limits is the culture of power, money, and influence that pervades Washington. Even the most well-intentioned candidates for office can easily be seduced into abandoning their principles by the temptations that lurk in every back corridor in the capital. The best way of ensuring those candidates don’t lose their way is by putting them on notice, from before they even arrive in Washington, that their days facing temptation are numbered.

The Framers, after much debate, rejected mandating term limits, believing that the best term limit was the will of the people, exercised through competitive elections. But in this they may have been mistaken, by underestimating the way in which the rise of major political parties would make so many races uncompetitive—and by how long tenures in office would make incumbents less and less likely to be unseated by their constituents. The amendment process was built into the Constitution because the Framers knew they were not infallible. It is a power that should be used judiciously, but in the case of Congressional term limits, one vital to restoring accountability and good government in the federal government.

Birthright Citizenship Needs To Go

Under the current interpretation of constitutional law, every individual born within the United States is automatically entitled to full U.S. citizenship. This applies equally to the children of American citizens, legal immigrants, and illegal immigrants. If aliens landed in Montana and had a child, that child would presumably be entitled to birthright citizenship, as well.

This is a profoundly bad policy. More importantly, despite liberal arguments to the contrary, birthright citizenship is nowhere mandated in the Constitution. Formally changing the policy would therefore require nothing more than a simple act of Congress.

Arguments that birthright citizenship is constitutionally mandated can be traced back to a single section of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Sounds pretty straightforward, right? If you’re born here, you’re a citizen.

But it is the qualifying phrase, “and subject to the jurisdiction thereof”, that liberals routinely forget about or ignore outright. Merely being born in American territory, according to the Fourteenth Amendment, is not enough. You must also be in compliance with federal law. Illegal immigrants, by definition, are in the country illegally and are therefore in violation of federal immigration law. Hence, their children are not constitutionally required to receive citizenship upon birth.

This is not to say the current regime of granting citizenship to every child of illegal immigrants is unconstitutional. The Fourteenth Amendment sets a mandatory minimum, as it were, for citizenship. Congress, if it wanted to, could pass a law granting full U.S. citizenship to every person on the planet. But just because something is constitutional does not make it good policy.

Furthermore, the Supreme Court has several times held that birthright citizenship, of the kind currently encoded in federal law, is not constitutionally mandated. In 1884, the Supreme Court held in Elk v. Wilkins that Indians could not claim birthright citizenship as the tribes were considered independent political entities not "subject to the jurisdiction" of the United States, thereby requiring additional passage of the Indian Citizenship Act of 1924. In 1898, the Court held in U.S. v. Wong Kim Ark that a child born to immigrant parents in the United States was automatically conferred citizenship under the 14th Amendment, a fact often cited by modern proponents of birthright citizenship—however, what those proponents fail to mention is that the parents in that case were legal immigrants, “subject to the jurisdiction” of both the United States and California, a fact expressly cited in the Court's opinion.

Birthright citizenship was not discussed again by the Supreme Court until 1982, when Justice William Brennan used a single sentence in an opinion footnote to state his belief that birthright citizenship was constitutionally required.

Birthright citizenship as it is currently defined is bad policy, granting blanket U.S. citizenship privileges to thousands of illegal immigrants who have no respect for American institutions or ideals of liberty and limited government. If Congress wants to solve the problem, the time is now. Enough blaming other branches of government for the current mess.

Campaign Finance Reform Versus The First Amendment

The way you spend your money says something about you as a person. You make a statement every time you go to the grocery store and buy certain products, or go to the movie theater and choose to see one movie over another. Even if you ever say a word about the products you bought at the store, or give a review of the movie to friends and family, you speak through your purchases. Most people understand this.

The principle is the same when it comes to politics—if anything, it is even more accurate. It is possible to buy a product or spend money to see a movie once, just to see if you like it. But no one ever gives money to a politician or political cause simply to “see if they like it”. If I donate money to Ted Cruz’s reelection campaign, or to the Senate Conservatives Fund, or to Planned Parenthood for that matter, I am expressing my true beliefs in those particular causes. Hence the term, “putting your money where your mouth is.”

But that is exactly what most proposals for campaign finance reform seek to limit. By having individual spending limits, and byzantine restrictions on how private individuals can spend their own money on worthwhile political causes, the federal government is essentially restricting the constitutional guarantee to freedom of speech.

And yes, corporations are people too. What is a corporation, after all, but a group of people? American citizens do not suddenly lose their constitutional rights when they gather.

Obviously, political campaigns are a trillion-dollar industry. In any such industry, there must be at least a few general rules and regulations to protect the integrity of the process. But limiting individual contributions to $2,700 per federal campaign? $5,000 per year to a political action committee? Many people, myself included, would never dream of donating that much to any political cause. But that is not for the government to decide. If one is looking to ensure the strength of the First Amendment’s free speech clause, then targeting so-called campaign finance laws would seem a good place to start.

Religious Liberty in the Twenty-First Century

Eighty-four percent of Americans identify as Christians of one form or another, but you wouldn’t know it from the coverage many Christians receive in the mainstream media, or the often scornful attitude toward traditional Christian beliefs expressed by the previous administration. Opponents of abortion are portrayed as against personal health and women’s choice. Opposition to gay marriage is painted as the spiritual successor to Jim Crow. Catholic nuns are told by the government that they must provide free contraceptive coverage to their employees or be punished. And in some liberal enclaves, local governments are even demanding copies of ministers’ sermons, in order to be analyzed for disagreeable content.

One of the greatest emerging issues the Supreme Court faces today is in the realm of religious liberty. In this area, recent history is mixed. On the one hand, the current Court has shown itself to be a friend of the First Amendment and freedom of expression, and took a dim view of arguments advanced by the Obama administration that elderly nuns should be forced to grant free access to contraceptives. At the same time, in Obergefell v. Hodges the Court sided with liberals in unilaterally declaring a national constitutional right to same-sex marriage, and opened the door to discrimination against a variety of religious groups who believed differently.

All this means that the appointment of judges committed to the full text and meaning of the First Amendment’s guarantee of religious freedom is of preeminent importance. Judge Gorsuch, fortunately, has a record when it comes to such issues. But the chances are high that Trump will get at least one more appointment to the Supreme Court in his first term, and it is vital that more judges like Gorsuch are appointed—no matter the identity of the judge or judges retiring.

I mentioned Christians specifically at the top of this post, because it is their beliefs most frequently under assault today. But the First Amendment applies equally to all beliefs and religions, and does not single any one out for special protection or prosecution. Muslims, Jews, and Sikhs deserve no fewer protections to practice their beliefs openly than do Christians—but no greater protections, either. The courts would do well to remember that fact.

The Supreme Court and the Second Amendment

The Second Amendment is, without question, the most infamous and vilified section of the Constitution today. Ask ten random people on the street to name what is discussed in Article I, Section 8, or the 21^st Amendment, or the 10^th Amendment, and most will stare at you blankly. But ask about the Second Amendment, and the majority of those same ten will likely know: “right to bear arms.”

It is under assault today—this many conservatives know. What they may not understand are the ways in which this assault directly relates to the Supreme Court. Until the landmark rulings of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), there was no major Supreme Court ruling, in at least the past fifty years, which protected an individual’s right to bear arms. The Second Amendment was, in many legal circles, a dead letter, a law still technically on the books but no longer enforced or taken very seriously by anyone of consequence.

Then came the legal battles that eventually culminated in the Heller and Chicago decisions. Democrats were scandalized—but unlike other major decisions, from Roe v. Wade to Citizens United, they could not easily take a firm, united stand on the issue. The simple fact is that, whereas Americans are divided on abortion and suspicious of large corporations, they by and large love their guns. For hunting, for self-defense, for any other legal and ethical purpose for which Americans have been using guns for centuries. So Democratic opposition to the rulings had to be disguised, or at least toned down. Democratic Senators like Harry Reid needed to protect their favorable NRA ratings.

Under liberal pressure in the years since, that disguise has gradually been dropping. Hillary Clinton said in a debate last October that the she opposed the Heller decision because it made toddlers more likely to shoot themselves.

This was, obviously, nonsense. But it underscores how the gains of the last few years might be put at risk by the confirmation of just one additional liberal judge to the Supreme Court. Just as conservatives want to see Roe v. Wade overturned, so too do many liberals dream of the Heller and McDonald decisions also being overturned, and the Supreme Court declaring that the Second Amendment only applies to the National Guard and is a “collective”, rather than individual, right (their favorite kind).

And even without express challenges to Heller and McDonald, less ambitious liberals could still work through the courts to undercut the Second Amendment, piece by gradual piece. Both decisions allow that some gun control is constitutional, as long as those laws do not effectively deprive an entire class of people from exercising their constitutional rights. No Court decision has yet clearly defined what the constitutional limits on such laws truly are, beyond stating, as Heller and McDonald did, that an absolute ban on handguns is beyond the pale. That still leaves many unanswered questions, which liberals will seek to subvert for their own purposes.

The Fourth Branch of Government

Over two centuries ago, James Madison, writing in The Federalist No. 47, recognized the danger of an unchecked administrative state. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” he wrote, “whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” And now, step by incremental step, the “fourth branch of government” is making Madison’s fears into reality, abetted by the other constitutional branches of government.

Administrative agencies (such as the IRS, EPA, SEC, and numerous other members of the “alphabet soup”) are nominally housed within the executive branch of government, delegated authority by the president to enforce the law within their respective fields. No clause of the Constitution allows for a delegation of authority to this degree, or addresses the fact that many federal agencies venture far outside their original jurisdictions in their prosecution of ordinary citizens.

The legislature, meanwhile, often leaves holes in the bills it passes, purposeful absences of detail that the administrative agencies often fill with rules and regulations of their own design. If this is not lawmaking or legislating, what is?

And the judiciary? It has willfully abandoned its duty to enforce the Constitution and the strict letter of the law, primarily by refusing to even interfere in the daily happenings in executive-branch agencies except in extreme circumstances. Often the courts, including the Supreme Court, merely decline to hear certain types of cases, other times, they actively defend the right of agencies to follow their own rules and hold their own hearings against those they have accused of violating federal regulations, without possibility of judicial appeal. The Supreme Court even ruled in the case of Chevron v. Natural Resources Defense Council (1984) that “courts should defer to agency interpretations of such statutes unless they are unreasonable.”

It takes little imagination to realize what James Madison and the other Founders would have made of that particular argument, or the entire sorry state of federal administrative law.

Congress should do more to fix this normalization of administrative tyranny, and indeed has been doing more. Current law provides Congress with the ability to repeal recent regulations, a power it has been exerting heavily as of late. The REINS Act, which would expressly forbid future major regulations unless first approved by Congress, has also been steadily progressing through the legislature. And it may be possible for the Chevron doctrine, as it is known, to be effectively repealed by law without need for further judicial intervention.

But the final way to halt and reverse the growth of the fourth branch of government will require the three constitutional branches to work together. The President must nominate, and the Senate must confirm, dedicated originalist judges who will be unapologetic in fighting “independent agencies” whenever such a case does arise. Railing against the administrative state is not sexy. It will put many voters to sleep, not rouse them to action. But in the long term, increasingly powerful and unaccountable agencies run by faceless bureaucrats are just as much of a threat to the Republic as the latest Trump “Muslim ban” or Supreme Court attempt to mandate legalized gay marriage.

Stare Decisis is Ridiculous

Imagine that you make a mistake, one you only find out about later. It could be anything—maybe you installed a new shelf sloppily, and only later noticed that it was tilted.  Or maybe your wife asks you to pick something up from the store, and it’s an hour before her words actually register. Do you act to fix your mistake, or do you decide to just live with an angry wife and useless shelf?

If you’re like most people, you act to fix the mistake, and the quicker the better (hopefully before the wife comes home and finds out that you never went to the store). But the Supreme Court’s often strict adherence to the principle of stare decisis—the power of binding precedent—is sometimes like seeing a mistake and willfully refusing to act to make it right. In the Court’s case, however, this refusal to act can over the long term actually hurt the constitutional foundations of the country.

This approach may be, as Justice Scalia once said in a different context, pure applesauce, but it is largely the way the Court has functioned for at least the past century. All courts are notoriously reluctant to overturn established precedent, but the Supreme Court has gained particular notoriety for its reluctance to overturn older decisions, even bad ones which a majority of justices are readily willing to admit are bad. It is one of a number of reasons the Court took more than fifty years to overturn the judicial endorsement of “separate but equal” facilities for blacks and whites (first articulated in the 1896 case of Plessy v. Ferguson, and not overturned until Brown v. Board of Education in 1954).

And if the justices do actually decide to overturn one of their prior rulings, every law student knows that they must be allowed to reach that conclusion on their own. Judges hate being told that they made a wrong decision, even if that fact is self-evident to everyone, including the judges themselves. The easiest way to win a case is to argue it within the framework of existing precedent, and allow the judge or judges in question to reach their own conclusions regarding precedent. Judges, and justices, hate being wrong, and they hate other people pointing out that they were wrong even more.

This is stupid. Nearly anyone with even minimal political engagement can think of some Supreme Court precedent that they believe should be overturned, and the arguments for some are more convincing than others (looking at you, Roe v. Wade). But beyond anyone’s ideological vendettas against certain cases, it’s just silly that the Supreme Court should be so resistant to overturning bad precedent, no matter the length of time elapsed. In fact, if that particular case has been on the books for a long period of time, and a wide range of people agree that it was a bad decision, even more reason for acting quickly, before it damages the country even more.

A rejection of the traditional judicial deference toward precedent is not lacking on the current Court—Justice Clarence Thomas has often argued for a less servile attitude toward past opinions. Hopefully more justices will join his more realistic attitude toward the Court’s work in the future, including Neil Gorsuch.

What's Next for the Gorsuch Nomination

At this point, I defy anyone to find a single conservative, or even a single Republican, who is not fully supportive of the idea of Neil Gorsuch sitting on the Supreme Court. His nomination may have largely divided Democrats and Republicans, but within the Republican Party it has been extraordinarily unifying, doing much to heal divisions still remaining after 2016.

That being said, even with a narrow Republican majority in the Senate, and as of this writing all GOP Senators supportive of the nominee, there’s no question that the confirmation battle will be rough, with Democrats testing Gorsuch far more than Republicans ever did with either of Obama’s Supreme Court nominees. Sonia Sotomayor was confirmed 68-31, and her confirmation process took a little over two months. Elena Kagan was confirmed the next year by a vote of 63-37, roughly three months after being nominated. My sense right now is that Gorsuch will be confirmed with between 56 and 58 votes, including between four and six Democrats in favor, though every single Democratic “aye” vote will be a hard-fought victory.

Chuck Grassley, the chairman of the Senate Judiciary Committee, has said that he would like to see Gorsuch confirmed by Easter, giving the Senate a six-week timeframe to complete hearings, receive papers and questionnaires, and hold votes. This would be significantly faster than previous nominees and I don’t think they will ultimately make the cutoff, but it is a good benchmark to shoot for.

There is also a reason for increased speed this time. Whereas the last two vacancies occurred during summer recess, while the Court was out of session, they are now beginning to hear cases for the spring term. The faster Gorsuch can be confirmed, the faster he can begin deciding cases, which both gives Republicans extra incentive to speed the process, and Democrats extra reason to slow down the nomination, even if they are ultimately unsuccessful at derailing it altogether.

Hearings have not yet been scheduled, although if Grassley hopes to meet his self-imposed Easter deadline they will have to begin within the next couple weeks. In the runup to those hearings, I’ll be taking a closer look at some of the judicial issues likely to face Gorsuch, both as questions during confirmation and in real-life cases once he is ultimately confirmed. Some of these issues, such as Roe v. Wade and religious freedom, are fairly well-known, while others, like the judicial principle of stare decisis, are more obscure, but all could ultimately have a significant impact on the future of the country.

A Thought On Trump's State of the Union

The State of the Union address, of course, has become one of the most important ceremonial events of a presidency. All the major networks cover it; the president’s team spends months crafting the speech, aware that much of the business in Washington revolves around the annual ritual.

It was also never supposed to be anything of the sort. The Constitution only requires that “from time to time” the president offer Congress information on the state of the nation, and give recommendations. It says nothing about the pomp and circumstance that have grown up around the event, or even that the information must be conveyed in a speech at all. In fact, the State of the Union was regularly delivered to Congress in written form, without great ceremony, until the 1930’s, when FDR saw fit to turn the event into a major national speech, with the president at the center of attention.

There have long been arguments that future presidents should return to delivering a simple written report to Congress. But with Trump in the White House, maybe it’s time to think outside the box.

We all know how much Trump loves Twitter. Maybe he should tweet the State of the Union—send a formal, written report to Congress, and then tweet the basics for the rest of the world. It would be new, exciting, shake up Washington tradition—and, best of all, be a symbolic move that at the same time does something to reduce the oversized role the president now plays in the federal government.

Is it a crazy idea? Sure. Do I think it’ll actually happen? Probably not. But it would shake up Washington while returning the executive branch to something more closely approximating the Founders’ vision, all while using 21^st century technology. What’s not to love?

Post-Partisanship Is All The Rage Now

When Barack Obama was first elected President, eight long years ago, it suddenly became fashionable to lionize him as the “post-partisan president”. Members of the mainstream media tripped over themselves to exclaim how he was transcending the two-party system and ushering in a new era of American politics.

Of course, with the benefit of hindsight we can see how foolish those exclamations were. Almost every action Obama has taken, from the stimulus to Obamacare to the Iran deal and executive amnesty has increased partisanship and division to a level not seen in decades. It is hard to overstate how big of a deal it is that at the final vote on the Affordable Care Act, Obama’s signature piece of domestic legislation, not a single Republican member of Congress, out of 40 Senators and 178 members of the House, could be convinced to vote for the bill. Even moderate and liberal Republicans like Susan Collins, Lisa Murkowski, and Olympia Snowe ultimately could not be persuaded to support it.

Now many commentators are saying something similar about Donald Trump, that he has blown apart traditional standards of partisanship with his embrace of issues as diverse as ending illegal immigration, curtailing free trade deals, and endorsing a massive new infrastructure bill. Personally, I think the evidence that Trump will upend traditional notions of partisanship is much more compelling than any similar evidence regarding Obama, although I think that he will merely redefine it more than transcend it. But still, there is a case to be made.

But “post-partisanship” of this sort is not, in my honest opinion, not all that it’s cracked up to be—at least as it’s generally been defined. Lessening tensions between the two major parties is good. Honest, friendly dialogue is good. But muddying the ideological waters is not. For at least the past several decades, if not longer, America’s two major parties have been essentially organized around two different interpretations of the Constitution, and the valid role of the federal government.

If Trump follows through on many of his campaign pledges, and ignores the natural conservative bent of many of those in his new Cabinet, a new dynamic could emerge—a Democratic Party of expansive government and a broad reading of the Constitution, and a Republican Party of nationalistic government and less of a careful adherence to the Constitution. The limited government view would no longer have a natural home in either major party.

It is for that reason that I’m praying that Trump will not be a post-partisan president. Less partisan, absolutely. Putting principles before party is laudable. But if post-partisanship means surrendering ideology in the name of pursuing the deal of the moment or achieving a short-term goal at the expense of Founding principles, count me out.

For Many States, Another Year Means Another Liberal Try for a VMT

The new year means, in addition to a new Congress and President, the start of new state legislative sessions in capitals across the country. Thousands of bills will be proposed, some good, some bad, some just plain stupid, and most of which will never even make it to a vote, let alone become law.

And in the several states that still have Democratic-controlled legislatures, one particularly bad idea will almost certainly be making a comeback: the Vehicle Mileage Tax (VMT), a scheme to essentially force drivers to pay a tax on every mile traveled, whether on vacation or a trip to the grocery store.

Nationally, Oregon, California, and Washington State are currently exploring the concept via pilot programs (Illinois also uses the system, though its use is restricted to the trucking industry), but it is likely that as the idea becomes more accepted and widespread, more states will begin looking into instituting their own systems.

A primary defense of the VMT is the argument that it will eventually be used as a replacement for state gas taxes, but it seems more likely that any final institution of the VMT would instead be used to supplement the revenue already raised by the gas tax—in effect taxing the same product twice. Yet concerns regarding any VMT proposal necessarily go beyond even the obvious negative repercussions of yet another tax.

A specific constitutional concern would be the fact that each state attempting to impose a VMT system would by necessity need a way to track not only the number of miles travelled, but also precisely where the car travelled. Constitutionally, a state could only tax those miles racked up within state borders—if Maryland, for example, attempted to tax a car's owner for miles travelled in Pennsylvania or Virginia, that would amount to an unconstitutional burden being placed on interstate commerce (shorter distances would be travelled, keeping many residents of one state within the boundaries of that state more often), as well effectively taxing an action that was performed within another state.

To circumvent these constitutional issues, a successful VMT system would need to do one of two things. Either the focus would switch to a national, rather than state, system—which would mean that, discounting drives to Canada or Mexico, only the mileage on a vehicle's odometer would need to be counted regularly—or, if the concept remained state-oriented, some form of GPS would need to be installed in each vehicle, in order to accurately determine where the vehicle had travelled and what miles would be taxable under the VMT regime.

And therein lies the final major problem with the entire VMT concept. As instituting an entirely new tax, one which would likely have a disproportionate impact on the middle class, would have little chance of passing Congress, the immediate future of the VMT likely lies in the states. Mandating that all private vehicles be equipped with a precise tracking system, for the sole purpose of being accessed by the government at periodic intervals, would be an invasion of privacy so severe that even many Democrats would be forced to draw the line.

The essential component of the VMT scheme, one that even its supporters concede would be necessary for the program to function, is also the component that—at least for the near future—ensures that most states will not be subject to yet another example of government overreach. For many Americans, the prospect of yet another tax, one which also requires government monitoring of every individual's movements on a daily basis, is a no-brainer.

Great Expectations

Senate Republicans have officially taken the first formal step to repealing Obamacare, approving a budget resolution that lays the groundwork for a later vote on full repeal.

This is, obviously, a good thing. I can think of no campaign pledge more defining for Republican candidates over the past six years than the promise to repeal and replace Obamacare, and being handed all the levers of power in the federal government and then failing to follow through would be an unforgiveable betrayal of the voters. And while I understand Rand Paul’s concerns about cutting spending, the chance to repeal Obamacare is one that is too important to conflate with any other issue, even something as important as federal spending. With Obamacare repeal, speed is key.

And yet repeal is only the first item on a lengthy wish list conservatives have for the new Republican government. Tax reform, approving the Keystone pipeline, cutting spending, instituting Congressional term limits, securing the border, guaranteeing a conservative majority on the Supreme Court for decades to come… The list goes on and on, and has had Republicans practically drooling for months. In just four years, the thinking goes, we can make it as if Barack Obama’s presidency never even happened.

But those big dreams seem to forget one of the biggest lessons of President Obama’s tenure: Many, indeed most, Republicans in positions of power in Washington are not as committed to sweeping changes as they claim to be on the stump. Republican and conservative goals do not always align. And many candidates who talk big about eliminating departments and slashing the national debt change their tune once in office.

This may seem like an obvious statement of fact to many, just over a year after John Boehner was forced to give up the Speakership. But for others, the headiness of unexpected Republican victory will cause memories to quickly fade. The draw of belonging to a team, especially a winning team, is strong, and it will be easy for many who proudly proclaimed their loyalty to principle during the Obama years to set those principles aside for greater personal power.

Personally, I expect Obamacare to be repealed. The promise to do so was so firm, was repeated so often, that it would now be suicidal not to. Whether it will be fully eliminated is another issue; the few popular provisions of the law, combined with the way other portions have already permanently altered the health-care industry, make the single-line repeal, “The Affordable Care Act of 2010 is hereby repealed,” of conservative dreams all but impossible.

On other issues, voters would do well to control their expectations. In four years, we will have the same number of federal departments as we do now. Federal spending will still be going up, though the rate of that increase may slow—hardly an achievement to get excited about. Keystone may be approved, if it is not already too late, and tax reform may pass, though it will be nothing like the flat tax of an ideal world. And there will be no federal term limits amendment passed by Congress.

I hope I’m wrong. Everything on the conservative wish list is possible. A radical pivot back to Constitutional basics could happen. But Mitch McConnell and Donald Trump are not the men to lead that charge. A more reasonable, and still hopeful, expectation for the next four years is for a competent administration and Congress to limit what new damage the federal government can cause, while laying the groundwork for a future President and Congress to more aggressively shrink the government back within Constitutional boundaries.

The Final Results of the 2016 Presidential Election Are In

The results are in: Donald Trump has officially been elected as the 45^th President of the United States.

On Election Day, according to state laws governing the awarding of electoral votes based on the results of the popular vote, Trump won 306 votes, and Hillary Clinton won 232. The margin was virtually unchanged yesterday; Trump took 304, and Clinton, 227. Two pledged Trump electors from Texas went rogue, one voting for John Kasich and the other for Ron Paul. (So the Libertarian Party will still end up with an electoral vote, despite Gary Johnson's failure to make a splash.) Meanwhile, five Clinton electors across the country voted for several other people, including Bernie Sanders, Colin Powell, and Faith Spotted Eagle (an American Indian activist involved in the Dakota Access pipeline fight).

Amusingly, for all the talk of Republican electors voting for someone other than Trump, Clinton actually lost more votes to faithless electors. And it could have been even worse for her—another three pledged Clinton electors in Minnesota, Maine, and Colorado attempted to vote for someone else (Sanders in Maine and Minnesota, and Kasich in Colorado) but had their votes invalidated due to state laws binding electors to the results of the statewide popular vote.

Some unexpected names also received electoral votes for Vice President: Carly Fiorina, Susan Collins, Maria Cantwell, and Winona LaDuke (the Green Party’s 2000 VP nominee).

Seven rogue electors may be well short of the thirty-seven that would have been needed to actually change the results of the election, but it’s still hard to count the ways in which this was historic:

·         Most number of faithless electors in a single election, beating the previous record of six, set in 1808.

·         Most people to receive at least one electoral vote for president in a single election.

·         First time the Green Party has received an electoral vote for President or Vice President (Winona LaDuke).

·         First time faithless electors voted for a candidate from the other major party (the three Democrats in Washington State who voted for Colin Powell).

·         And Faith Spotted Eagle now has a place in history, going from completely unknown activist to one of only two women (along with Hillary Clinton) to have won Electoral College votes for President.

Odd footnotes to a crazy year.

And presumably, now that Trump has officially been elected President, liberals will forget their brief infatuation with the power of the Electoral College and “Hamilton electors” and go back to decrying it as a relic of slavery.

Today, The 45th President Will Be Elected

Today, members of the Electoral College will gather in state capitals across the country, cast their ballots for President and Vice-President, and officially bring the 2016 presidential election to a close. Until today, Donald Trump has been only the effective President-elect, having clinched the requisite number of states and pledged electoral votes. After today, presumably, he will become the President-elect as recognized under the Constitution, not just in effect but in legal, constitutional fact.

There have been some well-publicized, though ultimately fruitless, attempts to declare various state laws binding electors to the results of the vote unconstitutional. Many of the attempts—at least publicly—have been made by Democratic electors, rather than the Republican electors pledged to Trump who would have to switch their allegiance for the election to be thrown to the House of Representatives. (Of course, we have no way of knowing what private discussions may have gone on between those Republican electors.)

Comparing this attempt to “free the electors”, to the summertime movement to “free the delegates” at the RNC to vote their conscience, is a natural contrast to make. But the circumstances are much different. Then, Trump was a candidate, the presumptive nominee of the Republican Party who had a history of liberal policy positions, troublesome statements about a multitude of groups, and every expectation of losing to Hillary Clinton come November. Conservatives and Republicans alike had every reason to oppose his official nomination.

Now, that history remains the same, but he has been elected President by more than 60 million people, and deserves both a chance to prove himself and some measure of respect. In addition, state laws and party rules governing the binding of political party delegates to certain candidates were and are legally suspect. But the Constitution, which does not address party politics, clearly says that states may award electoral votes as they see fit, including by binding electors to the results of the statewide vote.

And, even assuming that thirty-seven electors pledged to Trump switch their votes today—unlikely, to say the least—all this would achieve would be to force the House to make the final decision, in early January. Republicans hold a majority of state delegations, and many have been comforted by Trump’s recent Cabinet picks. One way or another, Donald Trump will be the 45^th President.

These efforts add yet more drama to the election season many thought was over, and turn what is normally a boring, formal affair into a drama worthy of House of Cards. A fitting way to close out the year.

There Are Many Ways to Reform the Electoral College Without Repealing It

So much ink, both digital and otherwise, has been spilled since the election debating the merits of the Electoral College that I won’t bother rehashing old arguments here, beyond simply stating that I believe the institution is an ingenious way of furthering the goals of federalism, separation of powers, and the equality of all people and states that are at the very heart of the Constitution. But what I do want to do is briefly make the case that, for all the liberals’ talk of repealing the Electoral College, there are a number of ways to reform the system without violating either the Constitution itself or the Framers’ original intent.

It’s first worth looking at the relevant sections of the Constitution that establish the Electoral College. Article II, Section 1, Clause 2:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a  Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” (Emphasis added.)

And Article II, Section 1, Clause 4:

“The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

The key is that every single state has the discretion, under the Constitution, to award electoral votes in whatever way that state sees fit. The complaints from liberals today (other than whining that the system is racist and Hillary won the popular vote) seems to be that in nearly all of the major swing states, Trump won by only a point or less, and yet won all of the electoral votes from those states. For instance, Trump won Pennsylvania by just over one percentage point—and yet won all twenty of the state’s votes in the Electoral College.

But there’s no requirement that states use a winner-take-all system. Nebraska and Maine are currently the only two states that don’t, awarding two votes to the statewide winner, and an additional vote to the winner of each of their Congressional districts (Nebraska split its votes in 2008, giving one vote from the Second District to Barack Obama, and Maine similarly gave one vote to Donald Trump this year). Republicans proposed that very system for Pennsylvania several years ago, back when the state was still considered an integral part of the “Blue Wall”, but Democrats quickly shot it down.

Or if that system isn’t to liberals liking, they could try a different kind of proportional system, where the number of electors a candidate wins in a given state directly relates to the percentage of the vote they receive in that state. This is a favored method of awarding delegates in both parties’ presidential primaries—for example, in the Iowa Republican caucuses, Ted Cruz won narrowly and received eight delegates. Donald Trump and Marco Rubio were close behind, and each earned seven delegates, and so on down to Jeb Bush’s one delegate. What’s to stop the adoption of a similar system for the general election?

The only real limits to the methods of reforming the Electoral College are the Constitution (states can’t restrict voting to just men or just women) and imagination. And there are a multitude of potential changes that could be made that I haven’t discussed here and are just waiting for their time to shine (although I imagine that the party currently pushing for a national popular vote would not embrace the notion of state legislatures selecting electors without any public vote at all, although that too is both allowed under the Constitution and has historical precedent).

I personally am a fan of the current winner-take-all system. As I said, it strengthens federalism, makes campaigning logistically easier, and gives focus to more local issues that otherwise wouldn’t receive a great deal of attention (think ethanol in Iowa). But states are the laboratories of democracy. Be creative! There are plenty of options to reform the Electoral College without blowing up the whole Constitution.

Do You Remember This?

If there is a single defining moment of this election season in my mind, it is from the first day of the Republican National Convention in July, when conservative delegates joined together to demand a simple roll call vote on the rules package—and the RNC and the Trump campaign joined together to shut them down.

Remember that?

Paul Manafort, the principal organizer of those strongman tactics, may be long gone from the campaign, but his style suited Trump’s own tendencies perfectly. The incident itself received some mainstream attention—although far less than it should have—but it illustrated a potential Trumpian future, with Trump in control of the country and the party.

It’s been said before, and I’ll say it again—if Trump loses, his influence over the party will be that much easier to purge, and the movement might yet be saved. But if he wins, he will be the effective leader of the party for at least the next four years. By that point, the damage may be irreversible.

The country, of course, would fair even worse. Trump would trade limited government and constitutional principles for his own brand of lawless executive actions, in effect no different from Barack Obama. A platform of ignoring the Constitution and separation of powers outright would become bipartisan.

What happened at the RNC in July offers a possible glimpse of the country and the Republican Party of the future, under a Donald Trump administration. A silencing of dissent, of all Trump’s critics, and a gutting of the First Amendment, which Trump has already overtly hinted at through his repeated promises to loosen requirements for libel suits. As President, he will have more tools at his disposal than merely late-night Twitter rants.

A vote for Donald Trump is a vote for Donald Trump’s America.