Declaring Russia an Enemy

July, 2018

Lincoln and Washington -- My U.S. Senator, Ben Sasse, has suggested that President Trump declare Russia an enemy of the United States.

That would be a good idea but it won't happen, as the senator knows. It would trigger the clause in the Constitution that defines treason as giving aid and comfort to an enemy. This the last thing the president would do.

Rather, Senator Sasse and other senators should introduce a concurrent resolution* for Congress to declare Russia an enemy. Passage of such a resolution would clarify grounds for impeachment. It would constrain the president from giving further aid and comfort to Russia, which has tampered in our elections and is surely doing so again, threatening our very democracy.

It would also provide the special counsel in the Russia probe with more options. The president would not have to be indicted for a criminal act, as some people believe is necessary, in order to face impeachment. The special counsel would not have to put the president before a grand jury, always a messy situation; the House would not have to wrestle with the meaning of high crimes and misdemeanors, but only look at what constitutes aid and comfort.

Most of all, passage of such a resolution now would deter the president from giving even more aid and comfort to Russia. It would be a way for Congress to assert itself meaningfully and constructively, in our system of separation of powers and checks and balances.

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* Concurrent resolutions are not subject to veto by the president.

How Vulnerable are these Four Senators

July, 2018

Washington -- Senators Manchin, Donnelly, Heitkamp, and McCaskill, if they were entertaining the notion of voting for Supreme Court nominee Brett Kavanaugh, just got a splash of cold water in the face from the estimable Jane Mayer, who suggested they might be more vulnerable for voting for Kavanaugh than voting against him.

Look what happened to Senators Dixon and Fowler, who voted for Clarence Thomas in a similar situation. They were defeated at the next election.

Moreover, surveys* of voters in the applicable red states suggest that narrow majorities would approve a Democratic senator opposing Kavanaugh so as to provide a check on presidential power. This is before such a position has even been well articulated.

If Kavanaugh's "originalism" is unmasked as contrary to Madison's and Jefferson's views of the Constitution, those majorities will increase substantially. A key element of originalism, the idea that unenumerated rights are not protected, is blind to Madison's explicit Ninth Amendment** in the Bill of Rights itself. As I suggested in the previous blog, no one has ever gone down in an election by being too closely associated with James Madison.

We Americans take our checks and balances seriously. What with the American president's questionable – some will say treasonous – performance alongside the Russian president, more and more people will want to take a step back on the Kavanaugh nomination. The nominee is well known for his position that a president should not be bothered by an investigation until his term is over. That matter could soon come before the Supreme Court.

There is also every reason for the four senators in question to wait until hearings can be held on the nomination. It is well known that Brett Kavanaugh was instrumental in providing, on behalf of Kennent Starr, selective information to selective press during Starr's Clinton investigation. Red state voters may not be pleased to learn that this typical Washington swamp behavior is his background.

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* "The survey shows that fifty-four per cent of voters polled in these states said they would approve of a Democratic senator opposing Trump’s choice for the Supreme Court if it protected the independence of the Court as a check on Presidential power."--Jane Mayer

** Amendment IX: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Originalism Indeed: Madison Versus Trump

July, 2018

Washington -- If history is any guide, Democratic senators are preparing questions for the Supreme Court nomination hearings that may make for good television but for bad political strategy.

The nominee, Brett Kavanaugh, will surely be well prepared for Roe and Fisher and wedding cakes, likely targets of Democratic inquiry.

He will not be so well prepared for questions of political theory, of Montesquieu* and Madison,** of constitutional checks and balances. If he is only asked.

If no one has noticed, the country is on the verge of being taken over by one-party government with all the danger that entails. Republicans hold power in all three branches at the national level, weakening the separation of powers; the same goes for a wide majority of states, weakening the division of powers provision in the federal system.

Survival of our checks and balances is shaping up to be the issue of our time. It is also the issue where Kavanaugh and his fellow "originalists" are weak. Judicial activism in several cases and timidity in others by so-called originalists are emasculating the true original genius of the Constitution.

Appropriate questioning will draw attention to this situation in the confirmation hearing. Democrats should be ready to go nouveau-originalism one better in citing Madison, to show how judicial activism in Citizens United and Shelby County stepped over the line of legislating from the bench, and how Hawaii dangerously empowers the executive. These are concerns of conservatives and liberals alike. Activist judges are now much more a problem from the right than from the left. See Justice Kagan's comment about "black-robed rulers overriding citizens choices" in Janus.

The nominee could say, of course, that the remedy is at the polls. But that particular check and balance is also being closed off by the Supreme Court because of its indifference to the 14th Amendment's requirement for equal protection in the gerrymandering cases. Such is the refinement of the science of gerrymandering that a party can win widely at the polls but lose badly in the struggle for representation.

Moreover, it has become decidedly murkier as to just what policies and parties voters are to choose among in elections. Historic Republican positions on trade, foreign affairs, fiscal policy and so many other areas have been victims in a through-the-looking-glass rush to one-party power. Voting now is becoming up or down on a cult leader.

Especially troubling with this nominee is his tying the judiciary to the executive power, as Montesquieu warned against, in the nominee's view that the executive should be immune from legal prosecution while in office.

Voters of all ideological persuasions hold our constitutional principles dear and, if Democrats ask the right questions, voters in red states with Democratic senators will be patient with their senators as they deliberate their senatorial check and balance, the power to confirm or deny confirmation to a Supreme Court nominee. In my recollection, no elected official has ever gone down for being too Madisonian.

If the matter becomes, for all forty-nine Democratic senators, one of Madisonian originalism versus Trumpian originalism, it's possible the nomination could go down, or at least be held over to the next Congress, if the Republicans splinter on other issues. I am not predicting this, as most senators and their staffs these days care only about the news cycle and social media, and little of the Enlightenment. They are the product of colleges that increasingly teach political management over political theory, so I'm not holding out hope.

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* "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
"Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
"There would be an end of every thing, were the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."

--Montesquieu, Spirit of the Laws, Book XI

** "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State."

-- Madison, The Federalist, No 51

Memories of SOJ Operations off North Korea

July, 2018

Washington -- It being the Fourth of July, patriotism is a good subject to consider. And North Korea.

An image is sticking in my mind, a photo from the Singapore summit three weeks ago. Kim Jong-un is shepherding Donald Trump into a room; his hand is on the middle of Trump's back, guiding him, a show of who's in charge. Trump is about to get taken, it seems. Trump will lower military readiness for a Kim promise to de-nuclearize North Korea. Within days, however, satellite photos will show North Korea enhancing its nuclear facilities.

Perhaps somehow it will all work out. Diplomacy has risks worth taking. Doubtless it was wise to step back from the brink of a senseless and catastrophic war.

Some of us on this Fourth of July must be excused if we turn our eyes away from the summit spectacle and look instead to photos of the USS Pueblo (AGER-2), a Navy ship still in commission and held in a North Korean port. Its crew was captured in 1968 by North Korea, tortured for a year, then released.

I was in the Navy at the time, between ships. My orders were to join the USS Arlington (AGMR-2) in Sydney, Australia. When I got to the Philippines, suddenly the orders were changed, as I was somehow to get to the ship in the Sea of Japan (SOJ), operating off the North Korean port of Wonsan. I flew to Okinawa, then to Tachikawa Air Base outside Tokyo, then to the Naval Air Facility at Atsugi, where I boarded a COD (carrier onboard delivery) flight to the USS Enterprise, which had just been rushed to waters off the North Korean coast.

It was snowing when we reached the big aircraft carrier; the deck was white and slippery. The pilot missed the arresting wire four times. Each time he missed, he went full throttle out over the sea to circle and try again. We landed on the fifth attempt. If that one had not succeeded, a cable net barrier would have been put across the flight deck to crash-land us. I spent the night on the Enterprise. The next morning, I was helicoptered over to the Arlington, which was on the scene to provide communications between Washington and the U.S. Navy ships off Wonsan.

Our ships were there to invade the port and rescue the crew of the Pueblo, if the signal was given to do so. It was not given, mostly out of concern that the crew would immediately have been killed by their captors, if we even knew where they were being held. Sixty-eight days later, Arlington steamed back into Yokosuka, Japan.

What are those who have served to deter North Korean totalitarianism supposed to think about new bonhomie with the brutal North Korean leaders? It certainly puts a damper on this Fourth of July for some of us.





Tackling the Student Loan Cancellation Dilemma

July, 2018

Washington -- This blog post will throw caution to the wind and take on the issue of wholesale student loan cancellation as a way to help the economy and simultaneously get millions of borrowers out of financial trouble. The Levy Institute has recently looked at cancellation's effect on the economy and finds considerable merit in the idea; and it is abundantly clear that student loans are the cause of unending financial distress for wide swaths of the U.S. population. To an alarming extent, the mess is attributable to fundamental consumer protection failures.

The idea of student loan cancellation came up before in the aftermath of the Great Recession, as a way to put money into the economy to aid recovery. No one advanced an acceptable plan. The proposal came up again in the 2016 election but quickly was dropped in favor of airy candidate promises for "free" college sometime in the distant future. This naturally built resentment among those with current debt.

Now some political candidates are talking about it again but with little substance as to hows and whys.

A major problem that must be overcome is "equity." It seems unfair to cancel the large existing debt of one person but to do nothing for another person who has struggled mightily and just paid off debt. It seems unfair to cancel a large debt of a person who chose to attend an expensive college but cancel only a small debt for someone who chose a low-cost, and perhaps lesser quality, institution. It seems unfair to students who worked two or three jobs and took extra years to graduate so as to avoid debt. Inherent perceived inequities will likely sink any universal loan cancellation plan.

A different way to approach the problem would be to address equity concerns first, above other considerations. The amount of debt relief would not be based on amount borrowed or debt remaining, but would be based on other criteria that are more fundamental to the creation of the problem in the first place.

The increase in student loan debt has been due in significant part to dimished public support for higher education. There was once a consensus* that individual students should pay about one-third the cost of higher education, public tax support should provide another third, and the remaining third would come from charitable efforts and miscellaneous grant, contract, and enterprise receipts. That was understood to be a rough split of support based on the idea that whoever benefited should pay proportionately.

But by the beginning of this century, individuals were often picking up much more than a third, and borrowing heavily to do it.

A solution would be to have society step back in to equalize between generations. Consider a simple illustration: if the cost of education (instruction and related) was an inflation-adjusted $21,000 per year, under the old consensus the individual would be responsible for $7,000 and others for $14,000. But as we moved into this century, the responsibility became more the reverse.

So why not provide a tax credit of $7,000 per individual per year of post-secondary education (using the example above) with the rationale of generational equity, to make up for the unfairness of abandoning the old consensus? The credit would provide look-back up to thirty years. Its actual amount in any year would be calculated on national averages of cost and share. Claiming the credit would require only proof of attendance in credit hours (available in transcripts) at a HEA Title IV participating post-secondary institution, not an amount borrowed, paid, or due.

This would help many individuals immensely and allow them to get on top of their debt quickly. It would not be "forgiveness" of the debt, in the sense that the term is often used interchangably with other debt relief measures. The forgiveness involved would be society's own asking for it, from a generation of individuals it wronged and for which we are all paying, individual and society alike. Even the Federal Reserve chief has expressed concern about student loan debt's drag on the economy.

Yes, the tax credit would be refundable if taxable income was too low to take full advantage of the credit, but the refund would be paid first to reduce principal loan balance. There should also be a means test for so-called vertical equity. Those with high incomes and high debt are not the issue that needs to be addressed. Bankruptcy relief should become available as it was before 1998** for those with intractable problems. To forestall price-gouging by institutions, Congress should put a moratorium on the collective amount of loans any institution can put into students' financial aid packages, enforced through HEA Title IV gatekeeping.

These measures would enhance a sense of urgency to replace them with broad post-secondary finance reforms and move the U.S. toward better models, like Australia's for example.

This approach could also be considered a "tax cut" due the lower and middle classes, which did not benefit much if at all from the 2017 federal tax cut, as it largely benefited corporations and individuals at the higher income levels.

I would not be surprised if this idea, or something like it, quickly gained popular support as a way of dealing with the nation's crippling student debt crisis. It would have many of the same positive effects on the economy as described in the Levy study; it would avoid many of the inequities of earlier proposals that doomed them; it would save countless families from continued financial ruin brought about by foolish, counterproductive federal student loan policies. (Not to mention inept and sometimes fraudulent student loan administration.)

It gives me pause to suggest any plan that would increase the federal deficit, but the Levy Institute's study ameliorates that concern substantially.

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* The consensus is best explicated by the Carnegie Commission, 1973.
** 2005 for private student loans