Will the Massachusetts legislature punt on due process and separation of powers?

Earlier this month, Massachusetts Attorney General Maura Healey implemented a sweeping new revision of the Bay State's regulation of firearms.  Supposedly aimed at cracking down on so-called "copycat" assault weapons, these new rules are actually incredibly vague and have caused a host of headaches for local businesses and private citizens alike.  It's not clear exactly which guns will be banned under Healey's new rules, and this massive uncertainty has had a number of unforeseen outcomes (including causing a spike in gun sales).  Moreover, her sweeping ruling could open the door to banning semiautomatic firearms in general.

Healey's decision has large (and potentially unconstitutional) implications for the Second Amendment, but it also has a bearing on the stakes of due process.  The Massachusetts state legislature did not pass any law giving her new powers; instead, she simply invented them herself.  This ruling, then, sets a precedent that goes far beyond the Second Amendment.  Under the Healey precedent, an attorney general can declare actions legal or illegal at a whim.

Because of the significant constitutional implications of Healey's ruling, voices across the Massachusetts political spectrum have risen up against her decision.  A bipartisan coalition of state legislators wrote a letter condemning Healey's decision.  Charlie Baker, the Commonwealth's popular Republican governor, has also raised concerns about it.

Massachusetts State Senate Minority Leader Bruce Tarr has authored a bill, the "Act to Protect Due Process," that would roll back Healey's ruling and make clear that the state attorney general does not have the authority to invent new gun regulations.  Tarr's bill would also ensure that individuals who bought guns legally cannot be later classified as criminals for owning these legally purchased guns.

Massachusetts is currently in the last few days of its legislative session, and some Democratic leaders in the legislature (both the lower house and the Senate have strong Democratic majorities) have resisted bringing this bill up for a vote.  Perhaps desire to avoid a vote on a due-process bill comes from a wish to spare Healey political embarrassment and to ensure that elected representatives can avoid being on the record about Healey's decision.

The Speaker of the legislature, Bob DeLeo, has refused to bring up a due-process bill because he argues that there isn't enough time to vote on the bill.  DeLeo's decision sends a signal to the executive branch that, if it wants to expand its authority, it should do so near the end of a legislative sessionn.

Now, attention turns to Stan Rosenberg, the head of the state senate.  Rosenberg has long campaigned on the idea of transparency in government.  Rosenberg faces a tough decision: live up to those principles and allow a vote, or scuttle discussion on a bill that defends the ideals of due process and separation of powers.  Opposition to Healey's decision is not a partisan issue, but partisanship might help block a vote on a bill to repeal her decision.

UPDATE: Of course they punted.

Rhetoric and Reality

The last few nights of the Democratic National Convention had some stirring images and worthy turns of phrase.  For instance, President Obama raised some valuable points here:

We are not a fragile people, we're not a frightful people. Our power doesn't come from some self-declared savior promising that he alone can restore order as long as we do things his way. We don't look to be ruled.

Our power comes from those immortal declarations first put to paper right here in Philadelphia all those years ago. We hold these truths to be self-evident, that all men are created equal, that we the people can form a more perfect union. That's who we are. That's our birthright, the capacity to shape our own destiny.

And one might be cheered by the displays of optimism and patriotism in Philadelphia.

Commentators on the left and the right suggested that Democrats were trying to appeal to the middle and to disaffected Republicans through the imagery of the Convention.

However, this project of outreach ran into some headwinds when Hillary Clinton came out to speak.  Clinton's speech focused on three things: a broad sketch of an optimistic vision for the United States, personal attacks on Donald Trump, and the vague outline of her policy agenda.  That third component caused those headwinds to climb above 30 knots.  On free speech, immigration, taxes, health-care, abortion, and other issues, Hillary Clinton is running far to the left.  Democrats might like to run as the party of optimism and unity, but the progressive record has all too often been one of paranoia, division, and disappointment.

The narrative of hope, integration, and limited government championed in the rhetoric of the DNC unfortunately runs counter to much of the legacy of the Obama administration and the projected plans of Secretary Clinton.  It's telling that, at the DNC, Democrats did not run on the autocracy of the pen and the phone.  Nor did they spend much time celebrating the president's divisive record on a host of issues.  Instead, they attempted to divorce rhetoric from policy reality and to cast Donald Trump as a totem of all that is reactionary, angry, and pessimistic.

In order to counteract this Democratic narrative, Trump's campaign will need more specific and disciplined policy messaging.  With targeted and specific policy discussions, the Trump campaign could puncture the gauzy narratives sketched out by Hillary Clinton.  However, it won't be enough to show how Clinton's policies would hurt the United States; that would only play into the narrative of Trump as too "dark."  It will be imperative for the Trump campaign to explain in depth how Trump's policies can help the United States.  By pivoting to policy specifics, the Trump campaign can seize the standard of optimistic change.

The Just Limits of Competence

One of the subtexts of the populist revolt roiling American politics is the accusation that current governing elites have failed.  Certainly, we have seen a number of failures over the past decade--in foreign affairs, in the regulation of the financial markets, in the realm of national security, and so forth.  The Obama administration even struggled to roll out the website for its signature initiative (the Affordable Care Act).  In dealing with the challenges ahead, we need to take a balanced approach to the role of competence.

Yes, competence does matter in terms of running government.  One needn't be a radical technocrat to believe that it does.  Furthermore, competence can be an ally of limited government and individual liberty.  When the government fails to do that which is in its proper purview, it opens up the door to social and political disruptions that in turn create an opening for big-government pseudo-solutions.  For instance, if the mortgage and financial sectors had been more astutely regulated, the great meltdown of 2008 could have been avoided or at least lessened.  That meltdown paved the way for the stimulus and other bureaucratic overreaches of the Obama administration.

One could make a case that recent years have witnessed the following feedback loop: administrative incompetence leading to the growth of government bureaucracies, which in turn compounds the later bureaucratic failures.  This pattern has been damaging to both the nation as a whole and the enterprise of limited government.

However, competence by itself does not solve all problems.  We live in a flawed human world, so there will be challenges and setbacks no matter how skilled we are.  We can't expect perfection from any government actor--or any human actor at all.  It's because of this lack of perfection that we should be skeptical about assigning over all power to a single entity or to a narrow group of entities.  By diffusing power, we can lessen the likelihood of major crippling mistakes.  Technical competence also cannot simply adjudicate some of the deeper questions of politics (such as the best social organization, the ideals a society should embody, what exactly constitutes the good life, etc.).

Strongmen are no substitute for a responsible and limited republican politics, but, if republican leaders do not act responsibly, they also undermine the broader grounding of limited government.

How Dark?

Donald Trump's convention speech tonight spent a lot of time talking about the challenges facing the United States.  Whether that's good or bad, mentioning dark themes isn't exactly outside the mainstream of American politics.

Here's what Barack Obama had to say about the United States in 2008:

This country is more decent than one where a woman in Ohio, on the brink of retirement, finds herself one illness away from disaster after a lifetime of hard work.
We're a better country than one where a man in Indiana has to pack up the equipment that he's worked on for 20 years and watch as it's shipped off to China, and then chokes up as he explains how he felt like a failure when he went home to tell his family the news.
We are more compassionate than a government that lets veterans sleep on our streets and families slide into poverty that sits on its hands while a major American city drowns before our eyes.

Those lines have some pretty dark imagery.  Senator Obama accused the government of doing nothing while New Orleans "drown[ed] before our eyes" and constantly emphasized images of economic decline.

This tone of critique isn't limited to Barack Obama.  Here are some passages from Ronald Reagan's speech at the 1980 convention:

Never before in our history have Americans been called upon to face three grave threats to our very existence, any one of which could destroy us. We face a disintegrating economy, a weakened defense and an energy policy based on the sharing of scarcity.
The major issue of this campaign is the direct political, personal and moral responsibility of Democratic Party leadership--in the White House and in Congress--for this unprecedented calamity which has befallen us. They tell us they have done the most that humanly could be done. They say that the United States has had its day in the sun; that our nation has passed its zenith. They expect you to tell your children that the American people no longer have the will to cope with their problems; that the future will be one of sacrifice and few opportunities...
We need rebirth of the American tradition of leadership at every level of government and in private life as well. The United States of America is unique in world history because it has a genius for leaders--many leaders--on many levels. But, back in 1976, Mr. Carter said, "Trust me." And a lot of people did. Now, many of those people are out of work. Many have seen their savings eaten away by inflation. Many others on fixed incomes, especially the elderly, have watched helplessly as the cruel tax of inflation wasted away their purchasing power. And, today, a great many who trusted Mr. Carter wonder if we can survive the Carter policies of national defense.

Negativity isn't enough.  Reagan in particular emphasized a hopeful possibility for the United States.  National leaders need to do more than diagnose; they need to offer hope and solutions.

Choosing Defeat

In the era of the New Normal, our politics has tended to focus on distributing pain rather than sharing benefits.  Politicians focus on government redistribution rather than economic revitalization, and the left-wing culture war often seems to be more about bullying dissenters than working to advance the recognition of diverse human dignity.  One of the things that has intensified partisanship in recent years is that there have been so many failures (on foreign policy, on financial regulation, on economic growth, and so forth).  The fact that victory has a hundred fathers means that various factions can claim a hand in success: Republicans and Democrats can come together to share the glory of American economic success, the end of segregation, or the defeat of the Soviet Union.  In recent years, though, our politics has become consumed with foisting the orphan of defeat on the opposing faction.  This all-consuming blame-game distracts us from the work of finding solutions and defending the Republic.

Conservatives should beware falling into the same dynamic.  It's clear that some on the right would like to use a Trump defeat in November as a way of punishing their factional opponents in the GOP.  Some Trump allies seem to place more of an emphasis on rubbing their Republican opponents' noses in the dirt rather than working to unify the party to help Trump win.  However, rather than fighting over who can be the future captain of a losing team, it might instead be better to, well, win.

At the risk of being gauche, one might observe that Hillary Clinton is still not destined to be president.  Her unfavorables remain shockingly high, she stands committed to a failed radical ideology, and the scandals surrounding her are legion.  At the moment, Donald Trump--despite all his campaign's stumbles--remains only a couple points behind her in public polls.  It would border on bizarre for the right to choose a fractious defeat at this point in the summer.

If Donald Trump really wants to sit in the Oval Office, he needs to work to unify the party and prove his fitness for governing.  Part of this means exercising more discipline in public comments and toning down the attacks on intraparty rivals.  But it also demands showing more fluency with policy and conservative thought.  Donald Trump, Jr.'s speech on Tuesday night showed that it is possible to synthesize Trumpian themes with mainstream conservative arguments.  It is up to the nominee of the Republican party to make that case responsibly and to do more to earn the respect of both his party and the nation.

Meanwhile, many elected Republican officials or former elected officials who could themselves make a legitimate run for the presidency have declared both Trump and Clinton unfit for the presidency.  If that's the case, those politicians would seem to have a moral obligation to offer a viable alternative to those candidates.  If Trump and Clinton are both equally bad, there's no risk of being a "spoiler."  If they are both unfit, then surely our country deserves better.  If a plausible third-party candidate has even a slim chance of winning against two supposedly illegitimate options, what excuse is there not to run?  Compared to the conditions that our nation's soldiers are expected to face on behalf of the Republic, mounting a presidential campaign is a laughably light task.  The burdens of Veep aren't exactly those of American Sniper.  And if Donald Trump and Hillary Clinton are not equally bad options, politicians and the average voter have an obligation to deliberate upon who is least bad.

Our nation deserves more than vitriol.  Vindictiveness is a poor substitute for victory, and the fate of the nation is more important than the social status of political partisans.

Against Totalitarianism

Mollie Hemingway has a valuable piece out today suggesting that Republicans might be wise to unify the GOP around the idea of anti-totalitarianism.  There's a long tradition of opposition to totalitarianism within conservatism, from Edmund Burke's critique of the proto-totalitarianism of the French Revolution to conservative opposition to the Soviet Union.

Hemingway notes that the breakdown of civic society opens the door to the totalitarian temptation:

Financially, we’re well off. In other ways, we’re suffering. And we have the drug addiction, suicide rates, and socio-economic strife to prove it. American sociologist Robert Nisbet said totalitarianism is a process of the annihilation of individuality, beginning with the erosion of social relationships. Without ties to family, friends, and community, people look to the government for help and validation. This isolation and alienation allows the state to control us.
“To destroy or diminish the reality of the smaller areas of society, to abolish or restrict the range of cultural alternatives offered individuals by economic endeavor, religion, and kinship, is to destroy in time the roots of the will to resist despotism in its large forms,” he wrote in Quest for Community.
Families break down as a result of a sexual revolution we insist on treating as an unalloyed good, all evidence to the contrary. Bureaucracies tell people how little they can practice their religion outside of their sanctuary walls, or how little control they have over their child’s education, or how little they can determine how to run a family business. Corporations are increasingly tied to a government that bestows favors on those who adopt a rigid set of doctrines set by the state. And our media frequently give the impression there’s only one correct side to an argument, ostracizing or belittling those with different opinions.

Strengthening civil society--rebuilding the bonds of trust, integration, and community--could help ward off that totalitarian threat and help defend liberty.

Contra Decadence

Our nation faces many challenges.

Since 2000, the United States economy has grown at an annual rate of about 1.8 percent.  Between 1947 and 2000, it annually grew at nearly twice that rate.

Inflation-adjusted median household income peaked in 1999.

The long-term trend of decreasing murder rates may, in some cities, be reversing.

Across the country, civil unrest has at times boiled over into violence.

ISIS and its allies are on the march--in Nice and in Brussels, in San Bernardino and in Orlando.

The geopolitical order is strained. Power vacuums in the Middle East and elsewhere have given havens to terrorists and their friends. Major international bodies--such as the European Union--face increased internal tensions.

No wonder that, according to polls, fewer than one-third of Americans think that the nation is on the right track.  These are serious problems, and it's not fear-mongering to draw attention to them.  In fact, it enables fear and misery to deny their existence.

The American republic has undergone periods of testing before, and it has risen to the occasion.  These present challenges are not insurmountable, but the status quo has failed to face--and has often compounded--them.  In recent years, supposed technocratic wizards have failed again and again.  Those who should seek to conciliate have instead worked to divide.  Those who have a duty to the public have instead built grand palaces of self-indulgence.  The comfortable have congratulated themselves on their tired bromides--and called that back-patting courage.  Those in high office and other positions of power have inflamed the culture war as a way of distracting from their cronyism and incompetence, invoking the "right side of History" to wrap themselves in the robes of imperial luxury.

Many powerful forces have worked to spread distrust, polarization, and anger. We as a nation can instead take the--at times harder but always more rewarding--path of empathy, understanding, and deliberation. We can listen to each other and realize that each and every life has dignity, and that every person matters. We can have a republic of both diversity and comity.

In the face of a reckless technocratic transnationalism, there is a place--and even a need--for a voice for the traditions of responsible self-government. Instead of the facile self-righteousness of the new intolerance, we can instead have a culture of freedom, pluralism, and serious cultural achievement. We can have an economy where prosperity is not the preserve of the few, and where corporate cronyism does not enrich the connected at the expense of the public. We can have a foreign policy that honors American commitments and prudently uses power abroad. We can work to rebuild trust and our communities.

Decadence is all too often a choice or the product of a series of choices, when one person after another shirks the obligations of virtue, imagination, and responsibility.  Americans have a higher birthright and obligation than the cut-rate comforts of the New Normal.  This republic won its independence, survived a crippling civil war, became an industrial colossus, fought back the twin totalitarian evils of the twentieth century (Nazism and Soviet Communism), and, over the centuries, has worked to expand the blessings of liberty and self-governance both inside and outside its borders.  In the face of our troubles, it is time for national leaders to remind our republic of what is best in it and to offer a vision for the future that accords with reality but that also speaks to our nobler aspirations.  Whoever it is, it is time for someone to take that stand. 

Making the Window

This New York Times story about an interview with Justice Ginsburg offers a window into how the media sets the stage for political debates:

A second deadlock, in United States v. Texas, left in place a nationwide injunction blocking Mr. Obama’s plan to spare more than four million unauthorized immigrants from deportation and allow them to work. That was unfortunate, Justice Ginsburg said, but it could have been worse.
“Think what would have happened had Justice Scalia remained with us,” she said. Instead of a single sentence announcing the tie, she suggested, a five-justice majority would have issued a precedent-setting decision dealing a lasting setback to Mr. Obama and the immigrants he had tried to protect.
Justice Ginsburg noted that the case was in an early stage and could return to the Supreme Court. “By the time it gets back here, there will be nine justices,” she said.

Rather than framing United States v. Texas as a question of executive power, the Times instead situates the case in a narrative of partisanship (how does this affect President Obama?).  Moreover, it portrays President Obama as a "protector," implicitly adopting the president's narrative of his justification for his executive action.

While viewing things in a partisan manner may come easy to many in the media, the partisan lens is often not the best one.  The debate over President Obama's executive orders touches upon key issues of executive power--a topic much bigger than the short-term political fate of the current president.

Happy Birthday, USA!

On this day of national celebration, I thought it worth posting these words from John Adams to his wife, Abigail on the day of the nation's founding (which he dated as the second of July):

I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.You will think me transported with Enthusiasm but I am not. -- I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. -- Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not.