Executive Nullification Still Isn’t Part of the Constitution

President Obama’s immigration orders are perfectly constitutional – just ask him. Better yet, ask Saturday Night Live, whose skewering highlighted President Obama’s condescending attitude toward the now old-fashioned idea that the president needs Congress to change the law. “That’s adorable, you still think that’s how government works,” says Obama’s executive order.

In an unusual move, President Obama released a legal memo justifying his actions the same day that he announced them. Though drafted as legal justification by the Office of Legal Counsel (a DOJ office with alumns including Justice Antonin Scalia and the late Chief Justice William Rehnquist), the memo may also contain the seeds of the action’s demise.

President Obama is taking two actions. First, he directed the Department of Homeland Security to prioritize deportations. Those here illegally who have committed crimes or threaten national security are deported first. Those convicted of multiple or significant misdemeanors are second-tier deportation priorities. Finally, the third (and lowest) priority category include those issued a final removal order after January 1, 2014 – unless they “qualify for asylum or another form of relief under our laws.”

So far, so good – so far as the Constitution is concerned. The DOJ memo explains when an executive agency is charged by law with implementing a statute, the agency has broad “discretion to decide whether a particular violation of the law warrants prosecution.” But, even the DOJ acknowledges executive discretion has its limits.

For example, “the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite the laws to match its policy preferences.” Nor may it “consciously and expressly adopt a general policy” so sweeping as to “amount to an abdication of its statutory responsibilities.” Finally, prosecutorial discretion is most appropriate when used “on a case-by-case basis.” General policies, by contrast, pose “special risks” that the executive has exceeded his constitutional bounds.

Here’s where Obama’s plan turns unconstitutional. Part II creates a new legal status for more than four million illegal immigrants. For those who are not in a priority deportation category, President Obama will create a deferred action program that the White House describes as “a legal way to earn citizenship.” If they pass background checks, pay taxes and a penalty, and learn English, they can eventually earn their citizenship.

President Obama’s executive action leaves a fig-leaf of discretion to immigration officials. For example, an illegal immigrant who otherwise qualifies for the path to citizenship may still be denied if the official finds some factor that would “in the exercise of discretion” render the path inappropriate. The Department of Homeland Security memo, however, fails to identify any example of such a factor. The Department of Justice memo relies on this “discretion” to argue that Obama’s plan “does not create a categorical entitlement to deferred action.”

But President Obama’s rhetoric suggests otherwise – and so does common sense. Nobody is more sophisticated about immigration law than those in the shadow of the law. If this were no big deal – hey, you can exercise your discretion liberally order — immigration advocates wouldn’t be partying like its 1999. How often will Homeland Security agents actually exercise any deportation discretion for illegal immigrants who are not in the high-priority deportation categories? How often will they reject an application for the path to citizenship?

There is little doubt under the authorities cited by the DOJ memo that a court would strike an across-the-board rule as a violation of the Constitution’s “Take Care” Clause. But what happens if the “discretion” exists in theory but is never or rarely exercised in reality? When does a “guideline” become a rule?

As a matter of policy, there’s a good case to be made for a path to citizenship as part of a comprehensive immigration reform bill. There’s no functional way to find and deport everyone who is here illegally. Just as important, a path to legalization provides both the benefits and the responsibilities of citizenship – paying taxes.

Regardless of your immigration politics, all Americans should be alarmed by the precedent of Obama’s action. Our Constitution grants the president many powers, but executive nullification is not one of them. If we are to remain a nation governed by the rule of law, no single policy win can justify running roughshod over the Constitution.

Like Obamacare, the states will probably wage this legal battle, but the cases will take time to develop. Legal standing requires injury. Before filing suit, a state must incur increased costs associated with the order. These challenges will take years to wind through the courts, and, by the time of a decision, further intrusions may occur. If the president can take this action on immigration law, why not environmental or tax laws? Liberals may eventually rue the day Obama decided to take the law into his own hands.

Just Say No to Raises for Elected Officials

On Tuesday, the Citizens’ Commission on Compensation for Elected Officials recommended big pay raises for most state elected officials. Under the Commission’s plan, legislators would receive an 11 percent raise, bringing salaries to nearly $40,000, plus a 25 percent bump in per diem. Statewide officials, including the governor and attorney general, would receive an eight percent raise.

The Commission’s recommendations automatically take effect unless two-thirds of the legislature votes to disapprove them. On December 1, I will file just such a resolution.

Missouri state employees are among – if not the – lowest-paid in the entire country. In four years as your state representative, I have worked to increase state employee pay. The goal is not to put Missouri state employee pay among the ranks of California, New York, or New Jersey, where high costs-of-living and liberal state governments balloon government salaries to outpace the private sector. Instead, it is to set state salaries in line with our cost-of-living. (Current data from DED has Missouri as the 17th cheapest place to live in the country.)

In four years, state employees have benefitted from modest, but steady increases. Overall, state employee salaries have increased by more than six percent in these years. In the four years prior, I believe they stayed stagnant.

It’s not enough. Fighting for increases every year is like pulling teeth from a tiger. Until pay for state employee pay in Missouri is commensurate with our cost-of-living ranking, I won’t agree to a pay increase for elected officials.

Beyond this basic issue of fairness, however, I would still oppose an increase. Under current law, state representatives and senators earn around $36,000 a year. We’re only in session from January to May, which suggests it’s a five-month a year job. It’s not. When you add all the time up, it’s probably more like nine to ten months a year depending on how active you are as a legislator. That’s more than most people expect, but it’s still not full-time year-round job that requires a person to report for work every day from nine to five.

The current salary is just a little less than the average state employee salary. If you assume a two-worker household, it’s well above the median income for the state. Missouri legislator salaries put us far from the poor-house. Compare the work we do and the salaries we receive with that of other state employees. A Youth Specialist in the Department of Social Services working to help juvenile offenders get on the right track makes a little more than $26,000 a year. A corrections officer makes approximately $28,000 a year. Public health lab scientists earn $36,000 a year. These, and other, full-time state employees deserve an 11 percent raise more than any legislator does.

And let’s state the obvious, while it has drudgeries just like any other job, serving in the legislature is an incredible honor. Legislators get to fight every day from January to May for what all they believe to be right and just. Plus, there’s always something new to learn. For active legislators, the job has more moments of defeat than victory. (Our constitutional system is brilliantly and purposefully designed to make it hard to pass new laws.) But, when things work out, it is also incredibly uplifting.

What we do in the state legislature is important, but it does not require higher pay to encourage qualified people to run for the office. It will always involve sacrifice for Missourians with higher earning potential. There’s simply no feasible way to increase salaries high enough to attract more high-earners to the job, and that shouldn’t be the objective anyway because then the job ceases to be a public service.    

It’s amazing what happens after a person is elected: their jokes get funnier and their wits more keen. Everyone wants to be their friend. These jobs already attract those likely to think a little too highly of themselves. The sycophancy which so often envelops the work of a legislator makes it worse. It is far too easy already for legislators to develop a sense of entitlement.

Keeping elected official pay modest requires many state representatives and senators to maintain employment in the real world. Yes, it would be more convenient for legislators if their elected position paid enough to not worry about the things that concern the average Missourian. But then we’d lose the primary benefit of the citizen legislature, and we’d attract people seeking the job as a lucrative career path, and not for the right reasons of public service. Missouri government would become a little more like Washington – which is the last thing we need. For these reasons, you can count on my vote to reject the recommended pay increases for elected officials. 

Galloping Toward an Imperial Presidency

Ours is a nation of laws, not men. As Thomas Paine put, “In America, the law is king.” Hence, the “Take Care Clause” requires that the President “shall take care that the Laws be faithfully executed.”  Presidents have attempted to expand the power of the executive branch since the beginning of our country. Presidential authority to execute – or not execute – the law was vigorously debated by the First Congress, and was a key issue of President Andrew Jackson’s war on the Bank of the United States.

In March 2008, then-Senator Barack Obama campaigned on a different kind of presidency. “The biggest problems that we’re facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all,” Obama promised. “And that’s what I intend to reverse when I’m president of the United States of America.”

In 2011, after his first mid-term election shellacking when Democrats lost the House, President Obama reversed course. While most presidents have worked to expand executive power in foreign policy, after his first mid-terms, President Obama launched a deliberate, creeping expansion of executive authority in domestic policy. Among other “pen-and-a-phone” actions, President Obama granted No Child Left Behind waivers that were unsupported by federal law, made recess appointments to key positions that were later struck down by the Supreme Court, directed Homeland Security not to enforce immigration laws against students, and unilaterally delayed enforcement of Obamacare’s employer mandate.

Now, with his presidential clock ticking and zero influence in Congress, Obama has accelerated from creeping to galloping toward an imperial presidency. In the weeks since the mid-term trouncing, leaks of President Obama’s purported plan to suspend the nation’s immigration laws for more than 5 million illegal immigrants has dominated Washington. Conservative Charles Krauthammer calls it an impeachable offense, and even the liberal Washington Post has implored the president to reconsider.

Obama has acknowledged that his authority to act is, at best, a legal stretch. In 2013, he conceded it “would be very difficult to defend legally.” When asked about what he could do if Congress refused to act, he explained, “The problem is, is that I’m the president of the United States, I’m not the emperor of the United States, my job is to execute laws that are passed.”

Options to stop Obama’s encroachment are limited.

Impeachment is not realistic. It requires a two-thirds vote of the Senate. Even assuming every Republican would vote for it (unlikely), there aren’t enough Democrats who would cross the aisle. You know what you call a president who survives impeachment? Emboldened. Worse, the impeachment process will suck the air out of Washington, suffocating any positive agenda Republicans could otherwise present.

Litigation is a long-shot. Speaker Boehner is suing President Obama for repeated intrusions into Congressional power. There are some similarities between Boehner’s lawsuit and Marbury v. Madison. But Marbury’s injury was specific to him. Speaker Boehner’s lawsuit relies on congressional standing, which a judge is likely to find insufficient to allow a case to proceed under Article III of the Constitution.

Congress can pressure President Obama to relent by withholding funds but the President’s proposal is to nullify federal law by executive order. There may be some funding associated with inaction, but it won’t be much. Ultimately, however, the decision will be President Obama’s.

Presidents, particularly those in their second terms, should take the long-view. If he continues down this path, President Obama will allow his personal urgency of a short-term policy battle to undermine the checks-and-balances that have helped make ours the greatest nation in history. He may “win” this policy fight, but only temporarily – as he will make it impossible for Congress to pass a bill and his victory will be subject to reversal under the next president. And at what cost? A precedent that would permit the next president to ignore a law President Obama supports. What if the next president decides not to enforce Obamacare’s individual mandate? Or Sarbanes-Oxley? Or the top tax rate?

Elections have consequences. The President has powers that Congress has little ability to stop. With his boots in the stirrups and whip-cocked, only President Obama will determine what happens next. As the only president in modern American history with a professional background in constitutional law, President Obama must realize the precedent he’s contemplating. Mr. President, put the whip down and come off your unitary executive horse. Think like Professor Obama on this one, not the wounded, term-limited, and frustrated politician you’ve become.

Gov. Nixon’s Magic Calculator

Pop quiz. First, what does 1+1+1+1 equal? Second, what is 2,000 minus 90?

If you answered 4 and 1,910, congratulations, you’re as smart as a fourth grader. Unfortunately, you’d flunk in Gov. Nixon’s office, where the answers to simple math depend on who’s asking.

Not even a year ago, Gov. Nixon called the legislature into special session to rush through a $2.4 billion subsidy for Boeing’s production of the new 777x jet. In an unusual example of working with the legislature, Gov. Nixon drafted the bill for consideration, and his office remained heavily involved in the amendment process. The legislature moved with record speed, passing the bill in less than a week.

Current law caps the amount of “jobs tax credits” that the governor can award to businesses around the state — or at least the ones that are savvy enough to negotiate the tax credit process. At the time of the special session, Gov. Nixon had a problem. He was in the middle of negotiations for a massive subsidy to Cerner, which, if approved, would not have left enough room for a massive deal for the potential Boeing project. (In January 2014, Gov. Nixon announced a $1.4 billion subsidy for Cerner.)

For all the back-patting and self-congratulating, Senate Bill 1 from that quick special session really only did one thing – it placed an asterisk next to the 777x project or any other “aerospace project” that involved “the creation of at least two thousand new jobs within ten years” of approval by the Department of Economic Development for any proposal received before June 10, 2014. Under Senate Bill 1, the “aerospace project” tax credits would not count against the cap. To go back to the terms a fourth-grader can understand, the legislature agreed to let Gov. Nixon spend $2.4 billion of your money without using his allowance to do so.

Senate Bill 1 specifically defined “aerospace project.” First, it defined the eligible project as singular. It exempted any massive project from the cap, not a series of “projects.” Second, it required the massive project to involve the “creation of at least 2,000 jobs” within 10 years. Third, it set a short time-frame for proposals.

Fast-forward to October: Gov. Nixon announced Boeing would create 700 jobs in St. Louis to manufacture parts of the 777x wing. It’s just the latest in a series of new job announcements for Boeing in Missouri. In December 2013, it announced it would create 400 information technology jobs here. It followed that by announcing a project to add 400 research and technology jobs. In September of this year, it announced 500 new jobs to service and repair the F-22 fighter jet manufactured by Lockheed Martin.

A logical look at these proposals says it’s four separate projects involving distinct aspects of Boeing’s business. But Gov. Nixon doesn’t see it that way. For purposes of Boeing projects, 1+1+1+1 = 1. By using the magic calculator, Gov. Nixon avoid the caps.

This brand of math smacks of Bill Clinton’s infamous answer in a deposition regarding Monica Lewinsky, “it depends upon what the meaning of the word is is.” Gov. Nixon relies on two state statutes. Section 620.2005 defines a “project facility” under the Missouri Works program to include separate buildings used by a qualified company so long as they are located within 60 miles of each other. The recent Boeing proposals probably still don’t qualify. But there’s a trump card in Section 1.030 of Missouri law, which declares that, in Missouri statutes, any word in a statute “importing the singular number” applies to “several matters” as well. In other words, tack an “s” on to every statute that doesn’t have one.

Senate Bill 1′s second math question involves the number of jobs promised to be created. Piecing together 700 plus 400 plus 400 plus 500 does equal 2,000, but Boeing later announced it was laying off 90 workers in St. Louis. Suddenly, we’re back to 1,910 – if you’re using real-world math.

Gov. Nixon’s problems are beyond math. Senate Bill 1 exempts from the cap those projects “involving the creation of at least two thousand new jobs.” Sometimes to understand what a statute says, you must consider what it doesn’t say. Senate Bill 1 does not say “involving the promised creation.” Instead, it requires “the creation” of 2,000 jobs before a project is exempt from the cap. Has Boeing created 2,000 jobs? Or has it promised merely promised to create 1,910 jobs?

I can hear the response now, “But, but, but, that’s clearly not the intent of the legislation because that’s not how these programs work.” It wasn’t that long ago that Gov. Nixon was chastising the legislature for failing to draft bills precisely as they were intended. In 2013, a frustrated Gov. Nixon told reporters that legislators “ought to put their noses down and read the bills they’re passing.” Maybe Gov. Nixon should heed his own advice? Words have meaning. “The creation of” means jobs that have actually been created, not mere promises.

For Gov. Nixon, there’s a simple solution. Ask the legislature to exempt the various Boeing projects from the so-called jobs tax credits cap. Because the credits won’t start in earnest until next year, there’s still time to do this the right way. I would vote no because I don’t think removal of the cap is necessary for the Boeing jobs to be added in Missouri. Yet, I’m confident that the legislature would follow Gov. Nixon’s lead.

Unfortunately, I do not anticipate Gov. Nixon will follow a plain reading of the law on the Boeing subsidy. When he’s against a something, details matter and statutes are to be construed by their actual words. When he’s for something, who cares about details? With few to call him to task and a lawsuit unlikely or impossible, who’s to stop him?

Nothing Noble About Lies in Goverment

 

Obamacare architect Jon Gruber has confessions for you. “I mean,” he says, “this bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies.” And another, “If you had a law which said healthy people are gonna pay in, you made explicit that healthy people pay in and sick people get money, it would not have passed.” And more, “Lack of transparency is a huge political advantage.” Not finished yet, “Call it the stupidity of the American voter or whatever, but basically that was really, really critical to getting the thing to pass.” And finally, “Yeah, there’s things I wish I could change, but I’d rather have this law than not.”

Got that? Obamacare’s double-cross didn’t begin or end with President Obama’s “if you like your plan, you can keep it” promise. Instead, misdirection was baked into the bill.

Just who is Jon Gruber? He’s an MIT economics professor. He was a key consultant, and many say, the architect of Obamacare. During Congressional debate on the bill, Gruber claimed to be an objective analyst scoring the legislation in favor of the Obama administration. Later, the public learned he was on the Obama administration payroll through a $400,000 contract with the Department of Health and Human Services. The New York Times reported Gruber helped outline the basic principles of Obamacare with executive branch officials, then worked with legislative staff to draft specific language.

Gruber’s comments call to mind the so-called “noble lie” – Plato’s idea that lies are justifiable to advance what a society’s rulers believe to be the common good. During the Bush administration, liberals were obsessed with the philosopher Leo Strauss and alleged neo-conservative celebration of the “noble lie.” Yet no Bush administration insider ever said anything close to what Gruber just admitted.

There are three major (and obvious) problems with the noble lie theory. First, it’s based on a lie. Second, it is anti-democratic. Government of the people, for the people, and by the people fails when those entrusted to speak for the people believe dishonesty is noble so long as it’s for what they believe are the right reasons. Third, the noble lie is a kissing cousin of the “fatal conceit” of socialism – that there is an elite class of society capable of making decisions for us rather than relying on open, honest debate and local decisions.

American voters have grown accustom to lies and stretched-truths in campaigns from both political parties and third-party groups across the ideological spectrum. Even in the context of daily governance, we are skeptical of politicians’ statements. We expect spin. But Gruber’s confession goes beyond spin. He lays bare the knowing manipulations that propelled Obamacare to the legislative finish line.

Gruber also shows disdain for American voters who don’t sip lattes in faculty lounges, “call it the stupidity of the American voter or whatever,” he flippantly says. Democracy requires an informed citizenry. As Gruber explained, however, Obamacare was crafted to, first, fool the Congressional Budget Office into scoring the bill as not a tax increase. If the President and Congressional leaders can successfully draft legislation  to conceal their intent from the experts at CBO  – the same conclusions that   the press parrots to the public – how can anyone attribute success of that strategy to “the stupidity of the American people”?

Most Americans don’t have the time to carefully parse through poorly drafted legislation winding its way through Congress, let alone time to read a 2,700 word bill for which even then-Speaker Nancy Pelosi admitted, “We have to pass the bill to find out what’s in it.” Indeed, as a Republic, that’s why we elect representatives to Congress. Because normal Americans work real jobs and raise families. When choosing between deciphering opaque legislation or coaching T-ball, they choose T-ball.  The public is merely the final consumer of information. They trust that there will be at least a modicum of transparency in government. They expect Congress to properly draft and read bills, CBO to incisively analyze and score them and, finally, for the press to aggressively check the facts they report.

This is how freedoms works. Societies obsessed by politics and the consequences of changes in governmental power lean authoritarian. Americans trust they can disengage from the minutiae of politics because life in a free society does not depend on who’s in charge of government. But as government grows and people like Gruber are put in charge of key initiatives and institutions, the need to read the fine print also grows. His comments are Exhibit A for why Americans hate Washington and must always be on the lookout for hide-the-ball liberalism.  

Snatching Defeat from the Jaws of Victory and What Circuit Court Judges Actually Do

‘Dark Money’ Attack Ads Offend and Snatch Defeat from the Jaws of Victory

Politics ain’t beanbag, so your mother’s rule about “if you don’t have something nice to say, don’t say anything at all” does not apply. In the past six weeks, a non-stop barrage of attack ads were unleashed against Judge Joyce. The ads were paid for by groups that either don’t disclose their donors or which funnel money through a national organization. 

While nearly every other Democrat in a close race in Missouri and nationally lost, Judge Joyce prevailed. It seems to me that the consultants and secret big money donors likely snatched defeat from the jaws of victory. Though your mother’s rule does not not apply, a different rule should: those willing to spends hundreds of thousands of dollars to malign someone in a local election ought to at least have the courage and the decency to put their own name in the public domain.  

What Circuit Court Judges Actually Do

When non-lawyers think of a judge’s role, many may think of Chief Justice John Roberts’ description of a judge as umpire – they apply the rules, not make them. This concept is a perfect fit for appellate judges. They do not have the authority to determine the facts of a case – to choose which witnesses to believe or disbelieve. Instead, they take the facts as found by the trial court and apply them to the law of the case, whether that’s an administrative rule, a statute, or the Constitution.

Trial court judges have a more robust role than appellate judges. While they sometimes handle high-profile cases on the Constitution, the vast majority of their work involves criminal trials (from violent to petty offenses), divorce and custody proceedings, adult abuse allegations, debt collection and land-lord tenant cases, business disputes, and torts.

For most cases heard in circuit court, the law is not in dispute. Instead, the parties dispute the facts and how the law should apply to them. In trials, a circuit judge must make frequent rulings on the admissibility of evidence based on rules that defy labels as “conservative” or “liberal.” Instead, they are designed and have been tested over centuries as the best way to ensure that fact-finders (whether judge or jury) remain focused on reliable and fair evidence. In jury trials, the judge must also ensure that the jury instructions are accurate statements of the law.

In non-jury trials, which constitute a majority of cases, trial court judges must also determine the facts. This too is a skill not readily susceptible to partisan or ideological categorization. While the role of a circuit court judge remains the role of an umpire. But their duty to determine the facts is more difficult than a home plate umpire’s job of calling balls-and-strikes. For the umpire and appellate judge, all the facts are right in front of them. For the trial judge, the “facts” often consist of a he-said, she-said mess of contradiction and confusion. (Just think of all the different eyewitness accounts of the Michael Brown case.)  

In custody cases, the judge must determine the parenting arrangement that would be in the best interests of the child. In nasty cases, the judge must separate the bitterness that the parents feel for each other, and how it might infect the trial, with the long-term interests of the children. Business disputes require the judge to determine which side is more truthful. In criminal sentencing, the judge must weigh the facts with the law, and their knowledge of the defendant. Then they must determine the appropriate sentence – whether its prison, probation, or, for offenders with substance abuse problems, drug or DWI court.

If you have an experience with our courts, it will fall into one of these non-ideological, non-partisan boxes. And what will matter for you is whether the judge has the life experiences and temperament to make fair and impartial decisions. 

Historic Majorities Create Opportunities and Responsibilities

On Tuesday, Republicans ran the table, increasing our already veto-proof majorities in both chambers. House Republicans won nearly every every competitive race in the state, ending the night with 117 Republicans set to take office in January. On Wednesday morning, Rep. Linda Black switched parties, adding another to the total. Senate Republicans added one more seat, bringing their total to 25. The House requires 109 votes to override a veto. 

The legislative process has always been messy – no matter who has been in charge. You know the saying, laws and sausage. Bigger margins brings even greater responsibility. House Democrats lost members who were effective in spotting unintended errors in legislation. With even fewer members of the loyal opposition, the majority party must now be ever more vigilant. As one experienced legislator told me Wednesday, “We cannot allow our huge majority to turn the House ‘perfection’ calendar into the ‘good enough’ calendar.” I agree.

New House Leadership

In January, the House will be led by a new Speaker and Majority Floor Leader. Rep. John Diehl from St. Louis takes over as Speaker, and Rep. Todd Richardson from Poplar Bluff will be the Floor Leader. Both new leaders are detail-oriented lawyers able to marshal broad coalitions of legislators to pass legislation. Both are also committed to a more thoughtful approach with overwhelming majorities.  I look forward to serving with each in their new roles. 

A Time to Lead

For the first time in eight years, Republicans will return to Washington in January with control of both houses of Congress. Now what? How  Congressional Republicans answer that question may determine which party controls the White House in 2017.

Before the results were in Tuesday, Texas Senator Ted Cruz already declared the Republicans’ first priority should be Senate hearings to expose the Obama administration’s “abuse of power, the executive abuse, the regulatory abuse, the lawlessness that sadly has pervaded this administration.” Sen. McConnell disagreed and argued for “a responsible governing Republican majority.” On Thursday, he and Speaker Boehner laid out an agenda in the Wall Street Journal.

Naturally, there will be investigations of the Obama administration. But it should not be the first priority. With President Obama lingering in the White House and only a slim margin in the Senate, large and permanent conservative policy victories is unlikely in the next two years. If the Republican majority squanders its power the next two years re-litigating Obama’s first six years, it will miss a tremendous opportunity to define the agenda for the 2016 presidential election.

President Obama will not be on the ballot in 2016. Hillary Clinton will. Making the Obama administration the focus of the Republican Congress will not trap the Clinton campaign. Instead, it would invite Hillary to distance herself from President Obama with the same triangulation strategy practiced by her husband. Contrary to Cruz’s wishes, Republicans in Congress should not give her such gifts.

If the next two years are to have long-term impact, the new Republican majority must coalesce around a positive agenda, or they’ll fritter away a short-lived majority.  With Obama off the ticket, 2016 will not be a referendum election. Without an incumbent on the ballot, it will be a choice election – and the ultimate winner will be the party best able to articulate a vision for our country’s future. It may even resemble the 2008 election – which President Obama won with promises of “hope” and “change” that appealed to America’s inherent optimism. 

Rather than litigate the past, Republicans should look forward. Much of that vision requires a series of stand-offs with Senate Democrats and President Obama. First, the low-hanging fruit. Authorize  the Keystone XL pipeline and dare Democrats to filibuster it and Obama to veto it. Pass legislation to stop the backdoor carbon tax making its way through the EPA.  Extend the soon-to-expire law that keeps Internet access tax free,  an underreported issue that Senate Democrats have stalled. Shift the CDC’s focus back to infectious disease control.

Then, move to more difficult topics. Put a balanced budget on President Obama’s desk. Start an adult conversation about entitlement reform starting with Rep. Paul Ryan’s ideas. Pass a realistic immigration bill that prevents President Obama’s unlawful executive overreach, but also addresses the problems.

On health care, pass an Obamacare repeal out of the House and bring it up for lengthy debate in the Senate, where Democrats will filibuster. Then ditch the County Club collegiality rule in the Senate that permits Senators to filibuster a bill by mail. Make them stand and debate. After failing to break the filibuster because there aren’t 60 votes, offer alternatives and start working on smaller fixes. For example, repeal the medical devices tax. Allow  more flexibility for plans offered in exchanges. Grant states more flexibility in administering state Medicaid programs.

Get serious about corporate and individual tax reform. As Rep. Jeb Hensarling recently told the Wall Street Journal, “it’s a put-up or shut-up moment” for the GOP on taxes. This is a task far easier said than done. Every special interest in Washington has a piece of the tax break pie. Hensarling wonders whether Republicans have “the intestinal fortitude to be able to do fundamental tax reform.” Yet, it’s a task which the GOP must undertake.

With a positive agenda, the Republican Congress can  develop sustainable conservative policy victories and give the 2016 Republican nominee a jumpstart on a defining vision that sharply contrasts with the Democrats’ antique, clunky notions of bigger government and central planning nearly everywhere you turn.

In the midst of a crisis of government competence, now is the time to lead with a vision for smaller government. The idea of investigating the Obama administration may be enticing. After six years in the minority, there are axes to grind. But American voters are less interested in investigations of the past than they are in visions for the future. The Republican Party has earned control of Congress. It should use it to build a home, and not get sidetracked bulldozing the ramshackle cottage of the Obama administration that is collapsing in on itself.  

Jeb: The New Favorite Son

The barely-secret Jeb Bush for President Committee was in overdrive last weekend. First, Jeb’s son George P. Bush told a national audience Jeb was “moving forward” on 2016. At the same time, the New York Times reported almost the entire Bush family is pushing Jeb to run – including two former presidents. Last week, I wrote that Wisconsin’s Scott Walker would likely vault to the top of the Republican list of presidential contenders – with a big caveat, that he prevail next Tuesday against a tough challenger in a state that trends blue. No matter, Jeb Bush is the GOP favorite for the nomination the moment he formally announces.

Pundits, in turn, promptly started debunking the idea that he would be the frontrunner. They caution that Jeb’s not a perfect ideological fit, doesn’t dominate polls like Hillary Clinton does for Dems, and may suffer from what the Washington Post’s Chris Cillizza calls “the dynasty thing.”  

These critics ignore history. Since Barry Goldwater, the Republican Party has not nominated an ideologically pure candidate. Mitt Romney, John McCain, George W. Bush, Bob Dole, George H.W. Bush, Gerald Ford, Richard Nixon, and, yes, even Ronald Reagan were not entirely conservative choices.

Concerning “the dynasty thing,” the reality is a Bush has been on the Republican ticket in six of the past nine presidential elections. The “dynasty thing” didn’t stop W. from winning in 2000, and won’t stop Jeb in 2016. If anything, it helps. After six years of President Obama, rifts between the Bush brand and the Republican base heal at the specter of eight more years of a Democrat in the White House. Second, the Bush name drives a universe of support that will run and fund a national campaign. Third, his lineage ensures voters will not have a difficult time envisioning Jeb Bush as president.

Candidate Jeb’s biggest problems are his positions on immigration, education, and, remarkably, taxes. On immigration, he takes the realistic position that we cannot deport every person who is in our country illegally. There are many on the right for whom this is disqualifying, but it’s certainly not every Republican voter in the country. On education, Jeb fought for school choice and increased standards. Much to his chagrin, Jeb’s focus on improved standards, now known as Common Core, is repugnant to the many who considered it a power-grab by the Obama administration.

On taxes, Jeb’s actual record stands in stark contrast to the criticism.  As governor, he cut taxes every year, and abolished the state’s investment tax. The criticism is not of his actual record but instead derives from a comment he made in June 2012 to the House Budget Committee. Asked if he would accept a theoretical $1 increase in taxes in exchange for a $10 cut in federal spending, Bush answered, “If you could bring to me a majority of people to say that we’re going to have $10 of spending cuts for $1 of revenue enhancement – put me in, Coach.” 

That’s a far cry from support for tax increases. Rather, it’s a hypothetical answer to a difficult, but common question of governance: would you accept a major win that requires you to take something you really don’t want? Is anything short of perfect acceptable if it helps solve a long-term problem?

Governing is not war or sports. It rarely, if ever, involves total victory, and this is most true on big issues. Indeed, a willingness to accept something short of total victory is what separates doers from talkers. This is what portends to distinguish a President Jeb Bush administration from the abysmal present. Sometimes, to advance conservative policy, it might be necessary to accept – or just consider – less desirable ideas. At the time Jeb was asked this question, Democrats controlled both the presidency and the Senate, and the Bush tax cuts were set to expire at the end of the year. If Republicans did nothing, taxes would increase anyway. Jeb’s statement was a reflection of the limitations on affecting policy change in a democracy.

Our country suffers from a long-term debt problem created by Social Security, Medicare, ObamaCare subsidies, and, to a slightly lesser extent, Medicaid. It’s a math problem caused by a declining birth rate and the Baby Boomer generation reaching retirement. It’s what John McCain calls “generational theft.” 

Note what Jeb didn’t say. He didn’t say taxes should be higher or that the federal government needs more revenue. Instead, he said he’d accept a deal to avoid bankrupting our country through out-of-control entitlement spending.

I suppose instead Jeb’s critics would rather he said, “No. I’d prefer we wait to reform entitlement programs until that magical moment when the stars align with a Republican president and Congressional majorities have  the guts to  redress our national fiscal crisis by reforming entitlement programs without having to accept any ‘deal’ with Democrats or soft Republicans.”  Whether our federal government is controlled by Republicans or Democrats, that “magical moment” isn’t  happening, and those who would disqualify Jeb for this hypothetical statement must not be serious about resolving the “generational theft” that, for decades, both Republicans and Democrats have lacked the courage to fix.

Other candidates and their supporters may pound their chests and shout that they will always insist on – and win – total victories. But it won’t get us any closer to solving a debt crisis that grows larger every year.

If he’s in, Jeb must, of course, persuade Republicans to vote for him despite some differences. He must concede that, naturally, he won’t agree with every Republican on each issue, but for the Republican primary to remain relevant, it must be more than a meat grinder rejecting anything less than 100 percent purity.  He’ll argue that, while Republicans may squabble about certain policies, there are overarching ideological themes for which he would be the best messenger: the themes of liberty and opportunity, responsible and smaller government, and the power of greater economic freedom to improve the lives of all Americans.

Then, his surrogates will argue that the alternative to a Bush candidacy may be President Hillary Clinton – that for conservative ideas and causes to have a voice, they must have a champion who can win in November.  And here’s how it happens: Jeb changes the presidential map. He puts Florida’s 29 electoral votes in play, and is quite likely to compete in Ohio, Wisconsin, Michigan, Pennsylvania, Virginia, Minnesota, Colorado, Iowa, Nevada, or New Mexico – a set of states from which the Republican nominee must win three or four to reach the magical 270 votes in the Electoral College.

Jeb won’t benefit from the heir-apparent treatment Democrats appear to have reserved for Hillary Clinton. Nor should he. If he’s to be the Republican nominee, he must earn it. Though, politically, it’s an eternity until nomination day, if Jeb Bush enters this race, he’s the favorite for the Republican nomination – ideological imperfections and all.  

Scott Walker’s Big Bet: Changing the Rules of the “Permanent Campaign”

Wisconsin Governor Scott Walker is no stranger to political fights to the death. Wisconsin tilts more blue than red. While Gov. Walker and Sen. Ron Johnson rode a Republican wave to election in 2010, President Obama won the state twice. As a conservative in a swing state, Gov. Walker has always lived on the edge of electability.

After pushing tough union reforms into law, Walker became the first governor in the history of the United States to survive a recall election in 2012. He won that race by seven points. This year, Walker faces a tough re-election fight. The latest poll has Walker in a dead-heat with Democrat Mary Burke, a former Secretary of Commerce in Wisconsin and successful executive at the family-owned Trek Bicycle Corporation.

In the age of the 24-hour news cycle and Tweeting attention spans, critics on bothsides of the aisle have panned the “permanent campaign” where the politics of the next five minutes trump policy and principles. With their recall effort, Wisconsin liberals have forced Walker into the perpetual campaign. But, unlike others, Walker declines to play by those rules.

A Republican candidate running in a bluish state is typically advised: move to the middle. But that’s not Scott Walker. Instead, the New York Times reports, Walker is “talking tough” and pitching a plan to drug test Wisconsinites seeking food stamps or unemployment benefits. “The American dream isn’t how long you can sit on your couch watching TV or playing Xbox every day when you should be working and you can,” Walker told a crowd recently. This follows reports that third-party groups are supporting Walker with ads targeted to African-American voters in Wisconsin that focus on Walker’s pro-life stance and school choice.

Two important moves are afoot here. First, unlike many politicians, Gov. Walker would rather be himself and lose than shift with the wind and win. That’s a message with bipartisan appeal. You cannot run from who you are, and voters can whiff insincerity miles away. For most voters, disingenuous is a deal breaker.

Think John Kerry, “I actually did vote for it, before I voted against it.” Better yet, recall the famous John Kerry wind-surfing ad from 2004. On the flip side, think Mitt Romney. Political consultants, no matter which side, love unprincipled opponents with positions that shift with the wind.  Rather than persuade voters from both sides of an issue, wishy-washy candidates tend to alienate all sides.

Second, it seems there’s a big bet here. Gov. Walker knows that if he wins with this strategy, he has a powerful story for the presidential stump, “I’m the guy who took a conservative message to a swing state and won. Liberals threw everything they had at me three times in four years, and I never wavered from my conservative principles. To me, doing the right thing is more important than doing the expedient thing. Elect me president and I’ll bring the same attitude to Washington.”

With this campaign theme, Gov. Walker appeals to both the philosophical and the practical. Republican primary voters don’t want candidates who abandon their principles every other October. With his track record in Wisconsin, Gov. Walker appeals to ideological Republican voters looking for a candidate whom they believe will keep their campaign promises. Party pragmatists want a candidate who will win in November. If he beats Burke, Gov. Walker has ample evidence he can toss red meat in blue states and still win general elections.

If he wins, Gov. Walker may quickly move from dark-horse to front-runner. Consider the others:

Mitt Romney – Not likely to run and yesterday’s news.

Chris Christie – Upside-down in recent polls of New Jersey voters, tarnished by Bridge-gate, and  Second Amendment groups will likely oppose.

Rand Paul –Wildly popular and has the best chance to expand the Republican base, but his isolationist  tendencies on foreign policy will present serious problems in the primary.

Ted Cruz –Recent reports suggest some Republican Senate candidates in tough general election campaigns have asked him to stay away. Cruz excites conservatives, but he’ll have to show he can deliver swing-states in November.

Marco Rubio – Checks almost all the ideological boxes, and the electability box. However, he lacks Walker’s executive experience. Indeed, Rubio, Paul, and Cruz may all suffer from comparisons to President Obama – running for president, without executive experience, before completing a single full term in the United States Senate.

Jeb Bush – May not even run. He would likely vault to the top of the list, but: is the Republican base ready for another Bush?.And his support of Common Core may present a problem.

Mike Huckabee – Already threatened to split from the Republican Party and his liberal positions on economic issues betray basic GOP principles.   

If he wins, Gov. Walker will be the only candidate in the field with executive experience and nearly perfect scores for ideological purity and electability. That’s a tough combination to beat.