A Temporary Stay Of Execution

I’ve written before–see here, and here–about the deep concerns the people of Stonington, Maine have had about impending federal regulations that would drastically affect the lobster fishing that is a crucial pillar of the local economy. Those working in the lobster trade were convinced that regulations designed to protect the endangered North Atlantic right whale would make lobster fishing practically and economically impossible.

Those concerns have been deferred by recent actions by Congress and President Biden. As is often the case with Congress these days, the $1.7 trillion spending bill that was passed and then signed into law on December 29 included an array of additional provisions–including one that delays the implementation of the right whale regulations for six years. The bill also allocated $55 million to try to accomplish two tasks related to the regulations. First, some of the money will be spent to develop workable ropeless lobster fishing gear and techniques, since the right whale regulations will require an end to the traditional rope-and-buoy system that have been a foundation of Maine lobster fishing for decades. Second, the money will fund research to determine if the North Atlantic right whale is in fact found in the Gulf of Maine, and if so where and when.

An article in the Island Ad-Vantages, the local newspaper for Deer Isle, Maine, reports on the legislation and the reaction to it here. Basically, those in the lobster trade are relieved at the delay in the regulations–which they no doubt view as a kind of stay of execution of their industry–but, as the article’s apt headline states: “And now the work begins.” There are a lot of details to work out, as those involved in the lobster fishing industry need to create a process for making and responding to right whale sightings and figure out how to spend millions, including money to be allocated in future years, to create the ropeless fishing technology. That last task is a crucial one, because the concern underlying the delayed regulations is that the the endangered right whales become ensnared in the ropes that link the lobster traps on the ocean floor to the buoys on the surface. If workable ropeless technology can’t be developed, the reprieve won’t provide long-term relief.

It’s frustrating that our government can’t seem to function at a deliberate, thoughtful pace and address issues through single-focus legislation, and instead can only act through colossal, last-minute spending bills that become Christmas trees for all kinds of unrelated provisions. In this case, however, that process helped out–temporarily, at least–a beleaguered industry and local communities that are dependent on it.

Regulatory Insiders

The Wall Street Journal published an exhaustive piece of investigatory journalism this week about stock trading by senior officials and employees of federal regulatory agencies, You can see the full WSJ article here, and a summary of six “takeaways” from the reporting here. It’s a classic example of old-fashioned shoe leather reporting, but on a big scale. One of the six takeaways describes what the Journal team did:

“The Journal obtained and analyzed more than 31,000 financial-disclosure forms for about 12,000 senior career employees, political staff and presidential appointees. The review spans 2016 through 2021 and includes data on about 850,000 financial assets and more than 315,000 trades reported in stocks, bonds and funds by the officials, their spouses or dependent children.”

The fruits of the investigation justify this enormous amount of work by the reporting team, because the analysis found that thousands of federal administrative officials trade stocks in companies their agencies are actively regulating. The full article is worth reading, but let’s focus today on five of the takeaways.

First, more than 2,600 federal agency officials owned millions of dollars in stocks in companies that were lobbying their agencies. Second, officials directly owned stocks in companies whose businesses obviously would be affected by decisions made by their regulatory agencies, including Defense Department officials owning stocks in aerospace and defense companies, an EPA official owning stock in an oil and gas company, and an FDA official investing in food and drug company stocks that were supposed to be off limits. Even more amazing, some Defense Department officials owned stocks in Chinese companies that the U.S. was considering for blacklisting.

Third, The Journal investigation found dozens of examples of officials trading in stocks of companies shortly before their agencies announced enforcement actions against those companies. Fourth, 1,800 officials owned stock in Facebook, Amazon, Apple, or Google. And fifth, about 70 officials engaged in trading that most normal investors don’t even consider, like options trading or short selling, including some individual trades of between $5 million and $25 million.

The ability of regulatory officials to buy or sell stocks in companies that are under the oversight of their agencies is obviously a gaping hole in federal law. Administrative officials are supposed to be objective and dispassionate in their decisionmaking. When such officials are directly investing in companies they are regulating, often under circumstances–like trades made shortly before regulatory actions are to be announced–such conduct gives rise to reasonable suspicions that insider information might have influenced the buy or sell decision. The potential conflicts of interest are even greater when regulatory officials engage in especially risky trading tactics, such as short selling, or large-money trades. And, perhaps most concerning, the agencies in question apparently had rules prohibiting much of this conduct, but waived the rules so the trades could be made.

It’s time for members of Congress to get off their duffs, stop the constant fundraising, skip another appearance on CNN, MSNBC, or Fox News, and take a good look at the conflict of interest and stock trading rules applicable to the administrative state. A statute that requires officials to avoid any direct ownership of stocks during their service in regulatory agencies–and instead participate solely in mutual funds managed by others–seems like a good start. Given the increasing role of federal agencies in making decisions that affect our lives in countless ways, we’re entitled to some meaningful assurance that those decisions aren’t influenced by the regulators’ personal financial interests.

Better Late Than Never

Every once in a while you read a news story that really surprises you, because it addresses something that you would have bet had been resolved long ago. I had that reaction when I read about the Federal Reserve Board’s recent decision to ban ownership of individual stocks and restrict trading activity by senior Fed officials.

The Federal Reserve, as the nation’s central bank, often takes action that can affect the securities markets–whether it includes decisions about interest rates, tightening or loosening the money supply, or buying or selling bonds to try to ensure market liquidity or shore up the balance sheets of large financial institutions. Anyone who follows the financial markets knows that daily market movements, up and down, are often attributed to reactions to what the Federal Reserve has done, or said. You would be hard pressed to find any federal agency that has a more direct effect on the financial markets.

The Fed found itself caught in a controversy recently when the news media reported that certain Fed officials were buying and selling stocks while the Fed was taking aggressive action to respond to the financial fallout from the COVID-19 pandemic. Two Fed regional presidents resigned after their trading practices during the pandemic were disclosed.

Under the new rules, senior Fed officials will not be able to own individual stocks, bonds, agency securities, or derivative contracts and will be restricted to holding interests in mutual funds, which they will have to sold for a year. (Mutual funds are viewed as more diversified assets and therefore are less likely to be directly responsive to potential actions taken by the Fed.) And no trading of any kind will be permitted during times of “heightened financial market stress.”

Given all of the regulations that are imposed on every facet of American life, it’s surprising that the restrictions announced by the Fed didn’t exist already. The new rules should remove any temptation or concern about self-interested decisions, but it is also interesting that the rules are self-imposed. It might not be a bad idea for Congress to take a deeper look at the issue, and consider whether there is a need for laws to regulate the securities ownership and trading activities of Federal Reserve officials.

20 Years Later

On this 20th anniversary of the 9/11 attacks, I can’t help but remember that fateful day. Although two decades have passed, the memories of the burning, smoking towers, watching the TV news and seeing the planes converted into missiles to achieve the murderous goals of al Qaeda and Osama bin Laden, and feeling that the whole world was turned upside down, are still fresh and painful. As that terrible morning of shock and horror ended, we were able to go pick up the kids from school, and one of my lasting memories from that day was the immense feeling of relief at getting the kids into the car and bringing them home, where our family could all be together and we could be sure that all of us were safe and secure. I’ll never forget that feeling.

Twenty years is a long time, and today is a time for reflection. A lot has happened in the years since the attacks. America is still here, of course, but there is no doubt that the country has changed in the interim. That shouldn’t come as a surprise. A shock like 9/11 is bound have some long-term consequences, like a colossal rock thrown into a pond causes ripples that ultimately touch every part of the pond’s shoreline. The key point now, in my view, is to focus on where we go from here. The war in Afghanistan is over, and obviously it ended badly. How does the country respond to that reality, and will we finally learn the hard lessons that we have been taught at the cost of twenty years of fighting, thousands of American lives, and billions, if not trillions, of dollars? Or will we forget those lessons the next time a tragedy tempts a President to take the country into another foreign adventure?

And more fundamentally, where is our country headed as a free, democratic society? Just this week President Biden announced that an administrative agency is working on an emergency regulation that is designed to affect the jobs and livelihoods of tens of millions of people who have made a choice to remain unvaccinated and the companies that employ them. Those of us who remember the Schoolhouse Rock song about the process of how a bill becomes a law wonder how in the world the President can presume to exercise such extraordinary power without hearings, amendments, and ultimately a law passed by Congress that specifically authorizes such sweeping action. But in the years since 9/11, we’ve gotten used to Presidents ordering deadly drone strikes, changing policies set by prior administrations, and imposing new obligations with the stroke of a pen.

In a way, has the long road that began with 9/11 led us to this point, where Presidents feel they can unilaterally exercise such vast powers, without the checks and balances that we learned about in Civics class? And, however we may feel about the best way to deal with the COVID pandemic (and for the record, I’m vaccinated), are we comfortable with a form of government where the executive branch, and in many instances unelected administrative agencies, wield all of the power and can issue emergency decrees that would have profound impacts on the lives (and bodies) of millions of Americans, without Congress, as the collective representatives of American citizens and our diverse communities, having voted to require that course of action, set the structure for how the action will occur, established the rules, and determined the penalties for non-compliance? The likelihood that the Supreme Court undoubtedly will ultimately have its say doesn’t make up for the fact that Congress, which was intended to be the primary instrument of government, has withered into insignificance and plays no role in debating and setting such important national policies.

It’s a lot to think about on a quiet Saturday morning, 20 years after a shocking day that we will never forget. But 20 years provides some perspective, and anniversaries are good times for reflection.

Messing Around With Genes

Since 2015, Congress has included language in its funding bills to prevent the Food and Drug Administration from approving any application to create in vitro fertilization children from embryos that have been genetically modified.  Because the prohibitory language has been included in funding bills that have expiration dates, it needs to be renewed every year.  The House of Representatives just passed legislation that includes the renewal language, as part of an effort to fund certain governmental activities like food stamps and drug approvals.

The issue of genetic modification of embryos has some special urgency these days, with the recent news that Chinese scientists have announced the birth of the first genetically modified children — twin girls whose genes allegedly have been altered to supposedly make them specially resistant to HIV.  The Chinese scientists used a protein to edit the genes on a “CRISPR” — a stretch of DNA.  Some people question the validity of the Chinese claim about these so-called “CRISPR babies,” but there is no doubt that genetic manipulation of human beings is moving from the realm of science fiction to the reality of science fact.

The bar to such activities created by Congress ensures that efforts to genetically modify humans are not going to be happening in America — at least for now.  Is that a good thing?  The FDA Commissioner has said:  “Certain uses of science should be judged intolerable, and cause scientists to be cast out. The use of CRISPR to edit human embryos or germ line cells should fall into that bucket. Anything less puts the science and the entire scientific enterprise at risk.”  Others argue that Congress has taken a “meat axe” approach when it should be crafting a more nuanced policy that recognizes that some genetic manipulation could be beneficial.

It’s hard to know what’s right.  Scientists have been involved in the reproductive process for years, and their work, through processes like in vitro fertilization, has allowed people who are struggling to conceive to realize their dream of having children.  But I think the notion of scientists tinkering with genes to create “better” human beings crosses a line in several ways.  First, I’m not entirely confident that scientists know what they are doing and that there won’t be unintended, negative consequences from the removal of the genes the scientists snip out.  Anyone who has read about the history of science knows that scientists have been wrong before, and its reasonable to think they might be wrong again — only this time, their errors wouldn’t just be about the impact of certain foods or the properties of atoms, but would directly affect specific human beings.  Second, where do you draw the line in genetic manipulation?  Modifying DNA sequences to try to avoid diseases or debilitating health conditions is one thing, but what if scientists want to edit genes to create humans who are smarter, or more athletic, or taller?  Do we really want to permit the creation of “designer people” — like Khan Noonien Singh, that memorable Star Trek character who was genetically modified to be a kind of superhuman?  And finally, as this article points out, the whole issue brings up uncomfortable memories of the eugenics arguments of the early 20th century, where certain ethnic groups and traits were considered superior and others inferior.  If “improved” humans are created, where does that leave the rest of us?

In my view, this is an area where a sweeping rule makes sense — at least initially.  I think we need a lot more evidence, and a lot more thinking, before we should allow scientists to go messing around with human genetic material.

Holding Congressional Harassers Accountable

We frequently criticize the Congress in this country, and for good reason.  So when Congress does something right — and on a bipartisan basis, to boot — it’s only fair that it should be recognized.

Yesterday Congress passed legislation that would end taxpayer financing of settlements of claims of congressional harassment of staffers.  Under the current system, if a Senator or Representative is accused of sexual misconduct and decides to settle the claim, the settlement is funded by our tax dollars.  And, because settlements typically involve strong confidentiality protections, we may not even learn of the existence or nature of the harassment claim or the amount of the settlement payment.

And get this:  more than a thousand former congressional staff members wrote to Congress in support of the bill.  One of the bill’s sponsors, Democrat Jackie Speier, said that their letter “made the case all too clear, that sexual harassment in Congress was a huge problem.” Speier added:  “Time is finally up for members of Congress who think that they can sexually harass and get away with it. They will no longer be able to slink away with no one knowing that they have harassed. … They will pay back the U.S. Treasury.”

The legislation reflects a compromise, as congressional legislation typically does; it also caps lawmaker liability at $300,000 if there is actually a court finding of harassment and assessment of damages.  But at least court cases and decisions are matters of public record, so the misbehavior of the Senator or Representative will become known to all and they can be held accountable by voters for their misconduct.  In my view, that cap on damages is more than outweighed by the elimination of taxpayer funding of settlements, a requirement that Congress report on and publish such settlements, and changes to other rules to strengthen protections for congressional staffers.

I don’t like the special treatment that members of Congress routinely receive, and my tax dollars obviously shouldn’t go toward enabling congressional misbehavior and funding secret settlements to cover it up.  I’m glad Congress finally agrees with that common sense conclusion.  The bill now goes to President Trump for his consideration.  Let’s hope he also sees the light and signs it into law.

Rethinking Prison

It hasn’t gotten a lot of media attention — at least, not compared to Twitter wars and Russian collusion claims — but Congress and the Trump Administration appear to be working hard, and making progress, on a tough topic:  prison reform.

The House of Representatives passed a prison reform bill in the spring, and the Senate is now working on its version of the legislation.  President Trump has weighed in by hosting meetings of governors and federal officials and pointing to the issue in some of his tweets.  And, in an era where it seems like Republicans and Democrats never agree on anything, the prison reform bill seems to be attracting bipartisan support.

The House legislation, called the First Step Act, seeks to reduce recidivism by funding education, drug treatment, and job training programs, and allowing inmates who complete programs to earn credits that would permit them to leave prison early and complete their sentences through home confinement or a stay at a halfway house.  The Senate bill would add to the House legislation by tacking mandatory minimum sentence measures.  Among the topics being addressed are changing the “three-strikes-and-you’re out” mandatory sentence for drug offenses from life in prison to 25 years, reducing the disparity in sentences given for offenses involving crack and powder cocaine, and reducing the mandatory sentences imposed when a firearm is used in an offense.  Still other provisions would give judges more flexibility to depart from mandatory penalties when sentencing offenders for less serious offenses.

I’m glad Congress and the President are focused on prison reform.  Studies indicate that there are significant racial disparities in sentencing, and although the gap is closing, black men are still much more likely than white men to be imprisoned.  It seems that prison often makes inmates more violent and irredeemable.  And if you speak to a federal judge about their job, one topic they’re likely to mention is their frustration at the mandatory sentencing guidelines and the lack of discretion they currently have in recognizing special circumstances that would allow them to shape more appropriate sentences that are tailored to the individual defendant and his or her specific conduct.  All of these are important, substantive topics that need to be addressed.

One other thing:  prison and sentencing reform is politically thankless.  It’s easy for politicians to rail about crime and boast about tossing people into prison and throwing away the key; it’s a lot harder to look thoughtfully at a broken system and try to figure out how to fix it in a sensible way.  A vote for prison reform today might produce campaign ads about a Senator or Representative being “soft on crime” when the next election rolls around.  We’ll have to see whether these kinds of political considerations derail the prison and sentencing reform effort.

For now, though, I’ll give President Trump and Congress credit for stopping the name-calling, rolling up their sleeves, and actually working on a challenging issue.  If only other important issues could be addressed that way!

Why A “Windfall”?

If you’ve been following the aftermath of the tax reduction legislation passed by Congress and signed into law by President Trump, you’ve seen stories about how some corporations have reacted to the new law by giving their employees bonuses or cutting their charges to consumers, and other, more critical stories noting that many of the companies are giving their employees one-off bonuses, rather than more permanent raises.

But while different articles about the tax cut legislation may make different points about how the tax cut legislation is affecting companies, workers, and the country at large, the coverage does seem to have one curious common theme and descriptive element:  the tax relief provided by the new law is typically said to have produced a “windfall” for companies and individuals alike.

It’s a very interesting choice of words — and one that conveys a deeper message, too.  The Merriam-Webster Dictionary defines “windfall” as “something (such as a tree or fruit) blown down by the wind” or as “an unexpected, unearned, or sudden gain or advantage.” The key underlying concept is that the “windfall” is a lucky gift and an unearned surprise — like an inheritance from your mother’s rich second cousin whom you’d never met.

“Windfall” is a telltale choice of words in this context because tax payments necessarily have been earned by whoever is making them; companies and individuals wouldn’t be paying taxes if they hadn’t sold the products or done the work or made the investments that generated the revenue in the first place.  By calling the proceeds of a tax cut in which individuals and companies pay less a “windfall” for them, you’re really suggesting that the taxpayers aren’t entitled to their own money, the government is — and taxpayers should consider themselves lucky that, for a time at least, they get to keep more of it.

Income earned as the fruit of labor or investment isn’t like fruit blown down from a stranger’s apple tree.  You can argue about whether the tax cut was good economic or social policy, but when taxpayers get to hold on to more of the money they’ve already earned it can’t reasonably be characterized a “windfall” for them.  The fact that so many news articles nevertheless present the issue in that way says a lot about how the news media, at least, views the respective entitlements of taxpayers, and government, to the money taxpayers earn.

Shutdown Fatigue

The federal government shut down at midnight, when Congress proved to be unable to agree on a another stopgap spending bill.  As is usually the case, the Democrats and the Republicans used the looming shutdown to try to increase their leverage to obtain their political goals — whether those goals are immigration reform, or health care funding, or something else — and when neither side blinked, the shutdown occurred.  Of course, each side then blamed the other.

We’ve been through this scenario multiple times before, most recently in 2013.  We somehow made it through each of those prior cataclysms, and I’m pretty sure that the sun will come up today as well.

I may be wrong about this, but out here in the heartland I’m sensing a lot less angst, generally, about this shutdown than seemed to be the case with prior shutdowns.  Maybe it’s because we’ve been through this same, pointless charade multiple times before, and the country just has a lingering case of shutdown fatigue.  Maybe it’s because, with the flood of scandals and tweetstorms and investigations and unseemly behavior that has been washing over the nation in recent months, we’ve already used up our storehouses of outrage and have just been psychologically bludgeoned until we’re functionally insensate.  Or maybe, just maybe, we’ve come to recognize that all of this shutdown stuff is just more callous political maneuvering by both parties, and we’re heartily sick and tired of being viewed as mere pawns to be manipulated in the stupid power games that are always being played in Washington, D.C.

Whatever the cause, we’ll just go on living our lives, without paying too much attention to the yammering politicos and their efforts to pin all of the blame for this unnecessary disruption and unending dysfunctionality and irresponsibility somewhere else.  Who knows?  Maybe if we just ignore this latest shutdown, the politicians might realize that their shutdown gambit isn’t working anymore and actually go back to doing their jobs.

Where Have All The Deficit-Cutters Gone?

From time to time, both Republicans and Democrats express concern about the out-of-control accumulation of federal debt and the annual federal budget deficit.  Republicans raise the issue when they want to get elected.  Democrats raise the issue when they want to stop the GOP from cutting taxes.

But in reality, and for years now, no one in either party has done anything meaningful about the ever-growing national debt.

Consider what’s going on now.  Republicans have been laboring over a tax bill for months, and are supposed to get it through Congress and to President Trump this week.  Of course, tax relief is an easier political sell, as rates paid by various constituencies, and backroom deals, get cut.  But where are we on spending?  Well, the House Republicans apparently want to “temporarily” extend spending for most agencies at current levels, with a $650 million increase in defense spending.  In the Senate, where Democrats hold the balance of power because of the filibuster, Democratic leaders say that we need to have equivalent increases in defense and non-defense spending.  Oh, and there’s this, too:  we’re facing another one of those stupid self-inflicted shutdown points, where some government activity will stop unless a spending bill is signed into law by Friday.

So let’s take stock here.  The House Republicans want to hold spending steady, except for an increase in defense spending — i.e., increase spending.  The Senate Democrats want to increase defense and non-defense spending — i.e., increase spending.  And our elected representatives have conveniently maneuvered themselves into a position where they can say that they need to cut a deal that will no doubt increase spending in order to avoid a partial government shutdown.  And by the way, there is absolutely no sign of the kind of thoughtful review of the thousands of ongoing government programs and subsidies and agencies to determine whether they are truly needed and should be modified or eliminated outright — which is what truly committed and rational deficit-cutters would be trying to accomplish.

Gee . . . I wonder why Congress’ credibility with American voters is so low?

Hang On To Your Wallets

Here’s some news that should cause all taxpaying Americans to feel a cold, hard lump in the pit of their stomachs:  Congress has decided to focus on “tax reform.”

Congress’ decision to pivot to tax reform has produced all kinds of news stories, most of which have headlines that can only stoke the angst.  What does the proposed tax reform bill means for the value of your home?  What kind of hidden tax brackets might be found deep in the dense language of the proposed bill?  How will small business owners be affected?  What company’s stock price took a dive because the bill proposes repealing a crucial tax break?  All of these stories, and more, can be found simply by running a google search on “republican tax bill.”

The stories are indirectly reflective of the key problem with the federal tax code, because the many different areas of potential concern they address shows just how wide and deep is the reach and impact of our federal tax structure.  Virtually every company, industry, form of property, job, trade, college, technology, and concept is affected by some form of federal tax or federal tax break.  At the founding of the republic, Alexander Hamilton may have devised a simple approach to raising revenue to fund the federal government, but those days are long gone.  Now, the tax code is a complicated morass far beyond the ken of the average citizen, with special rates and breaks and benefits and exclusions and surcharges that only experts and lobbyists understand.

So, given that reality, why should the average citizen be concerned that Congress has decided it’s time to mess around with the tax code?  Because our political class, Republicans and Democrats alike, have shown they are primarily interested in raising lots of money so they can be reelected . . . which means the risk that some special provision written specifically to help a large donor will be inserted in the dead of night simply can’t be ignored.  And with the Dealmaker-In-Chief in the White House, who’s going to really dive into the details of whatever gets passed, trying to make sure that the average citizen doesn’t get gored while the special interests get their perks and sweetheart deals?

Maybe it all will work out, and the tax code will be made more fair and equitable and easy to understand, and we’ll be able to file our tax returns on postcards like the photo op pictures are indicating.  Maybe — but I’ll believe it when I see it.  Until then, I’m hanging on to my wallet.

When Not Even Early-Morning Baseball Practice Is Safe

Yesterday members of the Republican congressional baseball team met early in the morning for a practice session in advance of an upcoming game against a team of Democrats.  The annual game, which gets played in the stadium where the Nationals play and typically produces lots of money for charity, is one of the handful of remaining vestiges of civility and across-the-aisle cooperation that can still be found in our increasingly polarized national politics.

But the world being what it is these days, even an early-morning baseball practice is no longer safe.  A heavily armed gunman, who has been identified as James Hodgkinson, showed up and began firing — apparently with the intention of killing Republicans.  He shot  Congressman Steve Scalise, who remains in critical condition, and others as well before engaging in a firefight with authorities and sustaining fatal injuries.  In view of the fact that the gunman got off dozens of rounds, and the players practicing on the field were described as “sitting ducks,” it’s almost miraculous that more people weren’t killed or seriously injured.  Those who were present say that the heroism and prompt actions of police saved many lives.

The shooter is described as a Bernie Sanders supporter who hated Republicans — but in reality you could just call him a nut, based on what he’s written and posted to social media.  Senator Sanders immediately disavowed what the shooter did, because of course Sanders’ political positions don’t call for his supporters to engage in murderous violence.  And yet there are people out there on the fringes, at both ends of the political spectrum, who can’t simply content themselves with political opposition and have to take the next step, and the next, first into more vitriolic speech and imagery and ultimately into some kind of twisted mindset where going to a baseball practice and shooting whoever is out of the field seems like the right thing to do.

There have always been nuts out there.  What’s discouraging about the modern world is that there seem to be more of them ready to act out their disturbed impulses, heedless of who might get hurt.  And now we’ve reached the point where even a simple baseball practice isn’t safe.

The baseball game is going to be played, by the way.  That’s a good thing, I think, but it’s the only good thing about this whole ugly episode.  And you inevitably wonder:  how many more nuts are lurking out there, thinking the answer to what troubles them is a lot of indiscriminate killing?

 

Chickens, Meet Roost

Hang on to your hats, folks!  Yesterday, the new Congress was sworn in, and amidst the first-day activities — which featured an ill-considered effort by House Republicans to change the powers of an ethics investigative unit, that was abruptly reversed in the face of criticism from the media, Democrats, and Donald Trump — we started to get a sense of what might be coming in the next few months, after the new President is sworn in, too.

Two things seem pretty clear.  First, President-elect Trump and the Republicans in Congress are serious about taking aim at some parts of President Obama’s agenda.  Second, some of the methods used by the Democrats over the last eight years to implement that agenda are now ready to be used by Republicans to reverse course.

For example, President Obama has been very active in setting policy through executive orders, rather than by obtaining changes through the congressional process.  In fact, the President is continuing to issue executive orders and probably will continue to do so until the Trump Administration takes office.  Similarly, the Obama Administration has issued regulatory guidance that changes the prevailing approach in a number of areas.  But what can be achieved through executive orders also can be undone by executive orders, and the Trump Administration has indicated that it plans to do precisely that.

In short, because President Obama was unable to convince Congress to enact many of his policy initiatives, those initiatives are ready to be changed at the stroke of a pen.  President Obama recognizes this; in fact, he recently urged Trump to try to govern through legislation, rather than executive order, for this very reason.  Republicans said President Obama’s advice against overuse of executive orders was “ironic,” but in any case it is clear that many of his executive orders are going to be reversed when President Trump takes office.  We don’t know yet exactly how extensive the changes will be, but don’t be surprised if the coverage of Trump’s first day in office includes footage of him signing a series of executive orders to change Obama Administration policies.

You’ll also recall that, during the Obama Administration, the Democrats who controlled the Senate exercised the “nuclear option” and changed certain internal rules about how many votes were needed to overcome filibusters.  Now New York Senator Chuck Schumer, the new head of Senate Democrats, regrets that the Democrats took that action — because it will make it tougher for Democrats to oppose and block confirmation of Trump’s selections for positions in his Cabinet.

It’s all pretty predictable.  You can think about chickens coming home to roost, sauce for the goose and sauce for the gander, and what goes around coming around — but the reality is that, with the pendulum swings we’ve seen in voting for President and for the Congress, anything that isn’t enacted into law through the legislative process contemplated by the Constitution will be immediately subject to change when the power shifts again, and that every procedural maneuver used to further one side’s agenda will be hauled out and used anew when the other side takes over.

It’s not a good way to govern.

A Gutless Wonder

Washington, D.C. is all agog about “Congressman X,” the Democratic member of Congress who has anonymously penned a 65-page book called “The Confessions of Congressman X” about how corrupt, cynical, and phony members of Congress are.  One chapter, for example, is entitled “Harry Reid’s a Pompous Ass.”

Well, of course he is.  In fact, so is every member of Congress.  And, for that matter, so is “Congressman X.”

Here’s what I want to know:  why doesn’t Congressman X confess for the record?  Why doesn’t he have the guts to identify himself and express those opinions for attribution?

In my view, the sad tale of “Congressman X” is the problem, writ large, with our “public servants” right now.  They’re gutless.  They’re so chickenshit, one and all, irrespective of party, that they gladly prostitute themselves for lobbyists and spend all of their time fundraising so they can be returned to the Washington merry-go-round next term.  And when “Congressman X” nears the end of his “service,” he writes an anonymous tell-all book so he can make even more money from his period of “public service.”  It’s tawdry and appalling — but it’s so Washington, D.C.

No one has the fortitude or the principles to stand up and be counted.  And that’s why we have a dysfunctional government in which the legislative branch — which the Founders designed to be the most powerful of the coordinate branches of government — has steadily yielded power to the executive branch and the judiciary, to the point where we now have a federal government that is largely governed by executive decree rather than legislation considered, drafted, and debated by the “people’s representatives.”

So I say that “Congressman X” can bite me.  A pox on his house, and a pox on all of their houses.  Won’t anyone in D.C. stand up and be counted for a change?

 

Guns, Doctors, Patients, And Medical Privacy

Yesterday the Obama Administration announced some new gun control measures.  Because President Obama issued executive orders, rather than proposing legislation to be debated and approved by Congress, most of the attention was on whether the President overstepped his authority and violated the intended constitutional balance of powers between the executive and legislative branches.

I’d like to focus on a different, substantive element of the changes announced yesterday:  namely, changes to a federal law protecting the privacy of certain health information to allow reporting of individuals who would fall within the mental health prohibitions of the federal gun background check law.  Politico reports that the new rule “enables health care providers to report the names of mentally ill patients to an FBI firearms background check system.”  Diagnostic information about the nature of the mental health condition being treated, however, would still be subject to privacy restrictions.

The announcement of the new rule by the Department of Health and Human Services uses the kind of dense, acronym-filled administrative jargon that makes ordinary people scratch their heads and throw up their hands, and it is not entirely clear the extent to which it applies to doctors — although the HHS announcement acknowledges that a number of comments it received about the rule expressed concerns about how the reporting issue would affect the “patient-provider treatment relationship and individuals’ willingness to seek needed mental health care.”

This is a difficult issue, because we’ve seen, over and over again, the carnage that can ensue when a mentally disturbed person builds an arsenal and then acts out their disturbed fantasies.  We want to keep those people from buying guns.  At the same time, however, notions of doctor-patient confidentiality are important — most states have laws or rules of evidence that protect such confidentiality — and exist precisely to encourage people to see a doctor and, in this example, seek treatment for their mental health issues.  New rules, even permissive ones, that could interfere with that confidentiality raise a legitimate concern, because if people who might otherwise seek treatment understand that by doing so they risk being disclosed to a federal database as mentally unfit, they may decline to seek treatment in the first place.  And if physician reporting of information that would disqualify a patient under the gun purchase laws is permissive, and a physician chooses not to report a patient who fits such criteria and the patient then acts on their fantasies, can the physician be sued for failing to report?  And, if the answer to that question is yes, won’t reporting become routine — and therefore the prospect of discouraging people from receiving treatment in the first place become even more likely?

No one wants to see mentally unbalanced people get their hands on guns, and we’ll have to see how these new rules play out, but this is a very sensitive area.  If the new regulations have the effect of discouraging people from seeking needed mental health treatment, they may unintentionally compound the problem.