In Ferguson, We See Many Self-Fulfilling Prophecies

In Tom Wolfe's 1987 novel, The Bonfire of the Vanities, a rich, white stock trader is in an automobile accident. His car is seen running over a black teen late at night and then leaving the scene. The novel  is written as a satyrical morality play. It is a morality play because Wolfe focuses on the decay of society across the entire social and economic spectrum. It is a satire because there are no good guys. The crisis begins with the "slaughtered" young black man being portrayed as an innocent child, heading to college, who was "never in trouble," and who was viciously run down by an uncaring white man who had taken a wrong turn in his big, black Mercedes. Almost immediately, the activists come out to "support the family." The politicians make inflammatory statements about bringing the white man to justice. The prosecutor commits himself to an all out effort to get a conviction, regardless of the evidence, and the protesters take to the streets to ensure that "justice is done." 

As the story unfolds, however, we find that the young black man was in fact not so innocent. He had some criminal history, and in fact had likely set up a road block on the street with his friend to trap and rob motorists at the time of the accident. Of course, by the time the truth comes out, everyone is married to their positions and no one can retreat without being humiliated. Everyone digs in.

In my only other article on this topic http://libertyswindow.blogspot.com/2014/08/the-sad-and-unavoidable-story-of.html, I cautioned everyone to wait and see all of the evidence before committing to treating Michael Brown as either a martyr or a criminal. We did not yet know whether Officer Wilson was a racist who shot a surrendering black teenager or whether the shooting was reasonably justified under the circumstances. Unfortunately, relative ignorance did not stop the speculation. The Governor of Missouri, for example, called on the grand jury to indict, even though he himself had not seen all the evidence. President Obama, addressing the United Nations, used Ferguson as an example of the "racial divide" in the United States, unnecessarily elevating the issue, and Michael Brown, to an issue of international importance. Then of course there were all the Al Sharpton's and Jessee Jacksons on the ground, digging in on the issue and encouraging others to jump into the foxhole with them. All of this set the stage for enormous confusion and disappointment when the grand jury found that there was insufficient evidence to indict officer Wilson on any of the seven charges.

And so the bonfires were set. "Burn this bitch down," Michael Brown's stepfather said, standing next to another man wearing a "No Justice No Peace" t-shirt. As the small business district in Ferguson was looted and burned, I couldn't help but to think how much of all of this was the result of a series of self-fulfilling prophecies.

First, and most obviously, everyone from the President down to the local police chief basically accepted that rioting would happen; that ordinary people could not contain their disappointment and express it in a non-violent or constructive way. In effect rioting was inevitable because, after viewing the evidence, the outcome of the grand jury was a near certainty. Our leadership decided that rioting would be an "expected" response to the result, regardless of how just that result might be. Then, just as with the riots over the summer, the vast majority of the police resources were withheld so not to be seen as "interfering" with "legitimate protests." As a result, business burned, and those businesses will not be coming back.

Also inevitable was the grand jury's decision. There was obviously very little evidence to support the "racist white cop shoots an unarmed child with his hands up" story. The early facts had already shown, in the clearest possible way, that Michael Brown had bull rushed a convenience store clerk just minutes before the confrontation with officer Wilson. As a result, the early allegation that he had also bull rushed the officer was not altogether unlikely. Again, investigations needed to be completed and the facts needed to be reviewed before any conclusions were drawn.

It now appears that there was no reason to even charge Darren Wilson, much less subject the public to a months long emotional build up during the grand jury process. Everyone privy to the evidence had to have known that the grand jury process would only lead to disappointment to Brown supporters looking for "justice." The delay in closing this case allowed, maybe even forced, supporters of Brown to become married to the false narrative. Then, after months of advocating the "racist cop shoots boy" narrative, there was no going back. The disappointment then was inevitable and yet another prophecy was fulfilled when the "racist cop" was set free.

Then there are the future prophecies which will inevitably become fulfilled. Darren Wilson's life is over. He is either a dead man walking, or he will be moving to some remote part of Idaho or Montana and working in relative obscurity. His life will never return to normal. Do not make the mistake of thinking that every police officer in this country isn't watching this, regardless of race. It would not be surprising if we started seeing fewer and fewer police officers willing to work in low income black neighborhoods for fear that, if placed in a similar situation, they too will have their lives ruined. Fewer police officers will result in more crime, and more crime will result in fewer businesses and fewer jobs, which will result in even more poverty and despair in these neighborhoods. The "crumbling inner city" prophecy then becomes fulfilled.

Finally, by focusing on stories like Ferguson, our nation overlooks the real institutional racism that continues to plague black communities. I have no doubt that there are some racist cops out there who harass blacks because of their skin color. Darren Wilson, however, is not one of them. Similarly, I have no doubt that innocent young black men are subjected to additional police scrutiny without cause. Michael Brown, however, was not one of those young men. But, by making men like Wilson the bad guy and men like Michael Brown the martyr, all evidence being to the contrary, the race issues that really need to addressed are dismissed as "overblown," and the messengers not credible. President Obama, for example, addressed the nation on the first night of riots, condemning violence and calling for calm. He also, however, acknowledged the legitimacy of the protests. The problem is, a cause that is entirely based on a false narrative is not a legitimate cause. Protesting the fact that a uniformed police officer was not criminally charged for using deadly force against his attacker is not a "legitimate protest." The President and the Attorney General continue to feed this inflammatory, false narrative by insisting that the protests associated with Darren Wilson's release are legitimate. They are implying that the "legitimate" result; i.e. the one that would not have been deserving of protest, was to have Darren Wilson indicted. That is not how our system works and the President and the Attorney General should be the most vociferous defenders of the result in this case.

The President and other civil rights leaders should instead be focused on systemic issues that, while affecting all races, disproportionately affect blacks. For example, a system that throws a black single mother of 4 in prison for 20 years because she was in the same house as her boyfriend when he was busted with drugs and guns is unjust. A system that puts a black 18 year old away for life for holding a dime bag because he was on his "third strike" is unjust. A criminal justice system that removes sentencing discretion from judges and instead imposes mandatory sentencing on every citizen is unjust. Racism is having so many little laws that police basically have plenary power to stop you and search you at random. Racism is requiring young black children to stay in failing schools, surrounded by drugs and violence, rather than offering black families real choices for their children's education. And, yes, racism is aggressive profiling and "stop and frisk" policies that allow police to treat all of us, particularly blacks, as criminals just for walking down the street.

But none of that has anything to do with Ferguson, Michael Brown or Darren Wilson. The saddest part of the Ferguson story is that it will all happen again. Our leaders have demonstrated that they have no desire to fix the real institutional problems that cause us to distrust those institutions that govern us, both black and white. It is that distrust that causes us to jump to conclusions when we see police use force, or when hear government officials talk about "justice" in the abstract. It is the broad distrust of all of our institutions that must be fixed if we want to see real change in our communities. 

In the future, Ferguson will be remembered as the place where all the vanities gathered to be burned as a sacrifice, so that we could continue to avoid addressing the real institutional problems we face.

The Good And The Bad Of President Obama's Immigration Plan

Although it was not covered by any major network, President Obama last night announced that he would issue an executive order on immigration. This was a widely expected move that has Republicans outraged and Democrats running scared. The long of the short of it is this: It is unremarkable and will do more harm than good to the Democratic party.

I know most of my Republican friends will disagree, but on the substance, he really isn't doing anything remarkable. Tens of millions of immigrants already live in this country illegally. He is right, they are not going anywhere. There is absolutely zero public support for any kind of campaign of mass deportation. As a result, and all sympathies aside, these people are, in fact, here to stay. We're just going to have to get over that. More importantly, we don't know where they are, they already use our social support network, and they do not pay taxes. While most of them have jobs, which is the primary reason they come here, we never see a dime of tax money to offset the resources they use. Finally, nearly 60% of Americans already favor "a path to citizenship." President Obama is offering something far less. The President's plan does nothing more than stop deportations and leaves it to subsequent presidents to undo what he has done if they so choose. In essence, no one is becoming legalized but they are being allowed to stay, which they are de facto doing anyway, and most Americans do not oppose.

Once again, however, President Obama has executed his plan in the clumsiest of ways. He has a new Congress and he has picked a fight that ultimately "poisons the well," as well as alienates members of his own party. He probably thinks he is being clever. He thinks he is going to bait the Republicans into shutting down the government, or impeachment, or some other such unpopular move. He is trying to divide his opponents with this issue after getting clobbered in the last election. Unfortunately for President Obama, the Republicans can and will badly outflank him with this issue. 

First, it' s actually a wedge issue for his party, not the GOP. He has miscalculated. Mary Landrieu, for example, fighting for her Democratic Senate seat in a runoff election in Louisiana, is now doomed. Not only did her party refuse to pass authorization for the Keystone Pipeline, but even if they had, President Obama vowed to veto it. Then, two days later, the President announces a move on immigration that has virtually no support in her state. She's done, and the Democrats now lose another incumbent Senator. Moreover, whatever conservative Democrats are left will see the proverbial writing on the wall and either switch parties (like in 1994), or lose their next elections. A number of moderate Democrats came out against the President's plan before he even gave his speech. That will not change. 

The President's action is self-defeating in another important way, however. If it was his political calculation that the long term health of the party requires an influx of new immigrant voters, he has failed in every possible way. For one, his own plan does not provide them with citizenship, which is required to vote. He just won the hearts and minds of a group of non-voters at the expense of a huge number of swing voters. That's just not smart politics. More importantly however, by acting unilaterally, President Obama took all of the pressure off conservative Republicans to vote on a compromise bill. Instead, the Republicans (if they're smart) will just let the President's executive order stand and pass a series of tough border bills that essentially end cross-border migration for generations. Since upwards of 85% of Americans favor "closing the border," the President and his party risk utter annihilation if he chooses to use the veto. Because President Obama acted unilaterally and without Congressional approval, it is assumed that he got exactly what he wanted when he did so. Now the Republicans can take him to task on the border without regard to the other more controversial issues surrounding immigration reform.

In the final analysis, there was very little benefit to the President or his party by acting unilaterally on immigration reform. To the contrary, he has marginalized moderate members of his own party and, like with his other "achievements," he has handed the opposition yet another tool to clobber him with. He could have waited. He could have forced Republicans into a debate about dividing families and children. He could've used the issue in the new Congress to make Republicans look unsympathetic to to the plight of immigrants in a nation of immigrants. Instead, he did exactly what he wanted to do on the issue, and it wasn't that much. 

Among the "Stupid Americans," Jonathan Gruber is the Stupidest.

As the proponents of the Affordable Care Act (Obamacare) run for cover, one of the chief architects of the law, Jonathan Gruber, continues his campaign of friendly fire against the Democrats. In case you missed it, Mr. Gruber was recorded giving lectures on more than a dozen occasions in which he revealed that the ACA was drafted in a deliberately vague way so as to fool the "stupid American voters." In these videos, which you can easily find on youtube, Mr. Gruber lectures Ivy League students about how the law was drafted and passed. In the course of these lectures, he cannot contain his contempt for the American public and what, in his eyes, is their relative lack of sophistication. He waxes poetic about how he and his counterparts in the Administration used subterfuge and deceit to obfuscate the real purpose and cost of the bill. He then repeats, over and over, as if it were some kind of mantra, that this was "only possible," because of the "stupidity" of the American voter. "If they had known what was in it," he says, "it would never have passed."

Well, if we were to take as true Mr. Gruber's pronouncement that American voters are stupid, then Mr. Gruber is the stupidest, and his statements conclusively demonstrate a fundamental misunderstanding about how our republic works.

You see, Mr. Gruber, the "stupid American voter" never voted on Obamacare. In fact, the people Mr. Gruber duped were the "professional" Congressmen and Senators who foolishly took his representations as true, who never read the bill, and who traded political favors for votes. Moreover, the first chance the American voters had to vote on Obamacare, it resulted in a "wave election" against the Democratic Party. The "stupid American voter" Mr. Gruber is so fond of mocking actually threw his party out of office because of Obamacare and the way it was passed. The law has never enjoyed anything even approaching a majority of support from the "stupid American voters," and it has continued to be an albatross around the necks of Democrats in every subsequent election.

This is exactly why the average American hates politics and politicians. Ivory tower, Ivy League elites, feathering their nests with taxpayer money, run around Washington deceiving our ridiculously gullible elected officials into passing bad laws. To add insult to injury, they call us "stupid" and "too stupid," and "rubes" and whatever else. They insult our intelligence while they build their new homes with taxpayer money gained by admitted acts of fraud.

And then they can't even get the insult right. What Mr. Gruber meant to say is that the "stupid American Congressman" was easily deceived into voting for his scam. The "stupid American politician" is not going to ask any questions, and he knows this. They will simply "pass the bill so that we can see what's in it," to quote Nanci Pelosi, former Speaker of the House, and gullible victim of this fraud. At no point did the American people vote on Obamacare and, if they had, the "stupid American voters" would have defeated it.

Whatever Mr. Gruber paid for his Ivy League education, he should demand a refund. He can then take that money and repay the $3.2 million he pilfered from taxpayers in "consulting fees" while selling snake oil to our elected representatives. If there's any left, he should audit a few junior high school civics classes so he can learn how a republic actually works and possibly upgrade his mocking skills by watching the other children in the room.

Obama Continues to Struggle with Foreign Policy; Our Rivals March On.

President Obama returns this week from his "foreign policy pivot," hoping his high profile visit to China and the G20 Summit will mute some of the domestic criticism. Presidents tend to turn to foreign policy when they are struggling at home as a way of reminding everyone of the extraordinary power and reach of the presidency. Unfortunately for the President, not only did his trip exacerbate already high tensions domestically, but it also reaffirmed for the American voters the reasons they voted against him in the last election.

As President Obama met with China's leaders, the Chinese were finishing up yet another muti-billion dollar gas deal with Russian President, Vladimir Putin. Putin has successfully negotiated three such agreements, ensuring that whatever sanctions the West place on his oil and gas industry will be offset by new money flowing in from Asia. You can get some background on his strategy here:

http://libertyswindow.blogspot.com/2014/07/putins-game.html

http://libertyswindow.blogspot.com/2014/07/defending-putins-gambit.html

These energy deals also give Putin significant immediate leverage over Western Europe, just as winter comes. Most of Ukraine's heat comes from Russian gas. About 40% of Western Europe's gas heat comes from Russian gas. Western leaders have been assuming that, if worse comes to worse, they could levy "crippling sanctions" on Russia's oil and gas sectors, but really the contrary is true. Putin can cripple Ukraine without firing a shot, and hold Europe in check by the shock to their economies. They have underestimated him.

Meanwhile, President Obama also negotiated a deal with the Chinese. Not to bring down the trade deficit, or expand open markets, or protect intellectual property rights being pilfered by Chinese hackers. Nope. President Obama negotiated an environmental treaty that would cut American greenhouse emissions by 28% by 2028, while the Chinese will agree to "reach peak emissions" by 2030. In other words, we will cut our energy production, place further regulations on our energy sector and pass those costs along to Americans while the Chinese increase emissions for another 16 years. Now, even assuming the propriety of focussing on climate change rather than the long list of other problems between our two nations, President Obama got snowed. Then, as he inked his surrender on the issue, China rubbed some dirt in his eye by demonstrating their new stealth fighter, reverse engineered from stolen U.S. blueprints for the F-35. The optics for the President could not have been worse.

Unfortunately, this is what American voters have come to expect from President Obama and the left wing of his party. This is why they lost the last election so badly. The President travels overseas, focusses on a narrow, comparatively minor issue, and then can't even do that effectively. Meanwhile he stands by and watches the country get humiliated by someone else's military development, comes home and remains completely oblivious to the real threat of Russian strategic expansion.

And ISIS beheaded another American over the weekend.

It is this inescapable feeling that the world is on the brink and that the President is whistling past the graveyard that has led a large majority of Americans to question his leadership and the wisdom of allowing Democrats to stay in power in any capacity. It is a question of basic competence for most Americans. We cannot allow Vladimir Putin to outflank us at every turn. He has not withdrawn from Ukraine, he continues to supply new weapons to the rebels, and he continues to use direct military assets to obstruct Ukrainian efforts to end hostilities. Let us also not forget that he shot down a passenger airliner, killing 298 men, women and children. When winter is finally at its peak, the world will see the true scope of his global reach.

The world's problems are very complex and there is no one right answer to solve any of them. It is beyond arrogant for anyone or any party, including Republicans, to assume that they have a monopoly on bringing about "world peace," or to ushering in a new era of cooperation. It will also take a lot more time and a sustained effort to bring our rivals to heel and get our nation back on track. It starts, however, with setting priorities, and that is where the President can make a huge impact. By setting the right priorities, he can signal to the American people that he understands the problems we face and begin winning back our confidence for his legacy and his party.

If I Were The Father Of An NCAA Football Player...

On Saturday, my beloved Bulldogs stormed past Auburn in a 34-7 rout. The victory was possible, in no small measure, by the return of suspended junior running back, Todd Gurley. You can see my post about his unwarranted suspension here. http://libertyswindow.blogspot.com/2014/10/the-battle-royal.html. On Saturday night, with only a few minutes left in the game, he was carted off to the hospital. Early reports are that he has torn a ligament in his knee, which would end his season.

As it turns out, Todd Gurley took $3,000.00 (not $400.00 as originally reported), which led to a four game suspension instead of a two game suspension. The NCAA believes that it demonstrated "mercy" by not enhancing the penalty since Mr. Gurley had taken money from more than one source. Gurley was required to sit the four games, "make restitution" and perform "community service." 

Now, I am a lawyer. "Making restitution," and "performing community service" are terms of art. They are reserved for criminals and thieves. They are pronouncements made from a person wearing a black robe, sitting high on a bench, empowered with the rule of law to impose penalties for crimes against society. The problem is, Todd Gurley is no criminal. He did not steal $3,000.00 from anyone. Nor is the NCAA a judging body, empowered by our society to mete out justice to "wayward black kids" who sign autographs in exchange for money. Nevertheless, they treated him like a criminal.

If this injury is what the early reports say it is, Gurley will have potentially lost millions of dollars of money in the NFL Draft. Gurley was a consensus first round pick, which would earn him a cool $10 million or so playing on Sundays. He may now be relegated to the second or third round, which would still make him a millionaire, but he would have to demonstrate a full recovery from the injury before anyone will risk that kind of money on a college player.

Sadly, Gurley may be joining a long list of NCAA football players who make the choice to return only to be injured, see millions evaporate, and end their football careers on a bitter note. Gurley didn't have to come back. He was obviously a little rusty. As anyone who has ever seriously played competitive sports can tell you, things don't work quite the same after sitting for four weeks. Ligaments are a little tighter, cuts are little more awkward. The game is a little faster. Gurley, however, didn't have to accept reinstatement, or carry the ball 29 times in his first game back. He could've just declined reinstatement, gone to football camp, and waited for the draft. His body of work in three years was more than enough to guarantee him a top draft spot. 

But by all accounts, Todd is a good young man. He wanted to come back to "play for his team," and his coaches. He didn't want to be seen ending his career as a "criminal" or a rules violator. He wanted to show the world that he was a team player. And he is. If his career at Georgia ends this way, it will be extremely disappointing for Todd and his fans. But whether his injury is season ending or not, if I were Todd's father, he has played his last NCAA game. Here's why.

It is a father's duty to protect his son's health, be it from drugs or from serious injuries. A father also has a duty to protect his son from exercising poor judgment, like accepting money from predatory jock sniffers who take advantage of him for some autographs. It is also a father's duty, however, to protect his son from exploitation. After watching my son being treated like a gangbanger in an orange jumpsuit for trading on his name and likeness, I'd be done with the NCAA. They no longer get the millions they were making off my boy. The school no longer gets his skills as a ball carrier to vault them past rivals and rake in even more millions in ticket and memorabilia sales. And the sports writers no longer get to make millions off of the "redemption" storyline as my boy's face is plastered across ESPN. Respect is a two way street. My son made a mistake. He did not rape anyone, he did not get drunk and fight. He didn't crash his car into a busload of children. He did not cheat on an exam. He signed autographs, and for that, he was kept out of play and humiliated on national television by an old, white, cabal that has long since outlived its usefulness. I would've told my son to quietly bow out, and go to the pros.

Instead, Todd Gurley Sr. now has to worry about his son's future. He worries, like all fathers do, that his son won't be able to achieve all that he can achieve as a football player and has a man. He worries that his son's life long dreams may be compromised, if not totally gone. Of course, if the sacrifice is worth it, if the cause is worthy, then going out in a blaze of glory can be a great achievement. But being carted off for an MRI after the way he was treated is not a worthy sacrifice, and the NCAA is not a worthy cause - even if his teammates might be.

The story of Todd Gurley will inevitably be a lesson to all NCAA parents. The NCAA is not your friend. They will not help you teach your child about right and wrong. They will exploit your kid and, if ever given the opportunity, will eagerly discipline him for taking their money. If he's injured, so be it. He is only there for their profit and our entertainment. We've known for decades that his "education" is really not their concern.

Election Post Mortem - "It's the Economy, Stupid."

If you could pick one phrase from the Clinton presidency that has remained a staple in our political culture, it would be the wry phrase: "It's the economy, Stupid." Of course, Clinton did not invent the idea of focusing on the economy to win elections. Almost every successful president in our history did the same thing. This is because when the economy is good, most of the time a president gets reelected and his party does well. When the economy is bad, most of the time he loses and his party loses. There have been a few exceptions and caveats. For one, the electorate doesn't expect miracles. In fact, if they believe the other party is primarily responsible for the economic woes of the country, they give great leeway to the other side to fix things.

There is no doubt however, as I said in my last post, that this election was a referendum on President Obama and his party and their body of work since 2008. In 2008, we were in a recession. While we are not technically in a recession now, economic growth has been anemic at best. Since 2008, our economy has grown, on average, at 1.5% with significant real (as opposed to monetary) inflation of common every day goods like milk and oil. Now, compare that to the Clinton years where we experienced 3.8% growth with 2.5% inflation across the board; and the Reagan years, 3.8% growth and roughly 4% inflation. Even if you blame Bush and excuse the first two years of the Obama Administration, you still only get GDP growth of 2.2%. Under Reagan, taking out the first two years of the "stagflation" he inherited from Carter, you get approximately 5.8% growth.

President Obama and the Democrats have underperformed and, no matter how convincingly they may lay the blame at the feet of Bush, the voters no longer believe them. It is their economy, their policies, their agenda and their governance that has led to an unsatisfying economic recovery. Exit polls show that 78% of Americans are "worried" or "very worried" about the future of the economy. Compare that to 2008, during the height of the financial crisis. When President Obama took office, 81% of Americans were worried or very worried about the future of the economy. That is only about 3% higher than it is now - six years later. Ironically, in both elections about 65% of the voters believed that the economy was the top issue. That is notwithstanding the fact that President Obama and the Democrats declared victory over the recession four years ago. Obviously, Americans disagree.

The primary problem is not that President Obama inherited "the worst recession since the Great Depression." The primary problem is that he and his party were decidedly not focused on the economy, opting instead to pass the Affordable Care Act, a slew of new regulations, and precious little else. Then there was the campaigning. President Obama has relentlessly pursued the opposition throughout his six years in office, making every effort to show the world how stupid they are and how inferior they are to him. Predictably, they never wanted to work with him.

The most recent example of this was the White House luncheon during which the President met with Republican leaders. They retired to a private room to discuss ways they might work together. According to one Democratic aide in attendance, while the Speaker of the House was discussing a topic that is supposedly at the top of President Obama's agenda, immigration, the President said "I'm running out of patience." Really? "Running out of patience" is something I typically reserve for my children, not the Speaker of the House, and it is exactly that kind of clumsy interpersonal exchange that ensures everyone (except his closest allies) will just stand around and wait for him to further implode. He will achieve nothing.

In the final analysis, real policies and real governance can effect positive change. Clinton governed effectively. Reagan governed effectively. Policies were devised, implemented, tweaked and sometimes discarded. Reagan had to work with a Democratic Congress to pass his legislation. Clinton had to work with a Republican Congress to pass his legislation. In fact, the real irony is that Clinton worked effectively with many of the same Republicans that Obama now cannot bring himself to even eat lunch with. It is unlikely that these Republicans have changed that much. It is much more likely that Clinton knew how to be effective and Obama does not.

The last six years have been a grand experiment in modern government. President Obama and his advisors theorized that, really, Presidents can't do very much. They can make speeches and they can propose legislation, but the real work has to be done by the Congress. In accordance with that belief, they theorized that the best possible strategy to effect "change" is to campaign for broad ideas 24/7. It feeds into the 24/7 news cycle and it doesn't obligate him to govern anything more than his staff. "Keep it simple, Stupid." What we've learned from this experiment is that we do not like our leaders to be perpetual campaigners. We want them to govern. We may not always agree with the approach, we may stand in opposition to certain policies, but in the end, we want our government and our President to effectively address and attempt to resolve the nation's problems. In 1948, Harry Truman famously campaigned against the first "do nothing Congress." The Republicans just effectively beat the first "do nothing President." Let it be a lesson to both parties in all branches of government. You must govern, and you must govern effectively.

5 Steps Republicans Should Immediately Take to Improve the Economy

Almost uniformly, voters reported on Tuesday that the economy was a significant concern. Since 2008, we've seen precious little improvement outside of Wall Street. Yes, the markets are doing well, but ordinary Americans, and even the middle upper class and professional classes are not. This is an elite economy that has certainly expanded wealth for the upper .001 percent, but it has left the industrious middle behind. There is almost no comparison between the economy now and in 2007. Everything now is far more expensive that it was before the recession. That is bad news for ordinary folks who need milk for their toddlers, gas for their commute and meat on the dinner table. There are a myriad of reasons that our economy is still failing. The fundamentals are not strong and have not been strong for more than a decade. We have ceded our manufacturing base to Mexico and China along with the high paying jobs that used to be the backbone of our society. We have over regulated the existing employers and, of course, we have an incredibly confusing and oppressive tax system. I am expecting the GOP to put forward a positive agenda over the next two years that will provide real relief from the malaise we feel now. Here are, in my humble opinion, the five places to start.

1.  The Regulatory Reform Act

I would start with regulatory reform. Regulatory agencies have broad powers to implement legislation passed through Congress. So, for example, Congress passes a law that says, generally, "protect the environment." They then write into that law the names of the agencies tasked with "protecting the environment," and then provide "enabling powers" to those agencies to act on their behalf and  give effect to the new, broadly stated law. Those agencies, such as the EPA, then engage in "rule making." "Rule making" is a deliberative process designed to create and implement "regulations" that then have the force of law. When rule making is challenged, the federal courts review the process to determine whether the federal agency overstepped its bounds. However, federal courts give great deference to agency determinations, which include fact findings, statutory interpretation, and divining Congress' intent where there is ambiguity.

Over the last 6 years, President Obama has become a master of using regulatory agencies to change the law in a way that Congress never intended nor approved. It really is inappropriate, but to be fair, Obama is not the first President to do it. Nevertheless, it has revealed to most Americans a dark and shady process that usurps power from the electorate and places it in the hands of bureaucrats. I think most Americans oppose this and would like to see federal regulatory power reigned in.

To that end, the Republicans should propose legislation that limits the rule making power of federal agencies. "Deference" should be replaced in the law with a more stringent standard of review, such as "reasonably necessary to effect the stated purpose of the act," or "without which the legislation would be unable to be implemented." The current standards give too much power to the agencies to make law.

In addition to that, Congress should revise the interpretive powers of federal agencies to preclude them from exercising any power that is not specifically provided for in the legislation. The norm for federal agencies now is to do whatever they want and wait for a court to hold that they exceeded their mandate. Congress has the power, however, to limit federal agencies to only those actions which are specifically enumerated in the legislation. Congress should also have immediate standing to challenge all interpretations of its laws so long as a substantial minority believe the agency is acting contrary to Congress' intent. In other words, greater Congressional oversight of the regulatory process is needed.

Finally, Congress should amend the mission of each agency. As President Obama himself pointed out as a candidate, we have 23 agencies regulating salmon. It is time for Congress to step in and retask each agency in such a manner as to  drive it towards a more limited principal purpose.

2.  Tax Reform

It is without question that our tax code is nearly impossible to understand. Anecdotally, we hear of the Secretary of the Treasury being unable to accurately file a return. IRS agents are filing inaccurate returns and owe back taxes. Small businesses devote thousands of precious dollars a year to accountants and lawyers to decipher and limit tax exposure. It has been time to amend the tax code for decades.

We should start with the premise that production and productivity are good. A tax code that burdens production and productivity is counterproductive. Likewise, most of us believe that savings are important. Savings allow us to weather storms without needing assistance. Savings allow us to send our kids to college. Savings allow us to fix the transmission in our car when it suddenly dies. A consumption tax encourages savings. The most reasonable tax reform I've seen that encourages productivity and savings is the value added tax. Basically, it is a national sales tax. You buy something, you pay a sales tax on it that goes to the federal government. The government uses that to fund our nation. There are many sources online that do a good job of explaining how such a tax would work and what the drawbacks may be. I encourage you to research the issue for yourselves.

Even if you can't get on board with a consumption tax supplanting the income tax, it is universally recognized that the tax code must be simplified. That at least means that, to the extent we tax income, we need to limit deductions and tax rates. There is so little benefit to trying to use the tax code to micromanage citizen's behavior that it basically has become worthless. It is also patronizing and arrogant to have a government spending its time using the tax code to tell us how we should or should not behave. It really isn't up to them. It is up to us, and we should take away their power to use our own blood, sweat and tears to micromanage us.

3.  Labor Reform

As most of you know, I am a labor and employment lawyer. I have had the unique opportunity to see the function of our labor laws up close. While I generally oppose unions, I have also seen the unintended consequences of the massive loss of manufacturing jobs in this country. Manufacturing jobs are really, really good jobs. They tend to be stable, high-paying, require little formal education, and provide employees with a sense of ownership and belonging in the greater economy. For thirty years, Republicans and Democrats fought over the scope and protections that should be afforded to workers. Conservatives and businesses became tired of having government and employees tell them how to run their businesses. At the same time, many liberals became "citizens of the world" rather than advocates for American jobs. The result was catastrophic. Liberals and conservatives joined together to gut our manufacturing economy. Liberals were glad to see jobs go to "developing nations" and conservatives finally got their wish - to destroy the labor unions. Never has a country slit its own throat so quickly nor so willingly.

A country that doesn't produce anything is not a powerful country. We are now a service based economy. We serve dinner at the local Applebee's, we service accounts, we service sales, we service foreign manufacturing companies that do their manufacturing overseas. China makes stuff, and we buy it. That is a formula for decline and it must be reversed.

Republicans should propose common sense labor reforms that make it easier and more profitable for companies to manufacture in America without interference from unions and government. Ultimately, the owner of the company gets to run the company, not the employees. That said, there are ways to protect employees while protecting the rights of the owners to run their businesses as they see fit. I know this is a board statement, and it would take too long to detail the ways to accomplish this, but it must be done in order to revitalize our economy. And besides, I'd rather have to deal with a unionized job in America than a job in China.

4.  Double Down on Privacy and Free Speech

Most American's believe that government is out of control because it is, in fact, out of control. Government at all levels has been using its police power to discourage ordinary Americans from exercising fundamental rights. Over the past five years, for example, the federal government has used the IRS, ATF, FBI, OSHA and EPA to harass political groups that apply for tax exempt status to push their ideological agendas. If you want to speak up, you get audited. If you want to raise money for a particular political cause, your business gets a surprise visit from OSHA. If you disagree with the current power structure and want to form an organization to challenge that, you get a visit from the ATF to make sure you have all the necessary paperwork for your firearms. At the very least, an issue advocate must comply with an encyclopedia full of rules and regulations or else risk arrest and jail time.

Meanwhile, the NSA gathers all electronic communications and voice calls in the world. This is being done under the auspices of national security. I doubt that, but okay. Even if that is the case, it is not the "good guys"we currently have in charge at the NSA I am worried about (assuming they are all good guys). I am worried about the bad guys getting hold of this information and using it for nefarious purposes, such as industrial espionage, blackmail, gaining political leverage, and deterring undesired speech. 

Issue advocacy is core free speech. The general thuggery and ludicrous introduction of ambiguous regulations is specifically intended to chill political speech. Someone doesn't want you to voice your opinion, so they use the vast power of the government to scare you into submission. This trend is one of the most un-American developments in the history of our country. It is absolutely incumbent on our political leaders to put an end to this. There are several reforms I would suggest. First, political speech should be exempt from all regulation. That means no more campaign finance laws, no more Federal Election Commission regulating Youtube videos, and no more IRS agents determining tax exempt status for some political group. Second, there need to be serious and painful sanctions for officials who attempt to interfere with someone's constitutional right to free speech. Government officials, bureaucrats and agency heads should be stripped of immunity from private lawsuits brought as a result of their abuse of power. Many government officials believe that they can do whatever they want because, ultimately, they are immune from any consequences for any lapse in judgment. It is time to hold these people to account, and an individual or group who feels they have been retaliated against because of their political views should be allowed to sue everyone involved.

5.  Energy Reform

It has always been the case historically that where there are high gas prices and high taxes, the economy struggles. The opposite is also true. Where energy is cheap and taxes are low, the economy has boomed. Energy is the force multiplier for the average American. Without energy, we cannot get to work, cook our food, or do those projects around the house. Cheap energy is not a bad thing, although the elites would like us to think that it is. Cheap energy is so fundamental to our society, in fact, that finding and developing it represents a full 10th of our economy. For years we've had the EPA and various other government agencies interfering with progress. While there are serious concerns about the environmental impact energy production has, those concerns should not paralyze us. The Keystone Pipeline, for example, should be approved. Congress should act to take that decision out of the hands of the EPA and the Department of State and then approve it themselves.

Moreover, however, Congress should act to remove regulations that are hampering growth in this sector. As we get better at fracking, we will be able to flood the market with new oil, which will ultimately drive down the price. Cheap oil is good. It takes power away from despots and terrorists in the Middle East and Russia. It allows the average family to spend more money on clothes or school books, instead of putting that additional $100 in the gas tank every week. Cheap gas, cheap heat, cheap power all work to make the lives of all Americans better.

A Republic, If You Can Keep It

At the close of the Constitutional Convention  in 1787, Benjamin Franklin was asked by a woman standing outside the hall: "Well, Doctor, do we have a monarchy or a republic"? Franklin replied: "A republic, if you can keep it." Franklin's words were sharp and foreshadowed the centuries of struggles that our nation would face to keep real self-governance viable. 

Every election cycle since that first one has tested our nation's resolve to be free and our commitment to the peaceful change of power. Every election is about something. Yesterday's election, most people agree, was a referendum on President Obama's policies, agenda and ideology. Voters did not vote so much for any positive view espoused by Republicans as they did vote against Obama and the Democrats. There is no doubt that, given the relative lack of vision offered by Republicans, Obama and the Democrats were completely repudiated by the voters.

Now what? Voters overwhelmingly supported Republicans over Democrats and it wasn't even close. The GOP now has a choice. It can either articulate and pursue a real, common sense set of reforms designed to improve the lives of ordinary Americans, or it can consolidate power with lobbyists, favors and money. And then, while feathering their nests, the Republicans can pass meaningless, symbolic bills for their constituents' consumption. The history of grand reform from the GOP has been mixed, to say the least. In an election in which there was no national platform or set of reforms articulated, I have my doubts about what the GOP will actually do. If the Republicans do not pursue real reform, then what little confidence the electorate still has in the GOP will further erode, and they will be out of power again in no time. The country has handed the GOP our republic, we will see if they can keep it.

Tomorrow: Five steps Republicans should take immediately to improve the economy.