Constitution Day 2015: A Conversation With The Constitution

Last week, I had the opportunity to address an assembly of East Central High School students who were participating in a Constitution Day event called “A Conversation with the Constitution.” We used the Constitution Cafe format to engage students on the constitutional issues surrounding the Patient Protection and Affordable Care Act. I have had the pleasure of serving on the Board of Directors of Democracy Cafe for the past several months and am excited about continuing and expanding our efforts to engage students on current events and the Constitution. Below are the remarks I prepared for the event:

The American Constitution sets the rules and establishes the field upon which all of our political battles are waged. 12004912_639918656151174_6325504966234393744_nSince the Founding Era, one of those battles- and perhaps the most fundamental philosophical debate- has been about the proper scope of the federal government’s authority to regulate a wide variety of activities in the United States.

We tend to think and talk about this debate as one about civil liberties and equality- from slavery to Emancipation, from Jim Crow to Civil Rights. But since the turn of the 20th century- as the United States rose to become a great industrial leader- the proper role of the federal government has been central to Supreme Court cases and controversies about economics.

Article I of the Constitution gives Congress the power to regulate commerce between the states. When I hear that, I think of a train hauling materials across the Red River from Texas into Oklahoma. For 150 years, the Supreme Court viewed it just that way. The Court would uphold laws addressing a train crossing state lines with materials, but strike down many laws on what it considered local economic matters. For example, if I grow cotton on my farm and sell it at the market a few miles down the road, the Court said that doesn’t touch interstate commerce. Which seems sensible.

But then a Great Depression swept across the nation, and people were desperate for the newly elected President Franklin Roosevelt to provide them with relief. So he pushed for a bold legislative package known as the New Deal, which gave the federal government the power to use emergency measures to provide more economic opportunity to the American people.

The chief problem with the New Deal became that the Supreme Court kept striking down the laws! Saying that the federal government was overreaching its granted power. People were outraged, and after President Roosevelt’s reelection in 1936, the Supreme Court finally relented. The court began granting Congress and the federal government more and more power to regulate the national economy, and this trend continued and accelerated through the 1930s, 40s, 50s and 60s.

Before the New Deal, the Supreme Court said the cotton I grow on my farm doesn’t touch interstate commerce. After the New Deal, the Court reasoned that the cotton I grow on my farm impacts the national price of cotton and does touch interstate commerce. This same line of reasoning applied to every industry.

Health care is no exception. For the last fifty years, medical breakthroughs and technological innovation have improved quality of care and extended our life expectancies. As with most technological breakthroughs, not all of the fruits have been enjoyed equally.

A great lot of people have been bothered that the richest country in the world didn’t provide adequate health care for all of its citizens. Presidents- all Democrats and, yes, even a Republican- have tried to provide a universal system of health care for all Americans for the better part of a century. And until recently, every president failed.

But five years ago, President Obama signed the Patient Protection and Affordable Care Act into law. The Affordable Care Act- also known as Obamacare- financially penalized any citizen who refused to purchase health insurance and could afford to. This law was very controversial for several reasons, but the most important constitutional debate became about whether the commerce clause gave the federal government the power to penalize an individual for his or her refusal to purchase a product.

On one side, people argued that the commerce clause gives the federal government the authority to regulate what people do, but not what the do not do. They argue that “Congress has the power to regulate commerce, not compel it,” and that allowing such a penalty paves the way for a slippery slope and that one day the federal government could require us all to eat broccoli for dinner. I know that I am not the only one in this room who would find this a bit unappetizing.

The folks on the other side have a point too. They say the federal government should have the power to compel each of us to purchase health insurance because of the total impact that the uninsured have on the national health care system. Every one of us who drives a car is required to have auto insurance, so why shouldn’t health insurance be treated the same? They say that providing adequate health care is such a pressing public policy priority that the penalty is definitely connected to interstate commerce.

While the Supreme Court has made a series of decisions upholding the Patient Protection and Affordable Care Act, the debate over the extent of the powers granted to the federal government by the commerce clause is far from over.

It is actually a debate that is never supposed to be fully settled. At the Constitutional Convention almost 230 years ago, they knew that we would be sitting in rooms like this with groups like this discussing how the issues of our time fit into the framework they adopted. So let’s get to it! Happy Constitution Day!

Transportation Options Save Lives

The debate in San Antonio about the integration of transportation networking companies like Uber and Lyft into our market has been presented as a false dichotomy between ensuring public safety and embracing innovation.

A new study recently published by researchers at the Temple University Fox School of Business found a drop in drunk driving deaths in California after Uber entered the market. From the abstract:

Photo credit: KENS

Using a difference-in-difference approach to exploit a natural experiment, the entry of two Uber services into markets in California between 2009 and 2014, we find a significant drop in the rate of homicides after the introduction of Uber…These results underscore the coupling of increased availability with cost savings which are necessary to exploit the public welfare gains offered by the sharing economy.

San Antonio’s CBS affiliate KENS-5 ran a story on the study and quoted Councilman Nirenberg:

That’s the public safety issue in my mind is the lack of transportation options in San Antonio, people having to get behind the wheel of their car to get home,

Councilman Nirenberg Calls for Year-Round Stage 1 Water Use

Councilman Nirenberg called for year-round Stage 1 water use yesterday. From the press release:

On Tuesday, Councilman Nirenberg filed a memo calling for the establishment of Stage 1 water use year-round under normal conditions. Stage 1 water rules limit the use of irrigation or sprinkler systems to once per week and currently trigger when the 10-day rolling average of the Edwards Aquifer level drops to 660 feet mean sea level at the J-17 Bexar index well. 

“The cheapest, most available water is the water we do not use,” said District 8 Councilman Ron Nirenberg. sprinkler-head-blackburnsprinklers“As SAWS pursues an ‘all-of-the-above’ approach to long-term water security that includes aquifer storage and recovery and regional water sourcing, a continued commitment to conservation must continue to play a central role.”

 The San Antonio City Council will consider a new rate design for San Antonio Water System (SAWS) customers this fall. The proposed rate design developed by SAWS staff, an appointed 17- member Rate Advisory Committee, and consulting firm Black and Veatch, acknowledges that conservation will be the linchpin of San Antonio’s long-term water security. The proposed rate design doubles the number of residential rate tiers to encourage less discretionary use.

“Maintaining once per week outdoor watering is a proven best water management practice,” said State Representative Lyle Larson, a longtime leader on state and local water issues. “SAWS is looked upon as a leader in water conservation throughout the nation. Implementing a year-round once weekly outdoor watering policy would be a perfect next step in the utility’s conservation strategy.”

Councilman Nirenberg’s memo was co-signed by Council members Gallagher, Lopez, Warrick, and Trevino.

Municipal Broadband

One of Councilman Nirenberg’s pressing agenda items is a comprehensive digital strategy for the City of San Antonio and, particularly, the expansion of the City’s municipal fiber network. Here is an article that recently appeared in The Rivard Report outlining his views. Below is testimony he delivered to the Bexar County Commissioners Court on Tuesday:

Thank you for the opportunity to testify before you today on an issue that has the opportunity to transform our community.

The digital revolution—driven largely by broadband and mobile data deployment—touches every aspect of our lives. As the international economy evolves, so too must our commitment to evolve with it.

Last month, Judge Wolff laid out an aggressive agenda for expanding our burgeoning technology sector, with a commitment to public investment and to helping the private sector create a digital ecosystem.

Last June, I initiated a comprehensive digital strategy for the City of San Antonio in that same spirit. This digital strategy will include specific recommendations on:

  • Accelerating private investment in digital infrastructure;
  • Bridging the digital divide;
  • Expanding mobile data capacity; and, most importantly,
  • Utilizing our municipal fiber network.

Communities nationwide are using publicly owned fiber networks to meet their specific needs. We have unique assets that give our community a unique opportunity. Two decades ago, CPS Energy invested in strands of fiber lining our community. Many of these strands have lain dormant ever since. While state law prohibits the residential sale of broadband service by municipalities, we can provide such service to public institutions.

Imagine connections between our pillar institutions: Bexar County, the City of San Antonio, UHS, UTSA, UTHSCSA, the Alamo Colleges, and our school districts. Such connections have the potential to expand our education and workforce development efforts, improve health care, and attract the bioscience, advanced manufacturing, and cybersecurity companies central to our economic development strategy.

This is within our grasp. Minor capital investments will allow us to upgrade the municipal network so that it can provide the support that institutions would expect of commercial grade broadband carriers. We have made substantial progress in obtaining those investments.

Last week, the City Council approved an agreement that I believe will create a revenue stream that we can dedicate to making technology make government more effective and efficient, including municipal broadband. On Thursday, I will be asking City Council to support additional investment as a line item in the City of San Antonio FY2016 budget.

I share this Court’s commitment to a digitally vibrant community and look forward to forging a long-term partnership so that this dream can become a reality.

I thank you for your consideration of this resolution and urge its passage. Thank you.

We Need a New Generation of James Bakers

Former Secretary of State James Baker, Leo McGarry in the flesh, spoke at my 2008 Texas Tech commencement ceremony. In a recent Texas Monthly interview, he spoke about why Washington no longer works. He mentions redistricting, before pointing to the media-generated echo chamber of manufactured outrage:

[W]hen I was trying to get things done for the American people, the press were at least trying to report on events reasonably and objectively. They were observers, not players. Today the press are players. If you tune in to MSNBC, you’d think you were listening to the house organ of the Democratic party. If you tune in to Fox, you know you’re listening to the house organ of the Republican party. That makes for good ratings, but it doesn’t make for good governance.

This morning, Secretary Baker penned a Wall Street Journal op-ed that addressed four glaring weaknesses in the Iran nuclearjamesbakertime102210 deal:

  1. Disputes over the timeline for phasing out sanctions
  2. “Verification mechanisms”
  3. “Snapback provisions” which would grant the authority to reapply sanctions
  4. “Iran’s refusal so far to provide historical information about its nuclear-enrichment program so that there is a baseline against which to measure any future enrichment.”

This is the most thoughtful critique of the deal that I have encountered, motivated by progress rather than partisanship:

I commend the president and his national-security team for trying to solve this difficult problem short of military action. A nuclear-armed Iran threatens the security of the Middle East and the world. A nuclear-arms race in that volatile part of the globe would be disastrous. Military action against Iran’s nuclear facilities should remain our last resort, as it would strengthen the hard-liners in Tehran and could have other unfortunate and serious consequences.