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There is a possible convergence.

There is a possible convergence.
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Stephen E. Herbits is an American businessman, former consultant to several Secretaries and Deputy Secretaries of Defense, executive vice president and corporate officer of the Seagram Company, advisor to the President's Advisory Commission on Holocaust Assets, and secretary general of the World Jewish Congress. He was the youngest person to be appointed commissioner on the Gates Commission. Herbits' career has specialized in "fixing" institutions – governmental, business, and not-for-profit – with strategic planning and management consulting.

Republicans see government regulation as intrinsically bad; Democrats argue that regulations are protections and a necessary element of a democratic society. Yet, there is an opportunity for a convergence of views.


Some have described the difference as between a lack of intelligence and bad judgment by noting that intelligence is the intellectual gathering and perhaps understanding of information, sometimes for application, while bad judgment is an unjustified or emotionally driven attitude or action.

The Supreme Court decision in the case of Sackett v. EPA decided the case based on both. Will it be smart or partisan?

Over nearly two and a half centuries, Federal regulation has emerged organically when the public determined a need. The first Federal regulation followed the Civil War when the public demanded government intervention to assure proper treatment, including “repatriation,” of the fallen. Each subsequent regulation addressed the needs at that time: the Sherman Antitrust Act in 1890 followed by multiple health and safety protections.

The intentional first Article of the U.S. Constitution, the Congress created a process or regulation, which is deliberately designed to be a process of mediation between conflicting interests. Corporations, a government created mechanism for conducting business, are designed to make profits by providing goods and services, regardless of their impact on the public. That system was and remains needed. However, this design to maximize shareholder and executive profit creates its own centrifugal force – greed.

To attempt a balance between corporate profits and the public’s needs and interests, the Congress repeatedly developed a carefully constructed process to mediate between those interests.

That process consists of rulemaking with public input, investigation and adjudication, and enforcement. In each, the regulatory format was created because the traditional three branches of government could not do the job. The Executive Branch was subject to too much partisan control. The Judicial Branch works so slowly as to make final decisions long after the health and safety protections have done too much damage. With large portions of its personnel changing, Congress could not learn the matters sufficiently, nor adjudicate nor enforce.

As a result, the Congress created a “Fourth Branch” in order to effectively address technical requirements in the “modern” area for health and safety, the inability to investigate and adjudicate failures to follow rules, and the ability to enforce them in a timely manner.

Imagine, for instance, a pharmaceutical company creating an ingestible drug to do whatever, making whatever claim, and selling it to the public without a check and balance on its safety and efficacy.

Imagine our rivers and lakes today without the Environmental Protection Agency – a need publicized by Rachel Carson in her 1962 book Silent Spring (one of her four books), recommended by a Republican president and enacted by a bi-partisan Congress. Now, in a significant shift, six members of the Judiciary Branch will make decisions for the agencies.

Not long ago, the FAA’s delegation of quality control to Boeing’s 737 Max resulted in hundreds of deaths, severe interference in the economy, and further loss of the public’s trust in government. This was a direct result of the failure of a regulatory agency to perform its duties responsibly -- a salient example that illustrates how essential regulatory agencies are in protecting the public.

There is, of course, the right of appeal to the judiciary for the failure to follow procedures set by Congress, but that is a far cry from usurping Congress and the regulatory agency’s ability to regulate at all.

It is no excuse that after years of institutional performance, some regulatory agencies need to refresh their system of rulemaking, investigation, adjudication, and enforcement. A specific, OMB authorized process -- similar to what corporations or auditors pay consultants to perform -- should begin that process immediately.

The need for an effective regulatory process is no excuse for today’s hyper-partisan Supreme Court to undermine the Fourth Branch with its own partisan decisions as to what is and what is not a “major” decision by Congress and undermine their carefully created mediation process to resolve conflict. Every rule now becomes unreliable. Short-term hyper-partisanship supported by lobbying and campaign contributions could become the new rule-making process.

The Third Branch of government, the Supreme Court, should not replace Congress’s role in creating, reviewing, and amending where necessary, the “Fourth Branch.”

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Washington, D.C. is at the center of American democracy. Yet today, its residents — taxpayers, veterans, workers, families, people like you an I, American citizens — are being stripped of their right to self-government. The recent surge of out-of-state National Guard troops into the District under federal order has highlighted a deep flaw in our system: D.C. does not have the same authority to govern itself that the 50 states enjoy.Keith

We are told this militarization is about “public safety,” but violent crime in D.C. is near a 30-year low . What we are witnessing is not a crime-fighting measure, but an unprecedented encroachment on local authority. The consent of the people — the foundation of democracy — is being sidelined to pursue a political or even personal agenda.

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Legally, a president can request National Guard support through interstate compacts. But legality is not the same as legitimacy. True democracy requires consent, not unilateral fiat. Under the Home Rule Act, federal control over D.C. is only supposed to last 30 days in emergencies. Yet the use of state-based National Guard units circumvents this safeguard and seems to demonstrate a hidden agenda. This is a loophole — one that undermines D.C.’s right to self-governance and sets a dangerous precedent for federal overreach.

An Urgent Legislative Answer

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Read the D.C. Defense of Self-Government Act here

This legislation would require explicit, expedited approval from Congress before federal or state National Guard troops can be deployed into the District. It ensures no president — Republican. Democrat or Independent — can bypass the will of the people of Washington, D.C.

This moment also reminds us of a deeper injustice that has lingered for generations: the people of Washington, D.C., remain without full representation in Congress. Over 700,000 Americans—more than the populations of several states—are denied a voting voice in the very body that holds sway over their lives. This lack of representation makes it easier for their self-government to be undermined, as we see today. That must change. We will need to revisit serious legislation to finally fix this injustice and secure for D.C. residents the same democratic rights every other American enjoys.

The Bigger Picture

This fight is not about partisan politics. It is about whether America will live up to its founding ideals of self-rule and accountability. Every voter, regardless of party, should ask: if the capital of our democracy can be militarized without the consent of the people, what stops it from happening in other cities across America?

A Call to Action

When I ran for president, my wife told me I was going to make history. I told her making history didn’t matter to me — what mattered to me then and what matters to me now is making a difference. I'm not in office yet so I have no legal authority to act. But, I am still a citizen of the United States, a veteran of the United States Air Force, someone who has taken the oath of office, many times since 1973. That oath has no expiration date. Today, that difference is about ensuring the residents of D.C. — and every American city — are protected from unchecked federal overreach.

I urge every reader to share this bill with your representatives. Demand that Congress act now. We can’t wait until the mid-terms. Demand that they defend democracy where it matters most — in the heart of our capital — because FBI and DEA agents patrolling the streets of our nation's capital does not demonstrate democracy. Quite the contrary, it clearly demonstrates autocracy.

Davenport is a candidate for U.S. Congress, NC-06.
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