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“Selective Memory Loss”: Romney Defended Bush’s Invocation Of Executive Privilege

When the Obama administration announced last week that it would invoke executive privilege and not release some documents related to the “Fast and Furious” operation, Mitt Romney’s campaign was quick to call the president a hypocrite. But in 2007, Romney endorsed a similar move by a Republican administration.

Romney spokeswoman Andrea Saul attacked the Obama administration’s executive privilege claim last Wednesday in a statement, saying “President Obama’s pledge to run the most open and transparent administration in history has turned out to be just another broken promise.”

But as Congress sought to compel President George W. Bush’s administration to allow Karl Rove and Harriet Miers to cooperate with an investigation into the U.S. Attorney’s scandal, Romney could not have been more forceful in his support for the executive privilege claim. Asked by a conservative radio show how whether he agreed with President Bush’s decision to simply ignore the subpoenas, Romney said:

Yeah, he’s got a responsibility to protect executive privilege. That’s just part of preserving the powers of the presidency… He should do what he thinks is the right thing with regards to members of his team but preserve executive privilege.

The Bush administration asserteddeliberative process privilege” in that case — the same privilege being cited here for the Department of Justice “Fast and Furious” documents.


By: Josh Israel, Think Progress, June 26, 2012

June 27, 2012 Posted by | Election 2012 | , , , , , , , , | 1 Comment

“Not So Fast Missy”: How Jan Brewer and Many Others Got The Supreme Court’s Immigration Ruling Wrong

Arizona Governor Jan Brewer sounded triumphant Monday as she declared that the “heart” of SB 1070, Arizona’s harsh anti-illegal immigration law, had been “upheld” by the Supreme Court.

“The heart of Senate Bill 1070 has been proven to be constitutional. Arizona’s and every other state’s inherent authority to protect and defend its people has been upheld.”

There’s just one problem: The high court did not find any provision of Arizona’s law to be constitutional—it did not “uphold” any part of the law. The distinction here is a technical legal one, and plenty of reporters and media outlets got it wrong. (My first tweet about the ruling was wrong. Politico, the Los Angeles Times*, and PBS’ Newshour also initially misreported the ruling.) Other supporters of the law, including Maricopa County, Arizona Sheriff Joe Arpaio and Kansas Secretary of State Kris Kobach (who is a lawyer) also referred to part of the law being “upheld.”

Here’s what the Supreme Court actually did on Monday. The justices decided that the lower court that prevented SB 1070 from taking effect was mostly correct—because most of the law’s provisions were likely unconstitutional. The Supreme Court declined to block the “papers, please” provision of the law—which Brewer refers to as its “heart”—that requires local authorities to check the immigration status of anyone they arrest. But the high court did not find the controversial provision constitutional, and so it was not “upheld.” Instead, the high court deferred judgment on the matter. Saying that part of the law was “upheld” incorrectly implies that the court decided the “papers, please” provision was constitutional. The justices were actually decidedly agnostic on that point.

“The majority said it didn’t know enough about how the law would work in practice to rule decisively. Because the law has never gone into effect, it just wasn’t clear whether the law would conflict with federal policy.” says Adam Winkler, a professor at the University of California Los Angeles School of Law who wrote a column for the Daily Beast noting that many media outlets got the distinction wrong. “The court said to Arizona there’s a right way and a wrong way to apply this law and we’re watching you.”

Although it’s anyone’s guess how the court might ultimately rule on the “papers, please” provision, Justice Anthony Kennedy’s opinion gives very specific guidance on how that part of the law should be enforced. That suggests that in the future, the court could very well find the provision unconstitutional—meaning that Brewer’s celebration was beyond premature.

“They absolutely left open the possiblity of future challenges,” says Elizabeth Wydra, chief counsel at the liberal Constitutional Accountability Center. “We achieved victory on three out of the four provisions [Monday], and I think it’s going to be a delayed victory on the fourth.”


By: Adam Serwer, Mother Jones, June 26, 2012

June 27, 2012 Posted by | U. S. Supreme Court | , , , , , , , | 1 Comment

“Reeking Of Politics”: Class War At The Supreme Court

On the eve of the Supreme Court’s much anticipated ruling on Obamacare, here is a simple test for detecting the politics behind a decision: When reading the rulings, look for the double standards and answers to questions not posed by the cases themselves. By those measures, the Supreme Court’s record in the past week fairly reeks of the justices’ politics.

Exhibit A is Justice Samuel Alito’s majority opinion in Knox v. Service Employees International Union, Local 1000, in which nonunion California state employees whose wages and benefits were nonetheless set through the collective bargaining process of SEIU — the state’s largest union — sued the local to get back a special dues assessment it levied in 2005 to fight two ballot measures. The union’s normal practice was to allow nonmembers to opt out of paying the roughly 44 percent of dues that went to matters not directly related to collective bargaining, such as election campaigns. In this instance, however, no such opt-out was allowed.

The issue before the court was whether mandating the collection of the special assessment from nonmembers violated their constitutional rights to free speech. Alito and the four other conservative justices ruled that it did, and liberal Justices Sonia Sotomayor and Ruth Bader Ginsburg agreed in a concurring opinion. But Alito’s opinion didn’t stop there. It also changed the long-standing practice of allowing nonmembers to opt out of paying dues toward union functions outside collective bargaining, mandating instead that the unions “may not exact any funds from nonmembers without their affirmative consent.” In other words, unions would have to ask for nonmembers’ permission to collect political assessments and, possibly, any dues at all. “Individuals should not be compelled to subsidize private groups or private speech,” Alito wrote.

Alito’s ruling struck at the heart of American unionism. By laying the groundwork for creating a right for nonmembers to avoid dues payments, he came close to nationalizing the right-to-work laws that 23 states have adopted (though 27 have not). As Sotomayor noted in a somewhat astonished dissent (Ginsburg and Justices Stephen Breyer and Elena Kagan dissented on this point as well), this wasn’t the question before the court. Neither side had argued that issue in their briefs or oral presentations. “The majority announces its novel rule,” Sotomayor wrote, “without any analysis of potential countervailing arguments.” And it did so in defiance of the court’s own Rule 14, which states that “only the questions set out in the petition or fairly included therein will be considered by the Court.”

Taken in context with the conservative majority’s other recent rulings, Alito’s opinion also revealed the most class-based double standard the court has exhibited since before the New Deal. In the 2010 case Citizens United v. Federal Election Commission — rendered by the same five justices who signed onto Alito’s ruling in Knox — the court ruled that corporations could directly spend their resources on political campaigns. These two decisions mean that a person who goes to work for the unionized Acme Widget Company can refuse to pay for the union’s intervention in political campaigns but has no recourse to reclaim the value of his labor that Acme reaps and opts to spend on political campaigns. Citizens United created a legal parity between companies and unions — both are free to dip into their treasuries for political activities — but Knox creates a legal disparity between them: a worker’s free-speech right entitles him to withhold funds from union campaign and lobbying activities, but not the value of his work from the company’s similar endeavors.

If you seek a precedent for this anomaly, might I suggest the following sentiment on unions written (not in a court ruling, mind you) by former president William Howard Taft in 1922, when he was chief justice: “That faction we have to hit every little while.” That’s the “legal” tradition to which Alito adhered: fear and loathing of workers’ organizations.

The club champion for double standards, however, is not Alito but Antonin Scalia. Dissenting from this week’s decision striking down major provisions in Arizona’s anti-immigrant law, he argued that Arizona has the sovereign rights of a nation in protecting its borders — a right he gleans through such a bizarre reading of the Constitution that not one of his fellow conservatives signed on to his dissent. Yet the same day, Scalia signed on to a Gang of Five decision declining to hear Montana’s case that its century-old law banning corporate contributions to political campaigns should take precedence over Citizens United. In the world according to Nino, Arizona has the rights of a nation-state, but Montana must submit to the Gang of Five. You’re sovereign when Scalia agrees with you; you’re nothing when he doesn’t.

Politics? Heaven forfend!


By: Harold Meyerson, Opinion Writer, The Washington Post, June 26, 2012

June 27, 2012 Posted by | U. S. Supreme Court | , , , , , , , , | 1 Comment

“Why Mitt Romney Ducks Issues”: There’s No Way To Square The Circle With Conservatives

So why doesn’t Mitt Romney advance any policy ideas, anyway? In particular, why doesn’t he advance some ideas — on the economy preferably, but any issue would do — to shield himself from the obvious attack that he’s a more-of-the-same return to the still-unpopular George W. Bush?

It’s no surprise that he doesn’t want a lot of focus on his own proposals; as with most challengers, his best bet is to win all of the votes of people unhappy with the incumbent, and so being as much a generic opponent as possible is a logical strategy. But that doesn’t quite explain his frequent — and sometimes comical — refusal to have any policy positions at all on numerous issues. In particular, Barack Obama has already begun to attack him as a return to Bush; one would think that a few (bland, unthreatening) policy proposals could convince many in the press to at least not amplify that message.

So why doesn’t Romney differentiate himself from Bush? It’s pretty simple, and it gets back to what drives much of the Romney program: fear of conservatives. Or to put it another way: party constraints. After all, while most voters may think of Bush as a typical conservative Republican, many Tea Partiers and other conservative activists see Bush as one step (if that) removed from the dreaded RINO label. And so for Romney, who still must worry about keeping activists happy, there’s no way to square the circle. If Bush was dangerously moderate, then deviating even a bit to the center would put Romney in dangerous territory for activists. But of course a move to the right to separate himself from Bush, and Romney would be courting a reputation for extremism that could be trouble for him with swing voters.

Granted, Romney might have found ways of moving on to new issues that were perceived as neither left nor right. But that’s apparently not his strength as a politician, and it’s not as if the other Republican candidates, Ron Paul excepted, were generating interesting and untried policies of their own. At any rate it would have been too risky during the nomination process, given how easily conservatives have turned on seemingly (and formerly) safe conservative positions. Better, in the primaries, to use attitude (all that stuff about bowing and apologizing, for example) as a substitute for issues for appealing to conservatives.

And for general election swing voters, Romney is following the same path: substituting attitude such as a vague support for jobs for issues — and taking the hits from the occasional reporter who cares about such things — and hoping that it’s enough. It has a down side; it’s getting him a reputation in the press for ducking issues, and it makes it easier to paint him as Mitt W. Romney — but given his constraints, it’s a rational strategy. Expect plenty more of it.


By: Jonathan Bernstein, The Washington Post, June 26, 2012

June 27, 2012 Posted by | Election 2012 | , , , , , , , | Leave a comment

“What If Congress Forced You To Buy A Gun?: George Washington’s Individual Mandates

Eric Spiegelman has an interesting post on how the legal establishment got the individual mandate so wrong. In it, he writes:

How far can the definition of Congress’ enumerated powers be stretched? As Justice Scalia asked during oral arguments: if Congress can force you to buy health insurance, can they also force you to buy broccoli? The question I like to ask is: what if Congress forced you to buy a gun?

But Congress has forced Americans to buy guns. It’s in the Militia Acts of 1792. The relevant section is a bit lengthy, so I’ve bolded the key parts:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Now, you could argue that this was not done under the Commerce Clause. But as Yale’s Akhil Reid Amar says, “the law shows that George Washington, who signed the law, thought that purchase-mandates were not intrinsically improper. If Congress can regulate a ‘well-regulated’ militia with a mandate, why can’t Congress regulate interstate commerce the same way?”

Incidentally, that’s not the only time an early congress mandated that Americans purchase privately sold products:

In 1790, the very first Congress—which incidentally included 20 framers—passed a law that included a mandate: namely, a requirement that ship owners buy medical insurance for their seamen. This law was then signed by another framer: President George Washington. That’s right, the father of our country had no difficulty imposing a health insurance mandate.[…]

Six years later, in 1798, Congress addressed the problem that the employer mandate to buy medical insurance for seamen covered drugs and physician services but not hospital stays. And you know what this Congress, with five framers serving in it, did? It enacted a federal law requiring the seamen to buy hospital insurance for themselves. That’s right, Congress enacted an individual mandate requiring the purchase of health insurance. And this act was signed by another founder, President John Adams.

That’s from Einer Elhauge, a professor at Harvard Law, who continues, “not only did most framers support these federal mandates to buy firearms and health insurance, but there is no evidence that any of the few framers who voted against these mandates ever objected on constitutional grounds. Presumably one would have done so if there was some unstated original understanding that such federal mandates were unconstitutional.”

Also of note: unlike the mandate to buy muskets, the maritime mandates were exercised under the Commerce Clause.


By: Ezra Klein, The Washington Post Wonkblog, June 26, 2012

June 27, 2012 Posted by | Affordable Care Act | , , , , , , , , | Leave a comment

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