“Fast And Loose”: A Contemptuous Vote In The House Of Representatives
The House is due to vote Thursday on whether to hold Attorney General Eric Holder in contempt of Congress — setting up a protracted, unnecessary and expensive court battle between coequal branches of government about the extent of executive privilege. To say this is a terrible misuse of Congress’s power is an understatement.
The dispute stems from a botched federal investigation into firearm trafficking along the U.S.-Mexico border. In an operation named after a blockbuster movie, “Fast and Furious,” federal law enforcement used the scandalous tactic of letting guns “walk” in hopes of tracking them to cartels. Unfortunately, federal officials failed to follow the guns across the border. We have learned that the Bush administration tried the same tactic in an operation called Wide Receiver — with similar results. Some guns from Fast and Furious were among those found where a U.S. Border Patrol agent, Brian Terry, tragically lost his life.
This certainly merits vigorous congressional oversight. But after 16 months, 7,600 documents and nine hearings with the attorney general, the investigation has become unmoored. It is no longer an examination of what went wrong in the Bureau of Alcohol, Tobacco, Firearms and Explosives under both administrations. Rather, it has devolved into the latest partisan attack on the Obama presidency.
Holder has bent over backward to comply with all the requests from Rep. Darrell Issa (R-Calif.), chairman of the Oversight and Government Reform Committee. The attorney general only refused when Issa asked for materials such as internal deliberative communications, which the Justice Department is prohibited by law and privilege from providing.
GOP leadership has now made the absurd claim that assertion of executive privilege establishes that the White House was involved in the planning and aftermath of Fast and Furious. This fantasy shows a complete disregard for the well-established facts of this case and the law as argued by administrations from both parties. The White House assertion is backed by decades of precedent that has recognized the need for the president and his senior advisers to receive candid advice and information from their top aides.
So why is the House moving forward with this vote to hold the attorney general in contempt? Because the GOP leadership won’t take yes for an answer. It wants — and needs — a fight.
This contempt vote is over documents produced after February 2011 — a month after Fast and Furious reached its ignominious end. The papers could not shed light on what DOJ officials were thinking years earlier. It’s clear that this has morphed into an election-year hunt for a senior administration official’s scalp.
This is the type of politics that makes the American people fed up. It’s a lamentable distraction from the work we should be doing to get at the real problem — the mutually destructive trade of guns and drugs that has made our southern border less safe, resulted in the deaths of Americans and killed tens of thousands of Mexicans.
Pressing forward with the ATF rules requiring reporting when an individual buys more than one high-powered rifle along the border, as the administration is pursuing, or passing legislation to crack down on gun traffickers and those that provide them with weapons, as I have proposed, would give investigators and prosecutors the tools they have asked for and need.
It is difficult for Americans to grasp the scale and the brutality of the violence in Mexico — the battle against the drug cartels is a literal war for the Mexican authorities. But it’s a war fought with U.S. weapons. The cartels use the U.S. as their armory because of the easy availability of high-powered firearms.
For all the talk about Fast and Furious, Issa has been loath to discuss the steps we must take to stop the flow of weapons to some of this hemisphere’s most violent criminals.
The irony of this Republican plan to push ahead with a contempt citation is that it can only play out in a predictable scenario. The House will most likely pass the resolution on a party-line vote Thursday. The GOP majority will then go to court to obtain the documents. It will settle after months, or years, of costly litigation — and get exactly what Holder offered it last week.
But we will have lost an opportunity to put the politics aside and finally do something meaningful to fight the traffickers flooding Mexico with guns.
By: Rep Adam Schiff, Politico, June 26, 2012
“Keeping The Faith”: Why The Supreme Court Will Uphold The Constitutionality Of Obamacare
Predictions are always hazardous when it comes to the economy, the weather, and the Supreme Court. I won’t get near the first two right now, but I’ll hazard a guess on what the Court is likely to decide tomorrow: It will uphold the constitutionality of the Affordable Care Act (Obamacare) by a vote of 6 to 3.
Three reasons for my confidence:
First, Chief Justice John Roberts is — or should be — concerned about the steadily-declining standing of the Court in the public’s mind, along with the growing perception that the justices decide according to partisan politics rather than according to legal principle. The 5-4 decision in Citizen’s United, for example, looked to all the world like a political rather than a legal outcome, with all five Republican appointees finding that restrictions on independent corporate expenditures violate the First Amendment, and all four Democratic appointees finding that such restrictions are reasonably necessary to avoid corruption or the appearance of corruption. Or consider the Court’s notorious decision in Bush v. Gore.
The Supreme Court can’t afford to lose public trust. It has no ability to impose its will on the other two branches of government: As Alexander Hamilton once noted, the Court has neither the purse (it can’t threaten to withhold funding from the other branches) or the sword (it can’t threaten police or military action). It has only the public’s trust in the Court’s own integrity and the logic of its decisions — both of which the public is now doubting, according to polls. As Chief Justice, Roberts has a particular responsibility to regain the public’s trust. Another 5-4 decision overturning a piece of legislation as important as Obamacare would further erode that trust.
It doesn’t matter that a significant portion of the public may not like Obamacare. The issue here is the role and institutional integrity of the Supreme Court, not the popularity of a particular piece of legislation. Indeed, what better way to show the Court’s impartiality than to affirm the constitutionality of legislation that may be unpopular but is within the authority of the other two branches to enact?
Second, Roberts can draw on a decision by a Republican-appointed and highly-respected conservative jurist, Judge Laurence Silberman, who found Obamacare to be constitutional when the issue came to the U.S. Court of Appeals for the D.C. Circuit. The judge’s logic was lucid and impeccable — so much so that Roberts will try to lure Justice Anthony Kennedy with it, to join Roberts and the four liberal justices, so that rather than another 5-4 split (this time on the side of the Democrats), the vote will be 6 to 3.
Third and finally, Roberts (and Kennedy) can find adequate Supreme Court precedent for the view that the Commerce Clause of the Constitution gives Congress and the President the power to regulate health care — given that heath-care coverage (or lack of coverage) in one state so obviously affects other states; that the market for health insurance is already national in many respects; and that other national laws governing insurance (Social Security and Medicare, for example) require virtually everyone to pay (in these cases, through mandatory contributions to the Social Security and Medicare trust funds).
Okay, so I’ve stuck my neck out. We’ll find out tomorrow how far.
By: Robert Reich, Robert Reich Blog, June 27, 2012
“Elected By Nobody”: Our Supreme Court Has Lost Its Honor
Once upon a time, in a place called America, there was a government with three equal branches. That America no longer exists.
One branch now rules American life.
It is the Supreme Court, and it consists of nine people elected by nobody. They rule for life. Their power is absolute.
To overrule them requires an amendment to the Constitution, a process so politically difficult, it is nigh on impossible. (The most recent amendment, the 27th, which deals with congressional salaries, took 203 years to ratify.)
Technically, the justices can be removed from office for high crimes and misdemeanors, but none ever has been.
There is no aspect of American life — from civil rights to sports, to guns, to religion, to sex — over which the justices have not exerted control.
There are no qualifications to serve on the Supreme Court.
Though the Constitution lists qualifications to become a president, a senator or a representative, none are listed for the high court. The justices need not be of a certain age or have been born in the United States or even be a citizen.
They do not have to be lawyers, though all have been. (Some, however, never went to law school.)
You could be a justice of the Supreme Court. I could. Justin Bieber, age 18 and a Canadian citizen, also could be, though Senate approval would not be likely.
The greatest power the justices have is carved into the marble of the Supreme Court Building and gilded in gold: “It is emphatically the province and duty of the Judicial Department to say what the law is.”
These are the words of John Marshall, the fourth U.S. chief justice, written in 1803. His decision established forever that the Supreme Court had the right to uphold or strike down laws passed by Congress.
Nowhere in the Constitution is the Supreme Court given this power. The Supreme Court took it in a 4-0 decision. (There were only six members on the court at the time and two were sick.)
The Supreme Court would, over its history, come up with some terrible decisions countenancing slavery, locking up Japanese-American citizens in camps, supporting “separate but equal” segregation and approving the forced sterilization of the mentally ill.
But these were anomalies. Overall, the court would help create a vibrant and free society where citizens could live under the rule of law, where nobody was above the law and where equal rights were promised to all.
For much of modern times, the court has been seen as being above politics. This was very important as a balance to its vast power. Even though justices were appointed by political presidents and approved by political senators, their own politics was to be suppressed.
We realized they were human beings with political opinions, but we expected them to put those opinions aside.
And then came 2000 and the court’s 5-4 decision that made George W. Bush the president of the United States. The decision was nakedly political. “The case didn’t just scar the Court’s record,” Jeffrey Toobin wrote in The New Yorker, “it damaged the Court’s honor.”
Its honor has never fully recovered. Our current court is led by Chief Justice John Roberts, who was appointed by Bush in 2005 after having worked on Bush’s behalf in Florida in 2000.
The signature of the Roberts Court, Toobin wrote, has been its eagerness to overturn the work of legislatures. This is hardly conservative doctrine but today, politics trumps even ideology. In Citizens United v. Federal Election Commission, the court “gutted the McCain-Feingold campaign-finance law” which amounted to “a boon for Republicans.”
“When the Obama health-care plan reaches the high court for review,” Toobin predicted 18 months ago, “one can expect a similar lack of humility from the purported conservatives.”
At this writing, I do not know how a majority of the justices will rule on Obama’s health care plan, which was passed into law by Congress. Two branches of government have spoken, but their speech is but a whisper compared with the shout of our high court.
The die was cast in 2000. And it would take the most dewy-eyed of optimists to expect the court’s decision to be anything other than political.
Justice John Paul Stevens, now retired, wrote in his dissent in Bush v. Gore in 2000: “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
That is a lot to lose. But we have lost it. And getting it back may be a long time in coming.
By: Roger Simon, Politico, June 27, 2012
“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 asserted “deliberative 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
“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
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