“Radical Libertarianism Reshaping The Bench”: John Roberts’ Supreme Court Is The Most Meddlesome In U.S. History
For the third straight July, the Supreme Court left court-watchers scratching their heads about whether the Court lived up to its reputation as the “most conservative” in generations, if not ever. In the New York Times, former Obama Acting Solicitor General Neal Katyal hailed “The Supreme Court’s Powerful New Consensus.” Liberal experts tended to echo Slate’s Emily Bazelon in dismissing such revisionists as hoodwinked by “the devastating, sneaky genius of John Roberts’ [superficially anodyne but right-tilting] opinions.”
What strikes me is a libertarian streak in the justices’ opinions. On civil liberties, where right- and left-leaning libertarians concur—in particular, Fourth Amendment protection for smartphones—the Court moved the law to the left. But, likewise reflecting libertarian ascendance, the Court continues to veer sharply right on issues touching on corporate autonomy and regulation of business. Most importantly, this term’s cases confirm a critical but generally overlooked facet of twenty-first century libertarian jurisprudence. It is not just about reclaiming what Randy Barnett famously called the “lost Constitution.” Less visibly but often more consequentially, libertarian academics, advocates, and judges have long advocated thrusting the courts into much more aggressive roles in resolving the details of messy non-constitutional disputes—in interpreting statutes, and, in particular, in scrutinizing and micro-managing executive and regulatory agencies’ applications of the laws they administer. Here, the not-always-tacit agenda has been to gum up the works of progressive programs that, realistically, cannot be repealed or invalidated outright.
A window onto this Court’s reactionary drift opened during a testy exchange at an oral argument six months ago on January 21. The case was Harris v. Quinn, which involved a challenge to the authority of state governments to permit public employee unions to collect fees covering the costs of negotiating on behalf of non-members they are legally required to represent. Choosing her words pointedly, Justice Elena Kagan questioned the challenging non-members’ counsel:
Since 1948, since the Taft-Hartley Act, there has been a debate in every State across this country about whether to be a right-to-work State, and people have disagreed. … And is it fair to say that you’re suggesting here … that, for 64 years, people have been debating the wrong question … because, in fact, a right-to-work law is constitutionally compelled? (emphasis added)
The challengers’ counsel, a staff attorney for the National Right to Work Legal Defense Foundation, did not flinch. “In the public sector,” he responded, “Yes, … compulsory fees are illegal under the First Amendment.”
When the Court finally released its decision, on the final day of the term, June 30, it did not exactly dial back those 64 years, at least not for all public workers and workplaces nationwide. Justice Alito’s 5-4 majority decision barred the imposition of union fees on non-members, but only with regard to a novel category he created—“personal homecare assistants,” or nurses and other providers paid by state governments with Medicaid funds, to treat disabled and poor elderly patients in their homes.
But what matters about this case is not the answer the conservative majority gave on its particular facts, but the question they chose to answer. As Justice Kagan noted, that question—whether state (or federal) law can authorize public employee unions to distribute the costs of representation across all employees in a bargaining unit, while requiring the union to represent non-union members as well as members—had for generations been completely off the table. The conservative majority has put that fundamental understanding in play, by transmuting the First Amendment—heretofore understood as a safeguard for civil liberties—into a functional regulator of economic relations, and de-stabilizing nearly three quarters of a century of constitutional precedents. These precedents are not technicalities. On the contrary, were the case-law otherwise, all employees, union members as well as non-members, would have every incentive to “free-ride,” and reap the benefits of union representation without sharing in the costs. Public employee unionism would be weakened, if not crippled.
The doctrinal counter-revolution is not confined to labor-management relations. Prior to the New Deal, the Supreme Court pushed an anti-regulatory agenda in the name of safeguarding individuals’ economic liberty. The FDR Court repudiated this tradition in a 1938 decision about milk regulation, United States v. Carolene Products. Carolene Products laid down a landmark a rule: Economic regulatory legislation “is not to be pronounced unconstitutional unless, in the light of the facts made known or generally assumed, it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” Harris v. Quinn flagrantly violates that rule. States surely have a “rational basis” for ensuring fair-share contributions from non-union public employees.
After 1938, through the balance of the twentieth century, and, indeed, well into the twenty-first, Supreme Court majorities never overtly and, only rarely, departed from or implicitly challenged the hands-off economic regulation mandate of rational basis deference. Of course, during those decades, there were recurrent, fiery right-left battles on and about the Supreme Court. But those battles were about the extent to which the Court should actively protect individual civil and political rights, not economic rights. Only a small cadre of libertarian academics and think tanks disputed the consensus confining economic liberty to second-class constituitonal status. No more. No longer marginalized, libertarian-inspired legal ideas are now a force to be reckoned with. That tectonic shift was first proclaimed two years ago in the Court’s opinions in the challenge to the Affordable Care Act’s individual mandate and expansion of Medicaid, even though Chief Justice John Roberts’ controlling opinion largely upheld the law. This term’s decisions reinforce that trend.
Although Harris v. Quinn invoked the Constitution to trump an incontestably rational regulatory law, other important decisions about regulation and the economy this term involved ordinarily below-the-radar questions of statutory interpretation and judicial deference to agency decisions. And libertarian academics’ and advocates’ enthusiasm for replacing Carolene Products-style rational basis deference with active judicial micro-management left an imprint in nearly all of them. For example, reviewing the first tranche of President Obama’s global warming program, Justice Scalia, writing for a seven-member majority, struck down the regulation at issue, and castigated EPA for reading an exception into an assertedly “unambiguous” statutory provision. But the Court then read a similar exception into another statutory term, that yielded 97 percent of the on-the-ground results the agency’s version would have achieved. How could EPA’s version have no defensibly rational basis, and why would the justices not simply defer, if it differed so immaterially from theirs?The answer seems to be that Scalia and his colleagues felt it important to assert their power to substitute their judgment for the agency’s—EPA or any other agency—almost for the sake of doing so.
Similarly, in its two decisions reviewing Affordable Care Act contraception regulations, the conservative majority second-guessed extraordinarily granular Executive Branch policy and factual determinations, substituting their own ideas for configuring a compromise to mesh competing policy goals attributed to two statutes, the ACA and the Religious Freedom Restoration Act. The majority suggested that alternative administrative solutions were readily available, that would, consistent with the Court’s orders, permit employees and students, in institutions averse to including contraception coverage in their health insurance plans, “to obtain, without cost, the full range of FDA approved contraceptives.” Dissenting Justice Sonia Sotomayor, and many health experts, vehemently disagreed. The lasting lesson from these cases is not which side is right, but that the conservative justices are so eager to reach to tackle these policy and factual kerfuffles at all. Such judicial intrusions, into the nitty-gritty of implementing complex, often conflicting statutory provisions, mock landmark decisions—by the Rehnquist Court no less than its more liberal predecessors—that long enforced and repeatedly reaffirmed the post-New Deal consensus mandating judicial restraint and deference to Congressional and Executive legislative and policy judgments.
Looking to the future, most of the battles over preserving the progressive jurisprudence that kept hostile judges from crippling the New Deal, the Great Society, and—so far—the major products of President Barack Obama’s tenure, could well be fought on these non-constitutional fronts. Already, some observers have noted that in several end-of-term opinions, justices on both sides of the Court’s ideological divide have sparred elaborately about methodologies for interpreting statutes and reviewing agency actions. Could these academic-seeming debates constitute “shadow-boxing” over potential high-voltage controversies that could wind up on next year’s docket and beyond? A particular target for speculation in this vein, especially on the right, is a brace of pending cases currently poised for decision in two courts of appeal, in which ACA opponents hope to shut down Healthcare.gov. They claim that a four-word phrase in the Act must be read in isolation, to permit only state-run exchanges, not federally run exchanges in the 36 states that have opted out of setting up exchanges of their own, to provide tax credits and subsidies for low and moderate income applicants for health insurance. So far, that claim has been rejected by the two district courts yet to rule, as contrary to what even Justice Scalia, in his Clean Air Act global warming decision opinion this June, acknowledged as the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Much could depend on whether Justice Scalia and the rest of his conservative colleagues choose to take that “fundamental canon” seriously, if and when the fate of Obamacare is once again on their griddle.
By: Simon Lazarus, The New Republic, July 10, 2014
“Who Wants A Depression?”: The Rich Believe That What’s Good For Them Is Good For America
One unhappy lesson we’ve learned in recent years is that economics is a far more political subject than we liked to imagine. Well, duh, you may say. But, before the financial crisis, many economists — even, to some extent, yours truly — believed that there was a fairly broad professional consensus on some important issues.
This was especially true of monetary policy. It’s not that many years since the administration of George W. Bush declared that one lesson from the 2001 recession and the recovery that followed was that “aggressive monetary policy can make a recession shorter and milder.” Surely, then, we’d have a bipartisan consensus in favor of even more aggressive monetary policy to fight the far worse slump of 2007 to 2009. Right?
Well, no. I’ve written a number of times about the phenomenon of “sadomonetarism,” the constant demand that the Federal Reserve and other central banks stop trying to boost employment and raise interest rates instead, regardless of circumstances. I’ve suggested that the persistence of this phenomenon has a lot to do with ideology, which, in turn, has a lot to do with class interests. And I still think that’s true.
But I now think that class interests also operate through a cruder, more direct channel. Quite simply, easy-money policies, while they may help the economy as a whole, are directly detrimental to people who get a lot of their income from bonds and other interest-paying assets — and this mainly means the very wealthy, in particular the top 0.01 percent.
The story so far: For more than five years, the Fed has faced harsh criticism from a coalition of economists, pundits, politicians and financial-industry moguls warning that it is “debasing the dollar” and setting the stage for runaway inflation. You might have thought that the continuing failure of the predicted inflation to materialize would cause at least a few second thoughts, but you’d be wrong. Some of the critics have come up with new rationales for unchanging policy demands — it’s about inflation! no, it’s about financial stability! — but most have simply continued to repeat the same warnings.
Who are these always-wrong, never-in-doubt critics? With no exceptions I can think of, they come from the right side of the political spectrum. But why should right-wing sentiments go hand in hand with inflation paranoia? One answer is that using monetary policy to fight slumps is a form of government activism. And conservatives don’t want to legitimize the notion that government action can ever have positive effects, because once you start down that path you might end up endorsing things like government-guaranteed health insurance.
But there’s also a much more direct reason for those defending the interests of the wealthy to complain about easy money: The wealthy derive an important part of their income from interest on bonds, and low-rate policies have greatly reduced this income.
Complaints about low interest rates are usually framed in terms of the harm being done to retired Americans living on the interest from their CDs. But the interest receipts of older Americans go mainly to a small and relatively affluent minority. In 2012, the average older American with interest income received more than $3,000, but half the group received $255 or less. The really big losers from low interest rates are the truly wealthy — not even the 1 percent, but the 0.1 percent or even the 0.01 percent. Back in 2007, before the slump, the average member of the 0.01 percent received $3 million (in 2012 dollars) in interest. By 2011, that had fallen to $1.3 million — a loss equivalent to almost 9 percent of the group’s 2007 income.
That’s a lot, and it surely explains a lot of the hysteria over Fed policy. The rich are even more likely than most people to believe that what’s good for them is good for America — and their wealth and the influence it buys ensure that there are always plenty of supposed experts eager to find justifications for this attitude. Hence sadomonetarism.
Which brings me back to the politicization of economics.
Before the financial crisis, many central bankers and economists were, it’s now clear, living in a fantasy world, imagining themselves to be technocrats insulated from the political fray. After all, their job was to steer the economy between the shoals of inflation and depression, and who could object to that?
It turns out, however, that using monetary policy to fight depression, while in the interest of the vast majority of Americans, isn’t in the interest of a small, wealthy minority. And, as a result, monetary policy is as bound up in class and ideological conflict as tax policy.
The truth is that in a society as unequal and polarized as ours has become, almost everything is political. Get used to it.
By: Paul Krugman, Op-Ed Columnist, The New York Times, July 10, 2014
“The Hill On Which He’ll Die”: John Boehner’s Lawsuit Is A Political Dud
On Thursday evening, House Speaker John Boehner (R-OH) finally revealed the details of his long-awaited plan to sue President Barack Obama, and they come as something of a surprise. In essence, the Speaker is asking the House to sue the president for not implementing Obamacare quickly enough.
“Today we’re releasing a draft resolution that will authorize the House to file suit over the way President Obama unilaterally changed the employer mandate,” Boehner said in a statement. “In 2013, the president changed the health care law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it. That’s not the way our system of government was designed to work. No president should have the power to make laws on his or her own.”
Legally, Boehner’s plan is on shaky ground. While the House has never institutionally sued a president for not enforcing the law, several individual members of Congress have tried, and almost all of their cases were dismissed for lack of standing. Even if a court agrees to hear the case, it’s not at all clear that President Obama broke the law by delaying the implementation of the employer mandate, giving employers with more than 50 full-time employees an extra year to offer their workers health insurance. And even if the House wins its suit, its prize would likely be the immediate implementation of a policy which Republicans claim to hate.
Politically, Boehner’s plan seems destined to fall flat. It promises to undermine Republicans’ own talking points, while potentially pushing the far right even further towards open revolt against his authority.
When Speaker Boehner announced his intention to sue the president, he laid out a broad range of areas in which President Obama had supposedly acted illegally.
“On one matter after another during his presidency, President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce – at times even boasting about his willingness to do it, as if daring the America people to stop him,” Boehner wrote. “On matters ranging from health care and energy to foreign policy and education, President Obama has repeatedly run an end-around on the American people and their elected legislators, straining the boundaries of the solemn oath he took on Inauguration Day.”
But when it came time to pick an executive action for the lawsuit, he settled on one that Republicans themselves supported. House Republicans wanted to delay the employer mandate, and they voted to do so in July 2013. And when President Obama delayed it unilaterally, Republicans didn’t complain that he abused his power. Instead, they urged him to do it again.
“Is it fair for the president of the United States to give American businesses an exemption from his health care law’s mandate without giving the same exemption to the rest of America? Hell no, it’s not fair,” Boehner said at the time. “We should be thinking about giving the rest of America the same exemption that Obama last week gave businesses.”
Now House Republicans must explain why, one year ago, they were encouraging the president to “run an end-around” on them.
They also must explain what happened to all of the other examples of President Obama’s iron-fisted tyranny. As The New Republic’s Brian Beutler points out, Republicans — led by Boehner — have literally spent years accusing President Obama of recklessly breaking the law when it suits his needs. The fact that the employer-mandate delay from one year ago is the only example that they could come up with badly undermines that talking point.
Finally, by picking the employer mandate as the hill on which he’ll die, Boehner may have created an even greater political problem for himself. The Speaker’s decision to sue the president has been widely interpreted as a tactic to placate right-wing Republicans who would rather see Boehner attempt to impeach Obama. Whether he’s successful remains to be seen. Boehner’s lawsuit plan has certainly not changed the minds of those Republicans who have already called for Obama to be removed from office, and it seems very plausible that it won’t leave the congressmen who have accused Obama of breaking the law in other areas — such as immigration reform — satisfied. If one of them chooses to ignore Boehner’s wishes and introduces a resolution of impeachment, it would create a crisis for Boehner’s leadership — and end the Republican Party’s hopes of keeping its base under control through the midterms.
By: Henry Decker, The National Memo, July 11,2014
“Pro-Punishment”: Right-To-Lifers Are Hypocrites — And Here’s Why
A caveat: I don’t include nuns in this formulation, simply because “right-to-life” has come to mean the anti-abortion movement exclusively. Nuns have the ethical and spiritual integrity to be consistent in their belief that all life (as they define it) is sacred. In fact, that consistency is what illuminates the hypocrisy of the anti-choice movement.
Right-to-lifers (unlike many nuns) do not hold candlelight vigils outside prisons when a death row inmate is about to be executed. No buffer zone needs to be established, corrections officials don’t have to worry about their personal addresses being posted, or their facilities being bombed. Wardens are not shot by those who insist “Thou Shall Not Kill” is a commandment that must be respected no matter what the circumstances. In fact, these Biblicists are just as informed by the Hammurabi code: “an eye for an eye, a tooth for a tooth.” They adhere to the notion that the “right” to life can be revoked; it is conditional on one’s actions.
This tacit admission that life is not universally deserved is a crucial crack in their stance against abortion. They don’t decry our military engaging in “just” war, in the execution of murderers and terrorists. Ironically for the Tea Party libertarians among them, they don’t even object to the right of the state to determine whether some citizens should forfeit their lives for some crimes. But they object to the right of a woman to decide for herself whether her fetus, or even a fertilized egg not yet attached to the uterine wall, should be carried to term. In their thinking, fetuses have done nothing to “deserve” their fate.
You can’t, on the one hand, claim that all life is sacred, and then remain silent when men and women — some later determined to be innocent — are executed. That silence is a concession to the principle that the right to life is conditional. One can see this psychology of “deservedness” in the present humanitarian crisis on the border. The angry anti-immigrant placard-wavers are overwhelmingly rightwing, of the very same ilk that decries abortion. The right-to-lifers ringing abortion clinics have not abandoned their posts to run to the border in defense of real woman and children. For “they” do not “deserve” a chance at life in the United States, free from the violence and deprivation they are fleeing. They are “illegal.” They “bring disease” (an absurd charge that has become ubiquitous.) By extension, those yearning masses puff up the inner contention of the flag-waving nationalists that being born here is some sort of accomplishment instead of an accident of birth. As if learning English as a toddler was an extraordinary feat of patriotism: Congratulations, your racism comes without an accent!
If we concede that some life is deserved and some not — after all, very few liberals cried at the death of Osama Bin Laden — then we can confront the thorny question of whether some fetuses somehow deserve to live while others do not. I would reframe the issue as whether every child deserves to be wanted, to be welcomed without resentment, to have a mother who doesn’t consider her offspring a burden. How many millions have to grow up in poverty, fill our foster care systems, endure sexual, physical and emotional abuse, end up in prison or even on death row for the right-to-lifers to acknowledge that life without sufficient love or resources breeds despair without hope?
Let me state, for those who are prone to confuse “unwanted” with “unplanned,” that I fully support the decision of all women who may have conceived accidentally to bring the birth to term — whether she brings up the child herself or chooses to provide a loving family with an adoptive gift. Pro-choice does not mean pro-abortion. The irony, of course, is that those who support a woman’s right to choose are also the most fervently pro-access-to-contraception while the right-to-lifers are the most hostile to it, as evidenced in the recent Hobby Lobby decision. This has always made no sense. Those who oppose abortion should be the most passionate in making it as rare as possible.
The truth is that it is not the right of the fetus to life that really drives them. It is their belief that woman who have sex for pleasure should bear the “consequences” of their decision. The hostility is tangible — I have the hate-tweets to prove it. For men, not so much. Hobby Lobby had no objection to reimbursing Viagra and Cialis, made no stipulation that it be made available for married men only. The sole purpose of these two drugs is to facilitate sexual pleasure in the male. For those men who wish to procreate, an additional benefit is the ejaculation only an erection allows. I have heard of no right-to-life organization offering to pay for paternity suits to force men to bear the consequences of not using contraception. Practically speaking, a man who doesn’t want to take responsibility for a child he has sired rarely has to.
Many of course, do the “right” thing. And therein, I suspect, lies the true source of the hostility toward woman who wish to have sex without risking having a baby. Shotgun weddings are practically an institution in the states where the fever against reproductive rights runs hottest. How many unhappy marriages have resulted from a hormonal impulse between teenagers? How many unions of obligation have turned into nightmares of incompatibility, ending in divorce, custody battles or worse? How many husbands and wives caught for life in unplanned parenthood would do it all again if they could relieve the moment they chose passion over purity?
They aren’t pro-life, they are pro-punishment. Murderers must be executed, the undocumented must be deported, and women who dare to control their destiny as they themselves did not cannot be allowed to get away with it.
By: Mark Olmsted, The Huffington Post Blog, July 11, 2014
“For The Eighth Time”: Benghazi Conspiracy Theory Collapses, Again
For years, conspiracy-minded Republicans have insisted that someone in the Obama administration — usually, then-Secretary of State Hillary Clinton — issued a “stand-down order” to the U.S. military on the night of the 2012 attack at the U.S. mission in Benghazi, preventing a Special Operations team from intervening and saving the lives of the four Americans who died in the assault.
According to newly released testimony, they are flat-out wrong.
As the Associated Press reported on Friday, transcripts of hours of testimony from nine military officers were made public this week, completely disproving the conspiracy theory:
The “stand-down” theory centers on a Special Operations team — a detachment leader, a medic, a communications expert and a weapons operator with his foot in a cast – that was stopped from flying from Tripoli to Benghazi after the attacks of Sept. 11-12, 2012, had ended. Instead, it was instructed to help protect and care for those being evacuated from Benghazi and from the U.S. Embassy in Tripoli.
The senior military officer who issued the instruction to “remain in place” and the detachment leader who received it said it was the right decision and has been widely mischaracterized. The order was to remain in Tripoli and protect some three-dozen embassy personnel rather than fly to Benghazi some 600 miles away after all Americans there would have been evacuated. And the medic is credited with saving the life of an evacuee from the attacks.
The report goes on to note that “despite lingering public confusion over many events that night, the testimony shows military leaders largely in agreement over how they responded to the attacks.”
This is not the first time the “stand-down order” myth has been debunked; Lt. Colonel S.E. Gibson and General Martin Dempsey had already told Congress as much. But the report’s timing could prove particularly problematic for the congressional Republicans who have repeatedly pushed the myth.
It arrives as the House Select Committee tasked with probing the attack for the eighth time is “ramping up” its investigation. And as the National Journal’s Lucia Graves points out, the panel happens to be filled with Republicans who have eagerly pushed the conspiracy.
Rep. Trey Gowdy (R-SC), the committee chairman, suggested that the Benghazi attack “kinda undercuts” the principle that “we’re not gonna send anybody into harm’s way under our flag without adequate protection, and if they get in trouble we are gonna go get ‘em. We’re gonna save ‘em. Or at least we’re gonna make a heck of an effort to do it.”
Rep. Mike Pompeo (R-KS) has said that the military “had the opportunity” to take action, but didn’t.
Rep. Jim Jordan wondered, “Why weren’t we running to the sound of the guns?”
Well, now their questions have been answered — again — yet the panel is still planning to spend up to $3.3 million to relitigate them. And the task of explaining why they need to spend more than the yearly budget of the House Veterans Affairs Committee or the House Ethics Committee to keep asking questions that have already been answered just got a lot harder.
By: Henry Decker, The National Memo, July 11, 2014
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