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“Hey, Liberals; SCOTUS Ain’t Your Friend”: Conservatives Literally Want To Roll Back The Judicial Clock To 1905

It would be understandable if liberals were feeling kind of relaxed, kind of “Supreme Court, what’s so bad?” over the weekend. John Roberts and Anthony Kennedy delivered for our team on Obamacare, and then Kennedy came through again on same-sex marriage. If this is a conservative court, is getting a liberal one—which will be one of the trump-card arguments for voting for Hillary Clinton next fall—really a matter of such pressing urgency?

Well, yes. As we saw yesterday with the court’s death-penalty and EPA rulings, it’s still a long way from being a liberal court. But there’s more to it than that. People should remember that if a Republican is elected president next year and has the chance to replace Kennedy and/or Ruth Bader Ginsburg with another Samuel Alito, the Obamacare and same-sex marriage standings could easily be reversed. And don’t think there aren’t conservatives out there thinking about it, because there most certainly are, and they literally want to roll back the judicial clock to 1905.

An interesting and important debate opened up over the weekend in conservative legal circles that you should take time to educate yourself about. Many conservatives, of course, are furious with Roberts and Kennedy and are wondering, with conservatives like this, who needs liberals?

The ins and outs of the debate were deftly summarized yesterday by Ian Millhiser of Think Progress. I’m not going to take you as deep into the jurisprudential weeds as Millhiser does, but here’s the basic story. Since the 1980s, “judicial restraint” has been the guiding principle of conservative jurisprudence—the idea that judges shouldn’t make law from the bench but should rule more narrowly and modestly, deferring to the other branches. Roberts was invoking judicial restraint during his confirmation hearings with that famous line about judges just calling “balls and strikes.”

Judicial restraint was appealing to conservatives at the time because to a large extent, majorities of the public shared their views on pressing issues of the day. It was liberals back then who were trying to gain through the courts what they could not accomplish through legislatures and the political process.

But now that reality is to a considerable extent reversed. Public opinion is firmly against conservatives on same-sex marriage, and even on Obamacare, though the law (or the name of the law) remains unpopular, polling before last week’s decision showed that majorities didn’t want the Court to take away people’s health-care subsidies. And besides, Obamacare is after all a law, duly passed by the people’s representatives in Washington.

So now it’s the right trying to achieve through the courts outcomes that it could not through the political process. This is what Roberts in essence said in his majority opinion upholding the health-care law. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

All of this takes us back to Lochner v. New York, a 1905 decision that I’m not going to get into here (Millhiser does) but that in essence used the Fourteenth Amendment to extend rights not to individuals but to employers. The decision led to a series of decisions up through the New Deal that invalidated several key pieces of progressive legislation protecting workers and more. The Lochner majority relied on a view of the Fourteenth Amendment that is now discredited—except on the far right.

Which brings us to this past weekend. Conservative Georgetown law professor Randy Barnett wrote a column lambasting judicial restraint, arguing that “selecting judges with the judicial mindset of ‘judicial restraint’ and ‘deference’ to the majoritarian branches leads to the results we witnessed in NFIB [the first upholding of Obamacare back in 2012] and King.” He wants judges who embrace Lochner and who understand the “duty of judges to invalidate unconstitutional law without restraint or deference.”

Barnett specifically cited Clarence Thomas as an example of a judge who has this depth of understanding. And conservative law professor Jonathan Adler, one of the two, ah, creative minds who brought us the bogus King v. Burwell lawsuit in the first place, tweeted over the weekend that if a Republican wins the election next year, he ought to put Utah Senator Mike Lee on the court. As Millhiser notes, Lee is huge Lochner-ian, to the point that he thinks that Social Security, Medicare, and child labor laws are all unconstitutional.

Barnett wrote in his column that there would heretofore be a new standard that conservative legal scholars will demand of Republican presidential nominees. Now, dimwit candidates like Jeb Bush and Marco Rubio who yammer on about “judicial restraint” and “deference to the other branches” will be exposed as the traitors in waiting that they are, capable of upholding abominable notions like letting people who love each other get married or giving working-class and poor people a little financial help so they can take their kids to the doctor. Judicial restraint, apparently, breeds certain counter-revolutionary tendencies.

And this, finally, circles us back to the 2016 election and health care and marriage equality. Several legal challenges to Obamacare are still pending. Other inventive approaches no doubt await us. For example, a group of legislators in some red state could sue claiming that as the elected representatives of the people, they were denied by the court their proper deliberative role in the process of deciding how to bring health care to their state. If we get a Republican president and he puts a Barnett/Adler-approved justice on the court, poof, sayonara subsidies.

Same-sex marriage’s majority is even more precarious. For example: A gay plaintiff or plaintiffs could bring some kind of discrimination lawsuit (despite the marriage win, there still are other kinds of discrimination lawsuits on the books). A Lochner-loving majority of five could use that suit as the occasion to say, actually, discrimination here is legal, and while we’re at it, this marriage business…

And mind you, from a legal point of view, this would be legitimate. After all, think of it this way: If Kennedy had retired shortly after Citizens United and Barack Obama had put a liberal on the bench, liberals would have advanced at least one legal vehicle to try to get campaign-spending issues before the Court again hoping for reversal. All’s fair in campaign-finance, health care, love, and bigotry.

Imagine how that would feel—same-sex marriage overturned. Right now it’s hypothetical, but it is a long, long way from impossible. And if the Republican wins in 2016, and if Barnett’s arguments carry the day, we could end up with two or three more Alitos on the bench.

Still feeling relaxed?

 

By: Michael Tomasky, The Daily Beast, June 30, 2015

July 1, 2015 Posted by | Conservatives, Liberals, SCOTUS | , , , , , , , , , | Leave a comment

“Supreme Court; If It’s Worth It For Corporations, Pollution May Be Okay”: EPA Can Only Regulate Pollution When It’s Cost-Effective

While LGBTs and healthcare reformers are still nursing their celebratory hangovers, the final Supreme Court case of the 2014-15 term just junked twenty years of environmental regulations.

The case, Michigan v. EPA, specifically dealt with the EPA’s regulation of mercury emissions from power plants under the Clean Air Act—a long, twenty-year process that has been opposed by industry at every turn, even as mercury air pollution from coal-fired power plants has ++irreparably poisoned the Great Lakes .

Today, the clock has been set back. In its third 5-4 decision of the day, with Justice Kennedy again providing the swing vote, industry has prevailed. Writing for the court, Justice Scalia held that the EPA had to factor in costs in deciding whether to regulate, not just how to regulate.

If you think about it, this is an impossible task practically and philosophically.

Practically speaking, the regulatory process for mercury has lasted twenty years—in large part because the EPA weighed dozens of options, evaluating the costs and benefits of each. Today’s decision requires the EPA to balance costs and benefits at the very beginning of the process, before either the costs or the benefits are known.

EPA’s position was that, while costs must, of course, be taken into account in deciding how to regulate toxic chemicals like mercury, the initial decision of whether to regulate them should not be dictated by how much it costs to do so. What matters at that point—whether regulation is “appropriate and necessary” under the statute—is only whether public health is at stake.

In policy-speak—as I wrote in a law review article twenty years ago—the difference is between “risk assessment” and “risk management.” Risk assessment is when you notice a leak in your basement, and decide you have to do something about it. Risk management is when you evaluate your options, and decide what to do.

The difference is obvious, and intuitive. But it does mean that the initial decision may not take cost into account.

Thus the EPA argued that the words “appropriate and necessary” do not imply a balancing of costs and benefits, only a determination of public health. Justice Scalia said this was not “reasonable decisionmaking.” As Justice Kagan said in her dissent, the EPA took costs into account later in the regulatory process. But Justice Scalia said that is not enough—the initial decision, too, must include costs.

This is as incoherent philosophically as it is practically. Think about it this way: Who owns the right to your health?

In the EPA’s reasoning, you do. Under the Clean Air Act, if someone else’s activities are going to meaningfully endanger your health, the government is entitled to stop them.

In Justice Scalia’s reasoning, now the law of the land, the toxic chemical emitters do. If it is economically efficient to poison you with mercury—if the costs to them outweigh the benefits to you, calculating an economic value of your health—then they get to do it.

If this seems outrageous, it’s because it is. Justice Scalia had to focus exclusively on the first sliver of the regulatory process in order to make his argument. “EPA’s interpretation precludes the Agency from considering any type of cost,” he writes. But that’s only true at the initial decision of whether to regulate or not (risk assessment). In subsequent decisions of how to regulate (risk management), cost was taken into account many times.

Which is what makes sense philosophically, as well as practically. Deciding whether to regulate a toxic substance should not be an economic decision. Deciding how to do so should be—of course, the government should choose the most efficient method of regulation, and balance costs and benefits appropriately. But the decision of whether a toxic substance is toxic is a matter of science, not money.

Zooming back a bit, Michigan v. US now starts to look a lot like the corporations-are-people cases like Citizens United and Hobby Lobby. In this growing body of cases, corporate interests have been equated with individual ones. Corporations have rights to free speech and the free exercise of religion.

Now their right to make money running dirty power plants is equated with the right of human beings to breathe free of mercury pollution. Your rights, their rights—what’s the difference?

Ironically, Justice Scalia’s originalism—which last week had him arguing that if a practice could be banned in 1868, it could be banned in 2015—would have cut the other way here, if he took it seriously. For the first hundred years of US history, there were no corporations as we know them today. Corporate charters were time-bound, limited, and revocable. Only in the Gilded Age did they attain “legal personhood” as we know it today.

This is the point conservatives often miss in decrying the growth of government and regulation. Yes, government has grown well beyond anything the Founders could have imagined. But the Founders could not have imagined today’s mega-corporations either.

Peabody Energy, one of the primary backers of the current lawsuit, has an annual revenue of $6.79 billion. In 1812, the largest non-banking corporation in America, the American Fur Company, was worth about $1 million—about $17.2 million in 2015 dollars.

In other words, just one of the corporations fighting the EPA’s mercury regulations is worth 394 times the largest US corporation in existence two centuries ago. While the growth in governmental power since then, represented by regulations like the Clean Air Act, has indeed been significant, it is dwarfed by the growth in corporate power.

Michigan v. US now stands for the principle that corporate interests are equal in kind to human interests. Whether the EPA should regulate mercury depends on whether it’s cost-effective to do so, treating the costs to industry and the benefits to health equally.

Because corporations are people, right?

 

By: Jay Michaelson, The Daily Beast, June 29, 2015

July 1, 2015 Posted by | Clean Air Act, Environment, Michigan v EPA | , , , , , , , | 1 Comment

“The Voters Should Choose Their Representatives”: The Supreme Court’s Election Reform Ruling Is A ‘Big F-ing Deal’

This, in the words of Joe Biden, is a big fucking deal.

The Supreme Court’s vote on marriage equality and its refusal to gut health-care reform justly got the banner headlines over the last few days. But a less-publicized case on Arizona’s independent redistricting commission had those of us fighting for election reform holding our breath in the march toward the last day of decisions.

At stake was nothing less than the ability to fight back against the forces of polarization, paralysis, and hyper-partisanship in our politics. Out of 435 House seats, only 35 are considered competitive, and the rigged system of redistricting is to blame. It’s a process of collusion between the two parties that takes place every 10 years in state legislatures and draws the congressional district lines—a subversion of democracy where politicians pick their people rather than people picking their politicians.

The result is a screwed up incentive system where members of Congress are virtually guaranteed re-election as long as they don’t lose a low turnout partisan primary, which means they live in fear of offending the base rather than reaching across the aisle to solve problems.

Increasingly, the remedy for this corrupt status quo has been voters bypassing the state legislators with ballot referendums that create independent redistricting commissions. California has done it to great effect, dislodging 14 incumbents who decided to retire after the independent commission promised to make their re-elections less than rubber-stamped.

And that’s what Arizonans did in advance of the 2010 districting, which upset then-Governor Jan Brewer. First she tried to remove the independent commission’s chairwoman, Colleen Mathis, in a power grab that was overruled. Then Brewer decided to take the commission to court, arguing that the panel—composed of two Republicans, two Democrats, and one independent—tried to “elevate ‘competitiveness’ over other goals.” Seriously.

“This isn’t anything more than Republicans trying to hold on to a majority in a state where they constitute less than a third of the voters,” explained former Phoenix mayor Paul Johnson at the time. But still the baseless, desperate, cynical case wound its way to the Supreme Court.

If the court decided that the voters’ attempt to impose a nonpartisan redistricting commission over the self-dealing of the Arizona state legislators was unconstitutional, the best mechanism citizens have to restore fairness to congressional mechanisms would have been removed.

As Stanford law professor Nate Persily, the author of the new book Solutions to Political Polarization in America, explained: “Not only would many redistricting commissions, such as Arizona and California’s, have been thrown out, but any state regulation of congressional elections that was passed by initiative would have been legally vulnerable. This would have cast doubt, for instance, on California’s nonpartisan primary, Arizona’s voter ID law, and any number of other laws regulating voter registration, campaign financing, and ballot technology.”

It could have meant open season on election reforms of all kinds. But happily, by a narrow 5-4 vote, with Justice Anthony Kennedy serving in his role as the swing vote—possibly aided here by his roots in California, which has seen evidence of success in election reform—the Supreme Court decided to back the integrity of Arizona’s independent redistricting commission.

As Justice Ruth Bader Ginsburg wrote in her majority decision (PDF): “We see no constitutional barrier to a State’s empowerment of its people.” She continued by pointing out that “‘[P]artisan gerrymanders,’ this Court has recognized, ‘[are incompatible] with democratic principles’” and attested to the fact that reforms like independent redistricting commissions have resulted in “districts both more competitive and more likely to survive legal challenge.” Quoting founding fathers from Madison to Hamilton, the decision concluded that Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representatives, not the other way around.”

The decision is a big win for election reform and a defeat for those professional partisan forces that want to keep the rigged system of redistricting in place. Now the prospect for future nonpartisan election reforms remains open and inviting to more citizens who understand that when you change the rules, you change the game.

 

By: John Avlon, The Daily Beast, June 30, 2015

July 1, 2015 Posted by | Democracy, Gerrymandering, Redistricting | , , , , , , , , | Leave a comment

“Self-Avowed Expert On ‘The Negro'”: Rand Paul Meets With Rogue Rancher Cliven Bundy

Rand Paul met privately with Cliven Bundy on Monday, the Nevada rancher and anti-government activist told POLITICO.

The encounter came after Bundy attended an event for the Kentucky senator’s presidential campaign at the Eureka Casino in Mesquite, Nevada. When the larger group dispersed, Bundy said, he was escorted by Paul’s aides to a back room where he and the Republican 2016 contender spoke for approximately 45 minutes. (“There were no scheduled meetings at Senator Paul’s stop in Mesquite. He spoke to many people who came to this public event, none for 45 minutes and none planned,” Paul spokesman Sergio Gor said.)

The Nevada rancher said that he had expected only to have an opportunity to shake hands with Paul and make small-talk. He was surprised when campaign aides found a private room and allowed Bundy, his wife and son to speak with the candidate for the better part of an hour.

According to Bundy, the two mainly discussed federal land oversight and states’ rights, in addition to education policy — a theme Paul brought up in his speech.

“I don’t think he really understood how land rights really work in the western United States,” Bundy said. “I was happy to be able to sort of teach him.”

According to the Associated Press, Paul told the audience during the main event, “I think almost all land use issues and animal issues, endangered species issues, ought to be handled at the state level.”

“I think that the government shouldn’t interfere with state decisions, so if a state decides to have medical marijuana or something like that, it should be respected as a state decision,” Paul reportedly added.

Bundy said that in their private meeting, Paul brought up the work of the American Lands Council, which raises money from groups like the Koch brothers’ Americans for Prosperity to wrestle land from the federal government and return it to the states via negotiations, legislation and litigation.

“I disagree with that philosophy,” Bundy said of the ALC’s legalistic approach. “My stand is we are already a sovereign state. The federal government doesn’t need to turn this land back to us. It’s already state land.”

“I don’t want to sell this land to private ownership, because I believe I already have stewardship.” He added, “I educated Rand on that point,” and said that the candidate seemed sympathetic to his point of view.

“I don’t claim ownership,” Bundy said. “I claim rights.”

Bundy first made national headlines in the spring of 2014, when the federal government temporarily closed a large swathe of U.S. government-owned land in Clarke County, Nevada, to capture and impound Bundy’s cattle as a penalty for more than $1 million in unpaid grazing fees. Bundy refused to federal authority on the land where his family had lived for more than 120 years, but federal courts repeatedly sided with the Bureau of Land Management.

Shortly after the BLM closed the land, hundreds of armed militia members — including members of far-right groups like the Oath Keepers and the White Mountain Militia — descended on the land outside of Mesquite, Nevada. After a weeklong fight and a twenty-minute standoff where federal agents and protesters pointed guns at one another, the BLM ultimately backed down and returned Bundy’s cattle.

Though the government agency has said that it will continue to work through the courts to exact money owed by Bundy, he told POLITICO that no federal vehicle has returned to the land for more than a year.

“The federal government is off my ranch and off this area of Clark County and they shouldn’t come back,” Bundy said.

After Bundy’s standoff, he briefly became a hero to far-right conservatives, bolstered by coverage on Fox News and praise by prominent Tea Party politicians like Paul and Sen. Dean Heller (R-Nev.).

But his star quickly plummeted after he made inflammatory comments about African Americans being better off under slavery.

“I want to tell you one more thing I know about the Negro,” Bundy told supporters shortly after the standoff, according to video footage captured by an onlooker. He recounted a time he drove past public-housing in Las Vegas “and in front of that government house the door was usually open and the older people and the kids — and there is always at least a half a dozen people sitting on the porch — they didn’t have nothing to do.

“And because they were basically on government subsidy, so now what do they do? They abort their young children, they put their young men in jail, because they never learned how to pick cotton. And I’ve often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy? They didn’t get no more freedom.”

After those comments went public, Paul walked back his support and issued a statement saying Bundy’s “remarks on race are offensive and I wholeheartedly disagree with him.”

Bundy then apologized for the comments, saying at a press conference, “I’m probably one of the most non-racist people in America.”

“I hope I didn’t offend anybody. If I did, I ask for your forgiveness,” he added. “But I meant what I said. It comes from the heart.”

As for Bundy, he said he has not yet made up his mind about who he will support in 2016. He said that he’s focused on which national politicians are most keen to return power to the states and local communities and said that, in their private meeting, Paul seemed keen to do so.

But Democrats, even before word of the private meeting surfaced, attacked Paul for what was first reported as a chance encounter. The Democratic National Committee sent an email to supporters arguing that Paul isn’t as sensitive to African-American issues as he says.

Michael Tyler, the group’s director of African-American Media, wrote, “Remember Rand Paul preaching of broadening the Republican Party’s tent to include communities they typically ignore? Remember Rand Paul claiming he was the perfect candidate to spearhead this outreach? Go ahead and throw that idea out the window.”

“Rand Paul spent his day in Nevada kissing the ring of Cliven Bundy,” Tyler added. “The Cliven Bundy who is a self-avowed expert on ‘the negro.’”

 

By: Adam B. Lerner, Politico, June 30, 2015

July 1, 2015 Posted by | Cliven Bundy, GOP Presidential Candidates, Rand Paul | , , , , , , , , | 1 Comment

“He’s Shifted, Backflipped, And Outright Lied”: Christie; A Personality-Driven Candidate Makes Contradictory Campaign Promises

“Telling It Like It Is” — That’s Chris Christie’s campaign slogan, revealed the day before he formally announced his candidacy for president. It’s meant to evoke his brash persona, which is the biggest advantage he has in a crowded GOP field.

Christie is the 14th Republican candidate to announce, and is not expected to be the last. But with trailing poll numbers and an iffy record in New Jersey, where he is in his sixth year as governor, he will be a hard sell for GOP primary voters. It makes sense, then, that his announcement speech Tuesday morning touted bombast over bonafides, rhetoric over record, and a promise of a clean campaign that runs contrary to everything we know about the bellicose, secretive governor.

His speech opened with “We Weren’t Born to Follow” by Jersey rockers Bon Jovi, whose blue-collar, hard-won affirmations provided a fitting soundtrack to the event. (The announcement closed with “Who Says You Can’t Go Home?” by the same group.) Christie’s address was rooted in his humble origins, beginning with his choice of venue — the gymnasium of Livingston High School, from which he graduated in 1980 — and segued to his family history: a tale of blue-collar success and the American Dream realized, with Christie himself embodying the dreams of his parents and grandparents.

As in interviews he’s given, he was light on policy and the specifics of his accomplishments as governor. He mentioned “reforming tenure” and “reforming pensions and health benefits,” but didn’t delve into details, possibly because he has a messy and contentious track record on the subject. Other than a line about fixing the country’s “broken entitlement system” and “encouraging businesses to invest in America again” through deregulation, he didn’t say much about what his platform would be. (He may not have much to say, period, other than the word “reform.”)

What he did play up was his persona — imperious, truth-telling, no-nonsense Christie, who tells it like it is and has the ability to work with the other side to get things done.

“Both parties have failed our country,” he said, his voice rising. “Somehow now ‘compromise’ is a dirty word. If Washington and Adams and Jefferson believed compromise was a dirty word, we’d still be under the crown of England.”

Befitting the high-school setting, he drew parallels to high-school concerns — namely, popularity contests. He said that he was not running for prom king, and that respect was more important than love. “I am not looking to be the most popular guy who looks in your eyes every day and says what you want to hear,” only to turn around and do something else, he said.

And yet his critics allege that he’s done exactly that – on pension reform and gun legislation, Christie has shifted, backflipped, and outright lied, and always managed to modulate his style of confrontation and candor — to suit whatever position was most expedient at the time.

His pledge to run a campaign that wouldn’t “tear people down,” is quite a leap for a man who is widely known for his humorous, often nasty takedowns of others – YouTube is littered with videos of him calling out those who criticize him or ask what he thinks are silly questions, calling them “idiots” or “stupid” or worse.

And when he’s not belittling those asking the questions, Christie has been known to simply not answer them.

He promised a campaign free of pandering, spin, or focus group-tested answers: “You get what I think whether you like it or not or whether it makes you cringe every once in a while. A campaign when I’m asked a question, I will give the answer to the question asked, not the answer my political consultants told me to get backstage.”

Christie’s bravado about not being run by political operatives belies the fact that he’s a career politician who obviously knows how the game is played.

“I mean what I say and I say what I mean – that’s what America needs right now,” he said in his closing remarks. He promised to be the kind of candidate who would be open – in his eyes, heart, ears, and mind. Ironic, since his administration isn’t known to be forthcoming, and it’s hard to imagine that as president he’d be any more “open” than he is now.

Surrounded by supporters, against the backdrop of the American flag, and flanked by his family, Christie choked up as he recounted why he does what he does: “I wake up every morning knowing that I have an opportunity to do something great. That’s why this job is a great job and that’s why the president of the United States is an even greater job.”

 

By: Stephanie Schwartz, The National Memo, June 30, 2015

July 1, 2015 Posted by | Chris Christie, GOP Presidential Candidates, GOP Primaries | , , , , , | Leave a comment

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