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“Herein Lies The Problem”: Can Antonin Scalia Actually Read The Constitution?

Antonin Scalia:

“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion,” Justice Scalia said.

“That’s a possible way to run a political system. The Europeans run it that way,” Justice Scalia said. “And if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.”


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I suppose a very pro-religious reading might suggest that an elected official might be able to place a religious icon on public property under the argument that it’s free exercise and not technically a law establishing religion. I would disagree with that assessment, but it wouldn’t take a crazy person to make that judgment.

But Scalia is saying that the Constitution doesn’t prevent the government from favoring religion over non-religion. That’s crazy. The Constitution is actually very clear on that point. It doesn’t say that Congress can’t establish one religion over another. It says that Congress shall make no law establishing religion. Period.

A first grader could tell Scalia that. I choose not to believe that Scalia is a fool or insane. That would be too terrifying. It’s easier to simply believe that Scalia is an ideologue, a dishonest broker who is willing to say anything to serve his preconceived ideas about right and wrong.


By: David Atkins, Washington Monthly Political Animal, October 5, 2014

October 6, 2014 Posted by | Antonin Scalia, Constitution, Religion | , , , , , | Leave a comment

“A Weighty Decision”: Boehner Ready To Punt On ISIS Vote Until 2015

It was Aug. 8, seven weeks ago tomorrow, that President Obama launched U.S. airstrikes on Islamic State targets in Iraq. It was this week when the president expanded the mission to include strikes on ISIS targets in Syria.

And it was last week when Congress decided to give itself another 54 days off, rather than extend legal authority to the Obama administration to conduct this military offensive.

Most of us have been working under the assumption that Congress had one of two options: (1) debate the use of force during Congress’ post-election, lame-duck session; or (2) return to work before the election to do its duty and meet its constitutional obligations.

But in a new interview with Carl Hulse, House Speaker John Boehner (R-Ohio) points to Door #3 – also known as See You Next Year.

[Boehner is increasingly convinced that Congress must hold a full debate on granting President Obama the authority to use military force against terrorists…. But Mr. Boehner believes a post-election, lame-duck session is the wrong time for such a weighty decision.

“Doing this with a whole group of members who are on their way out the door, I don’t think that is the right way to handle this,” he said.

Mr. Boehner, who is open to a more expansive military campaign to destroy the Islamic State, thinks lawmakers should take up the issue after the new Congress convenes in January. At that time, he said, President Obama should come forward with a proposal for consideration.

Greg Sargent noted in response, “You have to love the idea that this is too ‘weighty’ a decision to make during the lame duck session, but not ‘weighty’ enough to vote on before the escalation actually launched, let alone before an election in which voters deserve to know where lawmakers stand on a matter of such great consequence.”

Indeed, it’s difficult to think of a defense for Boehner’s new posture.

Not to put too fine a point on this, but Americans elect members to specific terms, during which they’re expected to meet their obligations. The key word in “lame-duck session” is “session” – these elected federal lawmakers have jobs to do, and the fact that they’re nearing the end of their term doesn’t negate the fact that there’s important work to do.

Boehner makes it sound as if Congress is high school, and everyone can just coast for the last couple of weeks after final exams. That’s crazy – the United States is engaged in combat operations and the people’s elected representatives aren’t supposed to just take a pass on the crisis for the sake of convenience.

As for the notion that the White House “should come forward with a proposal,” I’d remind the Speaker that Congress is a co-equal branch of government. Waiting for the executive branch to write a draft resolution for the legislative branch isn’t a requirement – but Congress approving wars is.

As we talked about yesterday, Americans can take every Republican anti-Obama argument of late – about separation of powers, about co-equal branches of government, about the importance of institutional checks and balances – and throw them right out the window, confident in the knowledge that the GOP didn’t mean a word of it. For all the chatter about the president being an out-of-control, lawless tyrant, here’s an instance in which Obama really is acting without any congressional authority, only to find congressional leaders saying, “No big deal. We’ll think about doing something in a few months, maybe.”

Fair-minded observers can debate the propriety of the president’s actions, but for over two centuries, presidents have gone as far as Congress will let them. Especially in times of war, every Commander in Chief has sought as much power and authority as he can muster.

It’s up to Congress – filled with members who spent the summer complaining about Obama golfing instead of working – to meet its responsibilities. This Congress isn’t even going through the motions. Lawmakers aren’t even keeping up appearances. They’re not even trying.

I thought this Congress couldn’t get any worse. I stand corrected.


By: Steve Benen, The Maddow Blog, September 25, 2014

September 26, 2014 Posted by | Congress, Constitution, John Boehner | , , , , , , | Leave a comment

“Boehner’s Constitution Of Convenience”: Sermonizing Politicians Cannot Meet Even Their Most Rudimentary Responsibilities

People who live in glass houses shouldn’t throw stones. Especially when your glass house is the House of Representatives. Speaker of the House John Boehner made headlines last month, when he launched a misguided lawsuit against President Obama for ostensibly violating “his constitutional authority.” Yet if anybody is treading on the Constitution, it is Boehner himself. Speaker Boehner and his conservative caucus have shown a blatant disregard for the Constitution’s Sixth Amendment, which guarantees criminal defendants “the assistance of counsel.” In the process, they have failed to meet their basic constitutional responsibilities.

Boehner is cynically using the very process he refuses to fund for others less fortunate. In announcing his decision to sue the President, Boehner made the anodyne observation that “the legislative branch has an obligation to defend the rights and responsibilities of the American people.” These rights include those contained in the Sixth Amendment, which specifies the procedures of criminal prosecution. Notably, the Amendment protects the fundamental rights of criminal defendants to a speedy trial and to be represented by legal counsel.

Congressional Republicans’ extreme budget cuts threaten the core of the Sixth Amendment. Since 2010, Congress slashed hundreds of millions of dollars from the federal judiciary and federal public defense programs. Simultaneously, Congressional Republicans allowed states to enact draconian cuts to public defense. From Michigan to Mississippi, state legislators balanced their budgets on the backs of poor Americans who rely on public defenders. States rights are all well and good, but states do not have the right to violate the Constitution. Despite efforts by Democrats in Congress to stop the damage, Congressional Republicans refused to increase appropriations and provide reasonable levels of funding.

The results have been catastrophic. And the victims are some of the most vulnerable people in our society: low-income Americans trapped in a biased justice system. As noted by the ACLU and other advocacy organizations, the “deep cuts to the federal public defenders’ budget” resulted in “significant layoffs, 15-20 day furloughs, and the complete elimination of defender training.” Continuing on this dangerous path, according to the advocacy coalition, would “decimate the federal defender system.” On the state level, the consequences have been equally devastating. According to the Brennan Center for Justice, many state public defenders spend as little as six minutes per case because of paltry funding. The Brennan Center also found that public defenders often juggle “more than 300 cases at one time.”

Gideon v. Wainwright (1963) and Argersinger v. Hamlin (1972) are unequivocal: the Sixth Amendment of the Constitution entitles criminal defendants to effective legal representation. Congress has the responsibility to secure this right with appropriate funding. And it is not doing so. Low-income Americans are paying a very real price for this constitutional abdication.

Tea Party Republicans frequently pontificate about the Constitution. The 112th Congress, in which John Boehner was elevated to Speaker, began with a ceremonial reading of the document “for the first time ever.” The House Republican Caucus introduced a rule in 2011 that requires all legislation to “cite its specific constitutional authority.” Republicans routinely allege that President Obama’s actions menace the Constitution. To quote Republicans in Congress, America faces a “constitutional crisis” because “King Obama” has “rewritten the Constitution for himself.” But when it is time to actually stand up for the Constitution, these sermonizing politicians cannot meet even their most rudimentary responsibilities. America doesn’t need politicians who lecture about the Constitution; we need politicians who follow it.

Conservative Republicans don’t stop at undermining public defense. They also embrace extreme cuts to civil legal assistance. While not protected by the Sixth Amendment, civil legal aid is a vital component of the safety net. Every year, it helps 1.8 million low income Americans facing everything from domestic violence to foreclosure. Like criminal legal aid, it is also egregiously underfunded. Almost every House Republican supported a 2011 plan to chop nearly 20% from the annual appropriation of the Legal Services Corporation (LSC), the nation’s primary provider of civil legal aid. For some Republicans, these severe cut to LSC did not go far enough. 170 Republicans, or 70% of the Congressional Republican Caucus, subsequently voted to eliminate all funding for the LSC.

Fortunately, the Obama Administration and Congressional Democrats have successfully blocked the most radical reductions in public defense. Attorney General Holder and Solicitor General Verrilli have been tireless advocate for reversing the cuts and establishing an equitable judicial system.

Ironically, Speaker Boehner resorted to the American justice system to sue President Obama, the very system he has worked relentlessly to underfund for indigents. Instead of suing Obama, he should start fixing the system he and his colleagues broke.


By: Duncan Hosie, The Huffington Post Blog, August 26, 2014

September 2, 2014 Posted by | Constitution, House Republicans, John Boehner | , , , , , , | Leave a comment

“The True Bounds Of Executive Authority”: The Possession Of Great Power Necessarily Implies Great Responsibility

With Congress mired in gridlock, President Obama has vowed to use “a pen and a phone” to accomplish some of his policy goals. Last week, he doubled down by promising to act on one of the nation’s most divisive and important issues — immigration — before the rapidly approaching end of summer. Such executive action has outraged his political foes. To be sure, any ambitious path of executive action must be conducted in a manner consistent with the law and the appropriate role of coordinate branches. But should we snap to attention when we hear hyperventilating about his supposed abuse of power? At least so far, hardly.

All presidents have significant power to advance policy goals through executive action. That power is limited by the Constitution, above all else. The Supreme Court has made it clear that when Congress has not acted, and no federal law blocks it, the president has considerable leeway to act. Through the years, presidents of both parties have used the tools at hand. Ronald Reagan reined in regulatory agencies. Bill Clinton declared major swaths of land off limits for development, and cracked down on tobacco. George W. Bush made major moves to limit stem cell research. And presidents (including this one) have used, and often abused, executive authority when it comes to national security, often moving in secret.

Where does President Obama stack up in this hall of presidents? In fact, so far, he has not been especially more aggressive than his predecessors. He issued executive orders at a slower pace than any president since Grover Cleveland. Quantity is not quality, but the orders he has issued have not been particularly bold — no seizing steel mills (as Harry Truman did) or sending the National Guard to Little Rock (as Dwight Eisenhower did). One unilateral power clearly given to the president by the Constitution is the pardon power. Here, too, Obama has issued fewer pardons and grants of clemency to prisoners serving unjust sentences than most presidents.

This has not stopped his political opponents from screaming that he is abusing his power. The House of Representatives recently voted to sue him for one act of supposed overreaching: delays in implementing the employer mandate and other parts of the Affordable Care Act. Set aside the weirdness of such a claim (this is the same House that wants to repeal the same law). Once a bill is passed by Congress, the executive branch has the authority to execute it. Realistically, putting complex statutes such as the ACA into place will have bumps in the road. In this case, it turned out that the ACA could not be accomplished as quickly as hoped — in part because several states refused to cooperate. But presidents have delayed implementation of laws in the past without arousing ire. George W. Bush used his executive authority in 2004 to waive penalty fees for seniors who signed up late for Medicare Part D, another contentious health care law.

Will the president’s use of executive power to advance his goals on immigration reform be constitutional? Depends. No president has authority to do a complete immigration overhaul by fiat. And we don’t fully know what is contemplated, which must of course meet the test of legality. But this president, as any president, has ample room for action. He has asked for a set of formal recommendations from Homeland Security Secretary Jeh Johnson, and has looked at expanding the Deferred Action for Childhood Arrivals (DACA) program to allow for deferred deportations, at the discretion of federal prosecutors. It makes perfect sense for the president to use his finite resources in a way that is fiscally responsible and protects the public interest. Indeed, he has already done so on a smaller scale two years ago when he created DACA to ceased deportation of young immigrants who met certain criteria.

The government cannot deport everyone; it simply doesn’t have the capacity. Prioritizing deporting violent criminals is hardly earth-shattering, or Constitution-shattering. Law enforcement and prosecutors exercise discretion all the time in determining which cases to investigate and prosecute. In the real world of an “under-resourced” system, choosing how to allocate the resources that Congress does give him is clearly within the president’s purview.

Our government functions on a system of checks and balances. It’s true that the Constitution grants Congress more powers than the president. But, as William Lamb, 2nd Viscount Melbourne, said during a debate in Parliament in 1817, “the possession of great power necessarily implies great responsibility” (150 years later, Spider-Man agreed). A paralyzed Congress has abdicated its responsibility and spurred the president to act. President Obama is simply is doing what he must do to keep the United States running.


By: Inimai Chettiar, Director, Justice Program, Brennan Center for Justice at NYU Law; The Hufington Post Blog, August 29, 2014


August 30, 2014 Posted by | Congress, Constitution, Executive Orders | , , , , , , , | Leave a comment

“The Right To Peaceably Assemble”: Antonio French Said It Best, ‘Our Civil Rights Don’t Stop At 9PM’

When Antonio French, the St. Louis Alderman who has given us an incredible first-hand account of what is happening in Ferguson through his twitter feed, was released from jail this morning, he told the media, “Our civil rights don’t stop at 9PM.” After Antonio being arrested last night for “unlawful assembly,” I felt compelled to share these thoughts;

To the men and women who are responsible for firing tear gas canisters. To the ones who pull the trigger of the guns that shoot rubber bullets. To those who are the drivers of armored vehicles. To the operators of the machine that makes loud noises. To those arresting politicians and members of the press. To SWAT Teams. Tactical Teams. Riot Police. Mayors. Police Chiefs. City Council Members. State Assembly Men and Women. State Senators. Governors. And More. I urge you to re-read the United States Constitution. Specifically the First Amendment. In case you weren’t given that at your training or your elementary school education, here is how it reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Our forefathers, hundreds of years ago, decided to write this amendment and place it at the top of the Bill of Rights. They made a decision that this amendment, the First Amendment, would be the most important amendment to the foundation of our nation’s principles. Throughout history, we have fought wars, carried out secret missions, economically embargoed other countries to protect the rights of citizens around the world to enjoy the same basic freedoms we have here in America. Now, we are blatantly ignoring those rights of our very own.

Over the past five days in Ferguson, Missouri, after the tragic killing of unarmed teenager, Mike Brown, the police and local government have shown a lack of understanding of this protection. Your job is to PROTECT those who have grievances with our government. To give them space to protest and petition their local elected leaders. The only thing you have been good at protecting thus far is the name of the officer who leveled bullets into Mike Brown’s body (but anonymous may have beat you at that too).

An overwhelming majority of the protesters in Ferguson have been peaceful. Yes, they are angry. Yes, they are pissed off. Yes, they are frustrated. But, they have been peaceful. Of course I recognize that there have been a few who have not. A few who looted, burned and threatened violence. And I would never, ever condone that behavior. But, to all those who have been gathering at the police station everyday, and to all those who have been at the QT from dawn to dawn, why antagonize them? Why shoot upon them? Why tear gas them? Why arrest them?

To the public officials of Ferguson, it is your job to listen to those who ELECTED you. And many of those who put you in office are now protesting outside the buildings that hold your power. If you continue to attempt to silence their protest, their anger will only grow and this could get even worse. The demands of the protesters are simple. Read them. Yet, the demands of this nation are even simpler. Respect the First Amendment. The Constitution is open 24 hours a day, seven days a week. It never takes a holiday or vacation. It never takes a day off. Unless you order a curfew or invoke martial law, the citizens of Ferguson have every right to peaceably assemble and to petition the Government for a redress of grievances at ANY hour of the day.

As for us, we will continue to show our solidarity with the fight for justice for another unarmed, black teenager killed in America. Our prayers are constantly with the family and friends of Mike Brown, and our hearts are with those keeping their hands up and telling the police officers not to shoot.


By: Michael Skolnik, Editor-In-Chief of; The Huffington Post Blog, August 14, 2014

August 15, 2014 Posted by | Bill of Rights, Constitution, Ferguson Missouri | , , , , , | Leave a comment

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