Citing the “potential threat of communicable diseases,” the city council in League City, Texas, voted last week to ban undocumented children from entering the Houston suburb. In Murrieta, California, Mayor Alan Long claimed that the government was placing “ill and contagious” kids in its midst. Even national politicians who should know better—namely, House Republicans—are spreading lies and paranoia. Phil Gingrey, in a letter to the Center for Disease Control and Prevention, wrote that “deadly diseases” threaten “Americans who are not vaccinated—and especially young children and the elderly.” And Randy Weber said, “We’re thinking these are diseases that we have eradicated in our country and our population isn’t ready for this, so for this to break out to be a pandemic would be unbelievable.”
There’s a legitimate policy debate to have over the border crisis, but it must begin with the facts. Doctors have debunked claims of diseased-ridden children: The migrants tend to be middle class with updated vaccines. By engaging in this right-wing fear-mongering, the aforementioned elected officials—and many others—are earning their ignominious place in a long, ugly history in American nativism that demonizes immigrants under the guise of public-health concerns.
With each wave of immigration, nativists have made public-health excuses for keeping out migrants. In the 1830s, cholera was described as an “Irish disease,” and in the late 1800s Tuberculosis was portrayed as a “Jewish disease.” In 1891, Congress banned any immigrant “suffering from a loathsome or dangerous contagious disease.” Even at Ellis Island, a site we celebrate as America’s front door for the “tired and weary,” medical inspections were a weapon aimed at immigrants who traveled on second and third class and were commonly used to quarantine and turn back unwanted immigrants.
Public-health nativism was also used to justify violence against immigrants. After a Chinese immigrant died of the bubonic plague in 1900, San Franciscans quarantined Chinatown and threatened to burn it down. Mayor James Phelan said that Chinese immigrants were “a constant menace to the public health.” Later, he ran for the Senate under a pledge to “Keep California White.”
More than a century later, the overt racism is gone but the underlying sentiment is the same. The ugly rhetoric we’ve seen over the past few weeks didn’t emerge out of thin air. In 2005, Lou Dobbs’s CNN show falsely reported that there had been 7,000 leprosy cases over the previous three years—one of immigration’s “deadly imports,” he said. The following year, Pat Buchanan claimed that “clearly the illegal aliens” were to blame for the rise in bedbug infestations. And so on.
Time and again, the public health opposition to immigration has been exposed as nothing more than a socially accepted form of xenophobia. That’s true again today. Ignoring the expertise of public-health officials, congressional Republicans and other conservatives continue to invent their own “facts” to prop up, once again, the idea that our country is pure and that foreigners who are trying to enter it are impure. The real disease here, though, is what Democratic Congressman Luis Guitterez called the right’s “demonization” of these desperate children.
By: Samuel Kleiner, a Fellow at the Yale Law and Information Society Project; The New Republic, July 15, 2014
July 16, 2014
Posted by raemd95 |
Border Crisis, House Republicans, Immigrants, Public Health | Alan Long, American Nativism, Communicable Diseases, Conservatives, Luis Guitterez, Phil Gingrey |
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People seem mystified by Dick Cheney. What on earth is he doing, popping up with such regularity defending a wholly discredited position, as he did again Monday at a Politico forum? Why would he continue to say things like invading Iraq was “absolutely the right thing to do”? The track record of utterances he compiled as vice president—all of them collected on video for our present-day delectation, like his famous “weeks rather than months” prediction to CBS’s Bob Schieffer right before we started the Iraq war—would have a person of decency and modesty hiding in self-imposed exile in the Pampean Andes.
I contend that there’s nothing mysterious about him at all. Incredible as it may seem, he does still think he was right. The tactical mistakes, if there were any, were mere details. But the invasion of Iraq was the right thing to do, he still undoubtedly believes. And it’s important that we understand the real reason he thinks it was the right thing to do, because Iraq failure or no Iraq failure, Rand Paul or no Rand Paul, Cheney’s view will always be dominant in the Republican Party’s higher echelons.
There were always a lot of misperceptions about the Iraq war, in the mainstream media and among liberal opponents of it. Oversimplifying a bit, the media bought that it was about 9/11; that we had to strike back. It was also, in this narrative, about Saddam Hussein’s alleged weapons of mass destruction and his even more alleged nuclear capabilities. These were the reasons the Bush administration put forward to scare the public, and the media, to their everlasting dishonor, bought those arguments.
On the broad left, people tended toward the fundamental explanations of political economy: that it was about oil, or Halliburton, or, in Michael Moore’s interpretation, the Carlyle Group. Oil was a factor, a side benefit. But it wasn’t about oil, and it certainly wasn’t about Halliburton or Carlyle.
It was about establishing global American hegemony. To get this fully you have to go back to 1992, when Cheney was the secretary of defense. Cheney’s world view was wholly formed by the Cold War. The bipolar world of U.S. v. USSR, good v. evil, was all he’d known. It was the rubric under which all thought was organized. Then, suddenly, the USSR was gone! Now what?
Cheney’s Pentagon—including figures such as Paul Wolfowitz and even Colin Powell, who may be a good guy now but was fully implicated in all this at the time—set to pondering that question, and by the spring of 1992, it came up with an answer: The Defense Planning Guidance (DPG), a white paper outlining future U.S. defense policy. Now that we were the only superpower in the world, it said, our main job was to make damn sure things stayed that way. This would require a certain new tough-mindedness. We might have to thumb our noses at traditional allies. We certainly would have to expand our global reach. And the DPG introduced, for the first time ever in American history, the idea that preemptive war should be an official part of our policy. (Yes, it’s been unofficial policy plenty of times, but this was different.)
The DPG was enormously controversial at the time. Amid some media tumult, the first President Bush had to come out and say in essence, hey, kidding. But Cheney & Co. certainly weren’t. (For a lot more on this history, read the great Harper’s magazine piece by David Armstrong from 2002, “Dick Cheney’s Song of America,” still one of the finest pieces of Iraq war journalism we have.)
The Republicans lost the White House in 1992, of course, and were out of power for eight years. So they didn’t have a chance to act on their scheme. But then they got back in. And then came 9/11. Lo and behold! What a gift! Of course I’m not saying they were happy it happened, but imagine: If ever there were an event that could frighten the American people into embracing an aggressive foreign-policy posture that set out to establish the United States as the single global hegemon, 9/11 surely was it. It still didn’t frighten the people enough, quite, which is why the Bushies had to lie about WMD and nukes and “weeks rather than months,” but the hegemonists knew that this was their only shot to act on those 1992 schemes, and bam, they took it.
That’s why we went to war in Iraq. (We chose Iraq because of the “unfinished work” of the Gulf War, because it looked ripe for the taking, and because it was a medium-size dog whose quick whipping would scare the larger ones.) It wasn’t about terrorism or anything like that. It was about, as James Bond once sighed to Dr. No, “world domination, the same old story.”
It’s important to understand that history today because the dream of establishing global American hegemony is much more enduring and powerful on the right than all the stated reasons. Al Qaeda has receded; terrorism too; WMD was just a handy thing lying around. But the idea that the United States must maintain its hegemonic status in a unipolar world—on the right, that has staying power. And modern conservatism is organized in such a way that thousands of people are paid millions of dollars to make sure the staying power stays.
The Tea Party base, as we know, is less than enamored of these ideas. Sen. Paul articulates their views. So the feud between Paul and Cheney—and John McCain and others—is really a feud between the base and the elites. Paul is a savvy politician, and I certainly don’t count him out as the possible 2016 nominee, but we all know that in both parties, especially the GOP, the elites usually win such feuds. So Cheney will keep at it as long as he draws breath. And someday, something awful will happen, and the Cheney wing will step up to the plate and swing for the fences again.
By: Michael Tomasky, The Daily Beast, July 15, 2014
July 16, 2014
Posted by raemd95 |
Dick Cheney, Iraq War, Neo-Cons | Cold War, Conservatives, Defense Planning Guidance, Foreign Policy, Republicans, Right Wing, Tea-party, WMD's |
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Serious lawsuits start with some specific legal grievance – a claim that someone was injured by a defective product, say, or that a search was unreasonable under the Fourth Amendment – and proceed from there. US House speaker John Boehner wants to sue the President of the United States – for no particular reason other than his alleged lawlessness – and fill in the details later.
The lawsuit, which a House committee will take up rather seriously on Wednesday, is a frivolous stunt that not only has no chance of succeeding but isn’t even intended to succeed. The belated choice of targets does provide a useful illustration of Republican priorities, though: most notably, registering more outrage at the Affordable Care Act and further attempting to legitimize various fake scandals wafting up from the conservative fever swamp.
Some of the GOP attacks on the Obama administration have had real substantive effects. This suit, however, is analogous to the endless House votes to repeal Obamacare – an impotent symbolic gesture by Republicans frustrated they were unable to deny access to health coverage to tens of millions of American citizens.
By speaking first in general terms about Obama’s alleged failure to “faithfully execute the laws” in favor of usurping the will of Congress, plus the president’s failure to do enough bombing of random foreign countries, Boehner allowed the Tea Party’s insatiable skree machine to fill in its own gibberish legalese. Why focus on one potential impeachable offense when the examples can be nearly infinite? Benghazi! Fast and Furious! Executive orders!
Now that Boehner has actually announced the basis for the lawsuit – and will spend the next two weeks getting it to the floor for another meaningless Obamacare vote – it turns out to be a narrow and almost certainly irrelevant one. The suit will focus on a claim that Obama acted illegally when the administration decided to effectively delay implementation of the employer mandate in the Affordable Care Act, by declining to penalize employers who didn’t comply in 2014.
In fairness, the argument isn’t unreasonable on its own terms, but to bring a legal challenge in federal court, a plaintiff must have “standing” – Boehner and Co must show that the House of Representatives has been directly injured or otherwise directly affected. Under existing precedents, that’s nearly impossible.
And even if the federal courts were to grant standing, for a lawsuit to proceed, there has to be an ongoing controversy. Since the employer mandate will almost certainly not be delayed another year, the issue is likely to be moot before the lawsuit gets very far, which will result in its getting thrown out. The American taxpayers will have funded a no-hope legal challenge because House Republicans needed to keep their base’s 24/7 scandal-invention machine going – not because there was an actual controversy.
It’s not clear what kind of bill the coming weeks might produce. Conservative legal experts will be happy to give testimony, some of which will be reflected in the final resolution. But the details are fundamentally irrelevant. The federal courts will almost certainly deny that they have jurisdiction, Boehner will have sent politically expedient signals to his base, and the successful implementation of Obamacare will proceed exactly as it would have – as if nobody had ever sued the President of the United States at all. As for the defective product that is the Republican-controlled House, well, the only remedy for the injuries they’ve inflicted is at the ballot box in November.
By: Scott Lemieux, The Guardian, July 15, 2014
July 16, 2014
Posted by raemd95 |
House Republicans, John Boehner, Tea Party | Affordable Care Act, Conservatives, Election 2014, Employer Mandate, Executive Orders, GOP, ObamaCare |
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Glenn Beck says he has come under fierce attack from some of his fellow conservatives for a grave transgression.
His crime? He announced plans to bring food, water, teddy bears and soccer balls to at least some of the tens of thousands of Central American children who have crossed the border into the United States.
“Through no fault of their own, they are caught in political crossfire,” Beck said. “Anyone, left or right, seeking political gain at the expense of these desperate, vulnerable, poor and suffering people are reprehensible.”
Beck, not averse to a certain grandiosity, let us know that “I’ve never taken a position more deadly to my career than this.” But assume he’s right — and he may well be. It’s one more sign of how the crisis at our border has brought out the very worst in our political system and a degree of plain nastiness that we should not be proud of as a nation.
Let’s stipulate: This is a difficult problem. Unless the United States is willing to open its borders to all comers — a goal of only the purest libertarians and a very few liberals — we will face agonizing choices about whom to let in and whom to turn away.
Moreover, it’s clearly true, as The Post editorialized, that “there is nothing humanitarian in tacitly encouraging tens of thousands of children to risk their lives, often at the hands of cutthroat smugglers, to enter this country illegally.”
But instead of dealing with this problem in a thoughtful way reflecting shared responsibility across party lines, President Obama’s critics quickly turned to the business of — if I may quote Beck — seeking political gain. Last week, the only issue that seemed to matter was whether Obama visited the border.
It’s not just partisan politics, either. It should bother religious people that politicians pay a lot of attention when conservative church leaders speak out against contraception and gay rights but hardly any when religious voices suggest that these children deserve empathy and care.
There are those in our clergy who could usefully consider whether they speak a lot louder when they’re talking about sexuality than when they’re preaching about love. Nonetheless, many religious leaders are condemning callousness toward these kids.
“The church cannot be silent,” the Rev. Gabriel Salguero, president of the National Latino Evangelical Coalition, wrote in Time magazine, “as angry groups of people stoking the flames of fear yell at buses filled with helpless immigrant children and women.”
And Sister Mary Ann Walsh, the media director for the U.S. Conference of Catholic Bishops, called for “a moral conscience moment” akin to the response during the civil rights era “in the welcoming of children and others escaping the violence in such countries as Guatemala, El Salvador and Honduras.”
It is said, and it’s true, that the William Wilberforce Trafficking Victims Protection Reauthorization Act that swept through Congress and was signed by President George W. Bush in December 2008 has had the unintended consequence of encouraging the Central American children to head north. To protect victims of sex trafficking, the law guaranteed an immigration hearing to unaccompanied minors, except for those from Canada and Mexico.
As the bill was making its way through Congress, members of both parties could not stop congratulating themselves for their compassion. The bill, Rep. Jeff Fortenberry (R-Neb.) said, arose from “exemplary bipartisan cooperation” and showed how big-hearted we are.
“Together, let us end the nightmare of human trafficking,” he declared, “and lead the world to see, in the poignant words of Alexis de Tocqueville, that America is great because America is good.”
Suddenly, we are far less interested in being “good” than in protecting our borders — even if those we are tring to “protect” ourselves from are the youngest of refugees.
All the pressure now is to change the Wilberforce Act so it would no longer apply to Central American children. There’s a strong logic to this. The law does create a powerful incentive for unaccompanied minors from Central America (which is not that much farther away than Mexico) to seek entry, en masse, to our country.
But there is another logic: that the anti-trafficking law really did embody a “good” instinct by holding that we should, as much as we can, treat immigrant children with special concern. Do we rush to repeal that commitment the moment it becomes inconvenient? Or should we first seek other ways to solve the problem? Yes, policymakers should be mindful of unintended consequences. But all of us should ponder the cost of politically convenient indifference.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 13, 2014
July 14, 2014
Posted by raemd95 |
Border Crisis, Immigration Reform | Central America, Clergy, Conservatives, Glenn Beck, GOP, Jeff Fortenbury, Refugees, Religious Leaders, Trafficking Victims Protection Act |
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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
July 13, 2014
Posted by raemd95 |
John Roberts, Libertarians, U. S. Supreme Court | Affordable Care Act, Anti-Regulation, Antonin Scalia, Conservatives, EPA, Progressives, Public Sector Unions, Right To Work Laws |
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