“In Need Of A Constitutional Rationale”: Supreme Court Judicial Activism At Its Worst, Because They Felt Like It
There’s something about the Supreme Court’s ruling in Shelby that’s bothered me all day. It’s probably unimportant — Jonathan Adler, feel free to jump in and set me straight — but as I read the ruling (pdf) this morning, I was looking for something specific: why the court majority considers Sec. 4 of the Voting Rights Act unconstitutional.
I’m not an attorney, so I’ll concede my background is limited, but in the rulings I’ve read striking down federal laws, there’s some kind of explanation as to the part of the Constitution the law ostensibly contradicts. A statute violates the First Amendment, or the Commerce Clause, or the Due Process clause, etc., and is therefore unlawful.
So on what grounds, exactly, did the court find Sec. 4 of the VRA unconstitutional? I have no idea.
Assuming I’d missed something important, I asked the Constitutional Accountability Center’s David Gans to help me out. He told me:
“Your question highlights a fundamental flaw in Chief Justice Roberts’ majority opinion in Shelby County v. Holder. The Court strikes down a core provision of the Voting Rights Act as unconstitutional without ever explaining what provision of the Constitution commands this result. Chief Justice Roberts’ opinion for the conservative majority argued that the Voting Rights Act provision was inconsistent with the ‘letter and spirit of the Constitution,’ but he never really explained why.
“His majority opinion emphasized that the Voting Rights Act diminished the sovereignty of states, ignoring that Fifteenth Amendment expressly gives to Congress broad power to prevent all forms of racial discrimination in voting by the states. As Justice Ginsburg’s powerful dissent demonstrates, the Court’s opinion cannot be squared with the text, history, and meaning of the Fifteenth Amendment.”
Judicial restraint is often a rather amorphous concept, which sometimes means different things to different people. But in this case we have a piece of civil-rights legislation that was approved by the people’s representatives, and then re-approved with large majorities several times. It was signed into law by an elected president, and then reauthorized to great fanfare by subsequent presidents of both parties. It’s been subjected to judicial scrutiny over the course of several decades, and a judicial precedent has been set: the Voting Rights Act is legal.
Or put another way, when federal law is endorsed by the House, the Senate, the president, and the public, and it’s consistent with decades of Supreme Court precedent, a court majority probably ought to have a very good reason for tossing all of that aside.
But in Shelby, five conservative justices gutted the Voting Rights Act anyway, deeming it inconsistent with the Constitution because, well, they said so. These jurists said the same law used to be perfectly constitutional, but somehow morphed into being unconstitutional without anyone noticing, and without violating anything specific in the Constitution itself.
I’d argue this is the opposite of restraint; it’s activism. The justices decided to substitute their judgment for the people’s and their elected lawmakers, because they felt like it.
By: Steve Benen, The Maddow Blog, June 25, 2013
“Protection Of Minority Voting Rights Is A Thing Of The Past”: SCOTUS Voting Rights Decision Hurls Nation Back To Its Tragic Past
In a 5-4 decision along the ideological lines one might expect, the Supreme Court today cut out the heart and soul of the Voting Rights Act of 1965.
While preserving the purpose and the intent of the momentous civil rights law—as set forth in Section 2 of the Voting Rights Act (“VRA”) which proclaims that no American can be denied the right to vote based on their race or gender—the Court struck down the sole method of enforcing the intent of the law. They accomplished this by declaring Section 4 of the Act, which sets forth the formula for determining which state and local governments must seek federal approval of any and all changes to their voting laws before placing the same into effect, to be unconstitutional.
Writing for the majority, Chief Justice Roberts stated,
“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics,” Chief Justice John G. Roberts Jr. wrote for the majority. “Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”
In other words, it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional.
The logic of the majority represents a tragic irony given that the ruling comes at a time when minority voting rights are, once again, under severe attack as state governments under GOP control seek to rig the game in an effort to overcome the demographic and racial shifts in the electorate. These changes dramatically improve the opportunities for Democrats to gain elected office—particularly when it comes to the presidency.
Indeed, it was the Voting Rights Act that was at the heart of successful efforts to stop states attempting to cut back on early voting hours and instituting voter identification laws that would have dramatically affected minority voter turnout during the 2012 election. Now, the opportunity to rely on the law to stop future efforts to curtail minority voting will have vanished in a 5-4 decision.
Not all that many years ago, I might have seen the logic in the majority’s opinion.
A review of registration and voting data in the state and local governments that have been—up until today—required to gain federal approval of their voting and registration laws before placing them into effect, revealed that major steps forward had taken place as a result of the 1965 law. Still, Congress saw fit to continue the formula set forth in Section 4 of the VRA when they renewed the law in 2006 without making changes to which states and local governments are affected—a Congressional decision that rests at the very heart of the Supreme Court majority’s displeasure.
The Court had previously warned Congress of what might come if they failed to make adjustments to the law based on recognizing the advancements made in states still subject to federal oversight. In 2009, the Supreme Court considered the constitutionality of the 2006 extension of the Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder. In that case, the Court avoiding ruling on the central issue—the constitutionality of all or part of the VRA. However, the majority went out of their way to highlight their concern that Congress was relying on old data collected in 1974 when calculating which state and local governments would continue to be subject to federal approval of local voter laws.
Congress never got around to reviewing the law, based on the Supreme Court’s admonition, leading to today’s regressive decision.
At the time of the Municipal Utility decision, I saw some value in the Court’s approach. While it remained—and remains—essential that the VRA continue in full force and effect to protect the voting rights of all Americans, it made sense that data constantly be reviewed by Congress so as to grant more sovereign authority to states and local governments who may now adequately protect voting rights. But it remains equally as important that the federal government hold onto the opportunity to clamp down on these governmental units should they return to old habits.
But then came the efforts over the past few election cycles to suppress the vote of minorities in various states throughout the nation. In each instance, the drive to limit access to the polls came in states where the government was fully under the control of Republicans looking to improve the chances of electoral victory in the 2012 presidential election.
We all recall what happened in states like Florida, Pennsylvania and Ohio where difficult and unreasonable voter ID laws, or dramatically shortened early voting hours and other voting opportunities were suddenly legislated into existence.
The State of Texas—a state subject to the requirements of Section 4 of the Voting Rights Act—has now produced the most restrictive voter ID law in the country but has been unable to implement the law as the Feds have yet to approve it. The same is the case in Virginia where an onerous voter ID law has been signed by the Governor but held up pending federal approval as they too are subject to the enforcement provisions of the VRA.
Federal protections of minorities in these states are now a thing of the past. Indeed, the state of Texas has already announced that, based on today’s Supreme Court ruling, they no longer have to wait for federal approval of their voter ID law and that the law will go into effect immediately.
Seeing this happen makes it all too clear that many of these states have not changed their ways since the day President Lyndon Johnson signed the Voting Rights Act into law and that the only thing that has protected minorities in these states during the years following 1965 has been the very part of the Voting Rights Act that has now been invalidated.
The Supreme Court got it wrong. By not recognizing that the success of the Voting Rights Act enforcement provisions was based on the existence of the enforcement provisions, the Court has condemned the nation to relive some of the worst days and inequities in our history.
While today’s decision does leave the door open for Congress to take on the issue and re-craft Section 4 with an eye to current data, does anyone actually believe that this will happen with the GOP in control of the House of Representatives?
Not likely—or at least not likely until we have a federal government fully back in the hands of the Democratic Party.
For anyone out there who believes that midterm elections are not particularly exciting or worth your time, the stakes of the 2014 midterms just increased dramatically. The nation took a giant step backwards today—a misstep that can only be corrected by the return of the House of Representatives to Democratic control and retaining the Democratic majority in the Senate. As a result, while today’s Supreme Court decision makes this a very sad day in the advancement of the nation, it may be just the kick in the pants Americans require to get out of the house and down to the voting booth in November, 2014.
Let’s hope so.
A lot of Americans suffered a great deal—some making the ultimate sacrifice—to make the Voting Rights Act of 1965 a reality.
We should not let them down now.
By: Rick Ungar, Op-Ed Contributor, Forbes, June 25, 2013
“Taking A Trip To Boehnerland”: John Boehner Takes His Relationship With DC’s Lobbying Industry Quite Seriously
When we think about the sphere of influence for the Speaker of the House, we would ordinarily think first of the House majority caucus. After all, that would make sense — John Boehner should have power on the Hill, where he leads over 200 federal lawmakers who chose to put a gavel in his hands and put behind only the Vice President in the presidential line of succession.
But in practice, Boehner’s sphere of influence is fairly limited in the chamber he ostensibly leads. His operation is far more impressive about a mile and a half away from the Capitol, in the city’s lobbying corridor.
A top aide to Speaker John Boehner (R-Ohio) is leaving his post to run the Washington office of American Express, becoming the third-high ranking staffer to depart the office in recent months.
Brett Loper, one of Boehner’s key conduits to the White House during the doomed “fiscal cliff” negotiations of 2012, is returning to K Street after a brief stint in the Speaker’s office where he most recently served as deputy chief of staff.
The Speaker’s chief of staff, Barry Jackson, left in Feburary to work at two separate firms — Brownstein Hyatt Farber Schreck, a lobby shop, and Lindsey Group, an economic advisory firm. Earlier in February, Boehner’s health adviser, Emily Porter, left to become a vice president at the lobbying firm Nickles Group.
As these departures mount, it’s only natural to wonder if the Speaker’s career is in in decline, and there are rumors that Boehner, frustrated by his complete inability to govern, may retire in the near future. The resignations will only further fuel the speculation.
But there is another explanation — there’s long been a revolving door in Boehner’s office, with aides (a) leaving his staff to become lobbyists; (b) leaving lobbying to join his staff; or (c) occasionally making more than one trip in each direction.
Indeed, in a statement thanking Loper for his service, the Speaker said the staffer will be missed throughout Boehnerland, our Conference, and the entire House.”
This may sound like an odd choice of words, but for a significant group of people, “Boehnerland” is an actual thing.
Long-time readers may recall that this has been an ongoing area of interest for me, dating back to 2010 when I first learned what “Boehnerland” is.
He maintains especially tight ties with a circle of lobbyists and former aides representing some of the nation’s biggest businesses, including Goldman Sachs, Google, Citigroup, R. J. Reynolds, MillerCoors and UPS.
They have contributed hundreds of thousands of dollars to his campaigns, provided him with rides on their corporate jets, socialized with him at luxury golf resorts and waterfront bashes and are now leading fund-raising efforts for his Boehner for Speaker campaign, which is soliciting checks of up to $37,800 each, the maximum allowed.
Some of the lobbyists readily acknowledge routinely seeking his office’s help — calling the congressman and his aides as often as several times a week — to advance their agenda in Washington. And in many cases, Mr. Boehner has helped them out.
Of course he has; many of these lobbyists worked in his office.
While many lawmakers in each party have networks of donors, lobbyists and former aides who now represent corporate interests, Mr. Boehner’s ties seem especially deep. His clique of friends and current and former staff members even has a nickname on Capitol Hill, Boehner Land. The members of this inner circle said their association with Mr. Boehner translates into open access to him and his staff.
It’s probably worth emphasizing that all of this is legal and permissible under congressional ethics rules. The point isn’t that Boehner is guilty of anything untoward; rather, the point is Boehner takes his relationship with DC’s lobbying industry quite seriously.
And as we talked about last fall, this relationship manifests itself in ways that reinforce its value. When Congress worked on a jobs bill in 2010, Boehner and his team huddled with corporate lobbyists. When work on Wall Street reform got underway, Boehner and the GOP huddled with industry lobbyists. When Congress worked on health care reform, Boehner and the GOP huddled with insurance lobbyists. When an energy/climate bill started advancing, the GOP huddled with energy lobbyists. In 2012, when the STOCK Act was being considered, the GOP huddled with financial industry lobbyists.
This is just Boehner’s m.o. And as more staffers depart the Speaker’s office for more lobbying gigs, the population of Boehnerland just keeps growing.
By: Steve Benen, The Maddow Blog, June 24, 2013
“Obamacare Is For Republicans, Too”: If GOP Governors Think Stonewalling Health Exchanges Hurts Only Democrats, They’re Wrong
Three months from now, Americans will get their first look at whether Obamacare works. The answer will depend a lot on Republican governors and legislatures — and they should want the law’s exchanges to be successful as much as the president does.
The new state insurance exchanges are supposed to start selling health coverage Oct. 1. The idea behind these marketplaces is that allowing apple-to-apple comparisons between health plans will foster competition and lower prices. Most Republican governors and legislatures, however, have resisted running their own exchanges; 19 states have refused to play any role whatsoever.
Continued resistance could hamper an already fraught process. In a report this week, the U.S. Government Accountability Office warned that the federal government is behind schedule in building exchanges in states that have refused to do so. This makes it even more crucial that all states pitch in to help.
Why should Republican opponents of the exchanges change tack now? First, there are the crass politics: Many residents who stand to benefit are their constituents. Federal exchange subsidies are available for people earning between 138 percent and 400 percent of the poverty level, or $32,500 to $94,200 for a family of four. According to 2012 exit polls, 42 percent of people with family incomes between $30,000 and $50,000 voted for Mitt Romney; for those earning between $50,000 and $100,000, the share was 52 percent. If Republican governors think stonewalling exchanges hurts only Democrats, they’re wrong.
Then there are the economic reasons: States with weak exchanges could become less attractive to businesses. John Hickenlooper, the Democratic governor of Colorado, said this week that his state supports its insurance exchange in part to help small businesses, which want healthy and productive workers.
Finally, and most compellingly, there is the human reason – – rather, 25 million human reasons. Well-run exchanges will make getting health insurance easier and more affordable. Even philosophical opponents of the Patient Protection and Affordable Care Act must concede this practical point. Obamacare also happens to be the law of the land.
Some Republican governors have already accepted a role in their exchanges. Iowa and Michigan are partnering with the federal government, while Idaho, Nevada and New Mexico agreed to build their own. It’s too late for other states to follow those courses, but there are still meaningful steps they could take.
One thing they can do is smooth the path for “navigators” – – people or organizations that will help others shop for insurance on the exchanges. Florida requires navigators to register with the state, and Pennsylvania is considering a similar move. This should be fine as long as registration is quick and straightforward.
States should also build solid lines of communication between the exchanges and state-run programs, especially Medicaid. Exchanges can use the information that states keep about people’s income and insurance status to determine whether they’re eligible for subsidies. Easy access to Medicaid databases will mean fewer errors and faster service for people in both programs.
State insurance regulators, who have the authority to approve insurance plans sold on federally run exchanges, can do their part by monitoring the participating insurance plans aggressively enough to keep rates down.
Perhaps the single biggest thing Republican officials could do is simply be ready and willing to address the inevitable hiccups. If states look for ways to stall progress, they’ll find them. Conversely, if governors who oppose the law nonetheless direct their officials to cooperate, the exchanges are more likely to survive those hiccups.
Governors could set a positive tone by reminding their residents that the exchanges are coming. Instead of saying the exchanges “are not going to work,” as Texas Governor Rick Perry did in December, they should encourage their constituents to see whether they’re eligible for subsidies. It doesn’t need to cost the states anything.
By: The Editors, Bloomberg, June 20, 2013
“The Eric Cantor Story”: Waste, Fraud, And Abuse
The farm bill was defeated in part because they got fewer yea votes out of Democrats than they were hoping for. This happened, according to moderate Democrat Collin Peterson of Minnesota, because of a last-second amendment from Eric Cantor that sought to impose sterner work requirements on recipients of food stamps. Democratic whip Steny Hoyer says it took a bipartisan bill and turned it into a partisan bill.
This was just a cat-piss mean amendment that you have to think was almost designed to push Democrats away. Fraud in the food-stamp program (known by the acronym SNAP) is a frightening 1 percent, according to Think Progress. And existing work requirements are pretty stringent already. If you live in Cantor’s Virginia and want food stamps, here’s what you have to do, according to the state’s web site:
If you are age 18 to 50 and able to work, you may be subject to a work requirement in order to receive SNAP. This requirement would limit the number of months for which you could receive SNAP to three months in a 36 month period. After you receive SNAP for three months, you may be able to receive three additional months if you complete certain work related requirements. You may be exempt from this work requirement if you are currently working or participating in an approved work program; responsible for the care of a child; pregnant; medically certified as unable to work; meet one of several work registration exemption reasons; or live in an exempt locality.
I can’t find what these “certain work requirements” are, but it seems to me that having to re-meet them every three months provides a pretty constant check on people and meets a high standard of being responsible with the taxpayers’ money.
It’s just amazing to me the way they keep finding new ways to kick poor people. One, deregulate everything so that banks can start placing bets against their own securities. Two, destroy the economy, so that millions more people lose their jobs and have to go on food stamps in the first place. Three, decide that poor people have to pay the penalty for all this financial hanky-panky, and cut the federal programs they depend on to the bone. Four, cut food stamps even more, and make the recipients work more.
“Waste, fraud, and abuse” describe Eric Cantor’s contribution to this nation, his character, and his attitude toward people who aren’t rich.
By: Michael Tomasky, The Daily Beast, June 21, 2013
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