“Sustaining Their Prejudices”: The Arizona Immigration Law Is A Constitutional Nightmare
You thought the healthcare case created a storm. Well you haven’t seen anything yet. Next week the Supreme Court hears oral arguments on the constitutionality of SB 1070, the Arizona immigration law. Any case that involves race creates political fireworks.
The Arizona law is a constitutional nightmare.
One part of the law allows the police to hold people arrested indefinitely until their immigration status is verified. What it means is that American citizens who look like illegal immigrants because they have brown skin and who are suspected of a crime can be held indefinitely without trial. This part of the law violates the due process clause in the Fifth Amendment and the equal protection clause in the 14th Amendment. SB 1070 flushes fundamental American civil liberties down the toilet.
The Arizona law states that “the intent of the law is attrition through enforcement to deter the unlawful entry and presence of illegal aliens.” Well, you have a constitutional problem right there. Article I, Section 8 the Constitution clearly gives Congress, not the states the power “to establish a uniform Rule of Naturalization.”
The state says it had to act since the feds haven’t acted. There are several problems with this argument.
The reason that the founders gave Congress the power to regulate immigration is that there would be chaos if each of the 50 states did the same thing and created their own immigration policies.
For another thing, the logic of the Arizona argument is the same thing as saying that it or any other state could declare war against another country if Congress didn’t. Article 1, Section 8 not only gives Congress the power to set rules of naturalization, it also gives it the power to declare war. And why not let the states instead of Congress have the Article I power to coin money. Of course that would lead to economic disaster. I don’t know about you but I don’t have the math skills to figure out the exchange rate for financial transactions between Maryland and Virginia.
Finally, the state’s argument that the feds are not acting is just wrong. Illegal immigration has slowed steadily in the last few years. There has been a large increase in the number of Border Patrol agents stationed on the Mexican border. And the Obama administration has deported record numbers of illegal immigrants convicted of crimes. But supporters of SB 1070 just want to overlook the facts so they can sustain their prejudices.
George W. Bush and Barack Obama proposed a solution to the problem that doesn’t even violate the Constitution. These presidential proposals would intensify enforcement of immigration efforts at the Mexican border, penalize employers who hire undocumented workers, and create a path to citizenship for people in the U.S illegally. Congress failed to act on either of the proposed laws. Even though the two presidential proposals are similar, several GOP senators who supported the Bush proposal now oppose the Obama bill. Go figure.
After the court issues rules on the Arizona law in June, the justices should disperse as quickly as possible because whatever they do, there will be a lot of very unhappy people out there.
By: Brad Bannon, Washington Whispers, U. s. News and World Report, April 19, 2012
“Delusional And Verbally Violent”: Romney Backer And NRA Board Member Ted Nugent Loses His Mind
Mitt Romney begged NRA board member and aging rocker Ted Nugent for his endorsement last month, and the brash, verbally-violent sometimes Washington Times columnist even bragged about it. But over the weekend at the NRA’s annual fundraiser, Ted Nugent’s mouth ran wild and Mitt Romney has been nowhere to be found.
Ted Nugent said President Obama and Attorney General Eric Holder “don’t believe in the Constitution,” the Obama administration is “wiping its ass with the Constitution,” called the four non-conservative Supreme Court justices “evil anti-American people,” demanded the America people “chop their heads off in November,” and suggested if Obama wins re-election he might kill him.
If you want more of those kinds of evil anti-American people in the Supreme Court, then don’t get involved and let Obama take office again. Because I’ll tell you this right now: if Barack Obama becomes the president in November, again, I will either be dead or in jail by this time next year….
But if you can’t go home and get everybody in your lives to clean house in this vile, evil, America-hating administration I don’t know what you’re made of. If you can’t galvanize and promote and recruit people to vote for Mitt Romney we’re done. We’ll be a suburb of Indonesia next year….
Our president, and attorney general, our vice president, Hillary Clinton, they’re criminals, they’re criminals. And if you take that adamant ‘we the people’ defiance, remember we’re Americans because we defied the king. We didn’t negotiate and compromise with the king, we defied the emperors. We are patriots, we are bravehearts. We need to ride into that battlefield, and chop their heads off in November.
Nugent added,
We’ve got four Supreme Court justices who don’t believe in the Constitution. Does everyone here know that four of the Supreme Court justices not only determined you don’t have the right to keep and bear arms, four Supreme Court justices signed their name to a declaration that Americans have no fundamental right to self-defense.
Of course, this rhetoric is nothing in comparison to Hilary Rosen’s statement that Mitt Romney’s wife Ann “actually never worked a day in her life. She’s never really dealt with the kinds of economic issues that a majority of the women in this country are facing in terms of how do we feed our kids, how do we send them to school and how do we — why we worry about their future.”
Right?
Washington Post columnist Jonathan Capehart writes today that until Mitt Romney ”condemns the rocker, we should all assume he’s fine with that kind of talk from a surrogate. After all, if then-Sen. Barack Obama had to publicly condemn his pastor who said in a 2003 sermon ’God damn America as long as she keeps trying to act like she is God and she is supreme!’ then Romney should do the same with Nugent. That he won’t speaks ill of him and the campaign we can expect him to run in the fall.”
Media Matters today added that ”Nugent refused to back down from his recent inflammatory comments about the Obama administration in a radio interview with CNN contributor Dana Loesch on The Dana Show.”
Nugent told Loesch that “I will stand by my speech” and said that he was being attacked with the “Saul Alinsky Rules for Radicals playbook.”
Speaking at the NRA’s annual meeting Nugent accused President Obama of having a “vile, evil America-hating administration” that is “wiping its ass with the Constitution.” He went on to tell a crowd that “We need to ride into that battlefield and chop their heads off in November” and said that “If Barack Obama becomes the president in November, again, I will either be dead or in jail by this time next year.” The Secret Service is reportedly reviewing Nugent’s comments.
Nugent insisted to Loesch that his message had been “100 percent positive,” and Loesch agreed that he was being used as a “scapegoat” by the Obama administration.
Later in the interview, Nugent added more derogatory comments about Democrats. He described Democratic chair Debbie Wasserman-Schultz as a “brain-dead, soulless, heartless idiot,” and said House Minority Leader Rep. Nancy Pelosi was a “sub-human scoundrel.”
Asked about a request from the Democrats that Mitt Romney (who sought and received Nugent’s endorsement) distance himself from Nugent’s comments, Nugent claimed that “Mitt Romney knows what I’m saying is true. He puts it into words for him, I put it into words for me.”
Former Breitbart editor Dana Loesch interviewed Nugent and tweeted some of his statements, including, “I’ve never in my life threatened anyone’s life.”
We’ll let the Secret Service decide.
Obama himself and the Obama campaign were quick to denounce publicly Hilary Rosen’s comments — which, if anyone bothered to hear both sentences and not the soundbite, most Americans would have agreed with, but Mitt Romney, in his ever-cowardly, ever-flip-flopping way, won’t denounce — but won’t support, either, — Nugent’s comments.
I wonder why?
By: David Badash, The New Civil Rights Movement, April 17, 2012
“Intensive Fear-Mongering”: Who’s Distracting Attention From His Record Now?
In an earlier post today, I discussed at some length the anger of Republicans over Barack Obama’s efforts to “distract” voters from his record and suggest they take a long look at what life under a Romney administration might look like.
This afternoon, though, it was Mitt Romney playing the distraction game in a speech to the National Rifle Association.
Mitt, you see, has rather a poor relationship with the gun lobby, having signed a couple of bills as governor of Massachusetts they really, really didn’t like, while refusing until he started running for president to give them toadying fealty to which they feel entitled from GOP pols. He also can’t boast of much of a repertoire of hunting and fishing stories, since he’s only recently taken up the hobby of slaying game. I’d be willing to bet he doesn’t even own one of those big Second Amendment belt buckles with a fierce, gun-wielding eagle on it.
I’m sure Romney would have been happy to regale the NRA crowd with lurid reminders of the Obama administration’s relentless efforts to restrict gun rights–except they don’t actually exist, unless you buy the right-wing conspiracy theory that the botched “Fast and Furious” operation was some devious effort to set the stage for more regulation of gun dealers.
So instead Mitt did some intensive fear-mongering about what Barack Obama, released from the political constraints of re-election, might do to express his hatred of freedom:
Romney further pressed his vision of the fall election as a defining choice between two different destinies, and accused the Obama administration of curtailing Americans’ personal, religious and economic freedoms. He referred to the NRA as a single-issue group — that issue being freedom.
Eighteen minutes into his speech, Romney pivoted to Second Amendment issues, pledging to stand up for the rights of hunters, sportsman and other gun owners, and accusing the president of failing to do so.
It’s unclear to me why it’s okay for Romney to posit the election as “a defining choice between two different destinies,” with special attention to the potential impact on the shape of the Supreme Court, but if Obama does the same thing, it’s an outrage.
Let’s have some of the same sauce for geese and ganders, please.
By: Ed Kilgore, Washington Monthly Political Animal, April 13, 2012
“Pinhead Density Arguments”: There Was A Reason Conservatives Once Supported The Individual Mandate
Of all the arguments being waged over the Affordable Care Act — or, as the Obama campaign now likes to refer to it, “Obamacare” — the one dominating the Supreme Court this week is perhaps the most conceptually trivial.
The individual mandate requires consumers to purchase health insurance in order to eliminate the problem of free riders — people who don’t purchase insurance until they get sick or injured or those who never purchase insurance and end up passing on to the rest of us the costs of care they can’t afford. Detractors argue that the mandate unconstitutionally infringes on personal liberty by forcing Americans to purchase health insurance. But compare it to three ways of addressing the free- rider problem in health care that are clearly, indisputably, constitutional:
• Single payer: The federal government increases income taxes and, in return, guarantees everyone government-provided health-care insurance. There is no option to opt out of the taxes. This is how most of Medicare works, though the insurance kicks in only after you turn 65.
• Late-enrollment penalty: The single-payer approach only holds for “most of” Medicare because the Medicare Prescription Drug Benefit works a bit differently. For every month that you don’t enroll after becoming eligible at age 65, your premium rises by one percentage point.
• Tax credits: Under various health-care proposals — including the plan of Rep.Paul Ryan (R-Wis.) — the tax code is changed to give families a tax credit for purchasing private health insurance. Families that choose to go without insurance, or simply can’t afford it, would not receive the tax credit.
All of these plans share the same basic approach: They impose a financial penalty, either before or after the fact, on those who forgo health insurance. Single payer does it through taxes, Medicare Part D through premiums and Ryan’s plan through tax credits.
Now consider the individual mandate. Here’s how it works: Starting in 2016, those who don’t carry insurance will be annually assessed a fine of $695 or 2.5 percent of their income, whichever is higher.
Skeptics of government should clearly prefer the individual mandate to single payer. In fact, the individual mandate was developed by conservative economist Mark Pauly as an alternative to single payer. “We did it because we were concerned about the specter of single-payer insurance, which isn’t market-oriented, and we didn’t think was a good idea,” Pauly told me last year. In the 1990s, the individual mandate was also the Republican counterproposal to President Bill Clinton’s health-care bill, and in 2005, it was the centerpiece of Massachusetts Gov. Mitt Romney’s health-care reforms.
The Medicare Part D model doesn’t really work as an alternative to the individual mandate because it requires the federal government to set the cost of premiums. That’s possible with the over-65 set, because the government controls the market. To import that idea to the under-65 market, however, would require vastly more governmental intrusion into the health-care space.
The tax credit, meanwhile, is essentially indistinguishable from the mandate. Ryan’s plan offers a $2,300 refundable tax credit to individuals and a $5,700 credit to families who purchase private health insurance. Of course, tax credits aren’t free. In effect, what Ryan’s plan does is raise taxes and/or cut services by the cost of his credit and then rebate the difference to everyone who signs up for health insurance. It’s essentially a roundabout version of the individual mandate, which directly taxes people who don’t buy health insurance in the first place.
“It’s the same,” says William Gale, director of the Tax Policy Center. “The economics of saying you get a credit if you buy insurance and you don’t if you don’t are not different than the economics of saying you pay a penalty if you don’t buy insurance and you don’t if you do.”
Interestingly, Ryan’s plan imposes, if anything, a harsher penalty on those who don’t purchase health insurance. Ryan’s tax credit is far larger than the individual mandate’s penalty, and much easier to enforce. Under Ryan’s plan, if you don’t purchase insurance, you don’t get the credit. End of story. Conversely, the Affordable Care Act doesn’t include an actual enforcement mechanism for the individual mandate. If you refuse to pay it, the IRS can’t throw you in jail, dock your wages or really do anything at all.
This leads to one of the secrets of Obamacare: Perhaps the best deal in the bill is to pay the mandate penalty year after year and only purchase insurance once you get sick. To knowingly free ride, in other words. In that scenario, the mandate acts as an option for purchasing insurance at a low price when you need it. For that reason, when health-policy experts worry about the mandate, they don’t worry that it is too coercive. They worry that it isn’t coercive enough.
The mandate is considered more effective than tax credits because people seem more inclined to take action to avoid penalties than to receive benefits. That’s worked extremely well in Massachusetts, for instance, where there’s been almost no free-rider problem at all. So while it’s not different as a matter of economics, it’s a bit different as a matter of behavioral economics. In that way, the mandate does a little more to solve the free-rider problem with a little less action from the government.
Randy Barnett, a conservative law professor at Georgetown University, agrees that there’s some similarity between the two approaches. But he warns that that doesn’t make them legally equivalent. “Just because the government does have the power to do X, doesn’t mean they have the power to do Y, even if Y has the same effect as X,” he says. “There’s no constitutional principle like that.”
Although that’s true, it also leaves us in a peculiar spot. The constitutional argument over Obamacare is a dispute over a technicality. We agree that it’s constitutional for the government to intervene far more aggressively in the market. We agree that it’s constitutional for it to intervene in an almost identical, albeit slightly more roundabout, manner. We’re just not sure if the government needs to call the individual mandate a “tax” rather than “a penalty,” or perhaps structure it as a tax credit. As Pauly puts it, “This seems to me to be angelic pinhead density arguments about whether it’s a payment to do something or not to do something.”
Of course, this battle isn’t really about the constitutionality of the individual mandate. Members of the Republican Party didn’t express concerns that the individual mandate might be an unconstitutional assault on liberty when they devised the idea in the late 1980s, or when they wielded it against the Clinton White House in the 1990s, or when it was passed into law in Massachusetts in the mid-2000s. Indeed, Sen. Jim DeMint (S.C.), arguably the most conservative Republican in the Senate, touted Romney’s reforms as a model for the nation. Only after the mandate became the centerpiece of the Democrats’ health-care bill did its constitutionality suddenly become an issue.
The real fight is over whether the Affordable Care Act should exist at all. Republicans lost that battle in Congress, where they lacked a majority in 2010. Now they hope to win it in the Supreme Court, where they hold a one-vote advantage. The argument against the individual mandate is a pretext for overturning Obamacare. But it’s a pretext that could set a very peculiar precedent.
If the mandate falls, future politicians, who will still need to fix the health-care system and address the free-rider problem, will be left with the option of either moving toward a single-payer system or offering incredibly large, expensive tax credits in order to persuade people to do things they don’t otherwise want to do. That is to say, in the name of liberty, Republicans and their allies on the Supreme Court will have guaranteed a future with much more government intrusion in the health-care marketplace.
By: Ezra Klein, The Washington Post, March 31, 2012
“As Lawless As The Pharaohs”: The Conservative Grip On Power
Writing in Salon, Natasha Lennard proposes that with the warm weather we can again expect the Occupy movement to shoot up. Arab Spring, American Spring. She’s right about one thing: Like in the decades before the Arab Spring, it has been a long, cold, American winter. In the 30 years since coming to power here, Republicans have used their initial ascent to power to seal themselves into office as tightly as the pharaohs. Smart commentators have noted how lawless the conservatives are in making substantive decisions, but that’s not the worst of it. The worst of it is how they use their tenure to make it increasingly impossible to oust them.
With this week’s Supreme Court hearings — which will end, liberals worry, with the justices overturning healthcare reform — we are nearing the apotheosis of conservative power. Let us recount how we got here: In 2000, a mob of conservative thugs stopped the vote recount in Florida. And that was before the court got involved, the five conservative justices seizing the election and handing the White House to George W. Bush. Secure in the tenure of their undemocratically selected president, the two older conservative justices, William Rehnquist and Sandra Day O’Connor, retired from the bench. Bush replaced them with two young conservatives, destined, by constitutional design and the miracles of modern medicine, to dominate the court into the foreseeable future. At the Supreme Court, it’s always winter (and never Christmas).
The stunningly inept performance by the Bush administration unforeseeably produced the first Democratic federal government since 1994. Immediately thereafter, the conservative Supreme Court majority ruled that the GOP’s wealthy sponsors could spend an unlimited amount of the money putting conservatives in office. Now, the conservative majority on the Supreme Court, appointed, in part, by the conservative president they put in the White House, is preparing to wipe from the statute books the only piece of meaningful progressive legislation in the last half century, passed during the brief Indian summer of a two-year Democratic majority.
And it’s not just the federal government. In 2010, fueled, in part, by the money the conservative justices unleashed, the conservatives took over state legislatures across the country. In power, they enacted a series of measures that should make Hosni Mubarak blush. They redrew the legislative maps to guarantee that they would hold a majority of the legislatures, state and federal, regardless of whether they failed to gain a majority of actual votes. (The design of the Senate, favoring sparsely populated rural states, already way overrepresents the Republicans.) Using a panoply of legislative strategies, they made it infinitely harder for the Democrats to register their supporters and for the Democratic voters, even if registered, to vote. Voters must be reported within 24 hours of being registered or penalties will be levied on the laggard registrars. Would-be voters must produce a fistful of identity documents, notoriously more common among old white (Republican) voters than the youthful and nonwhite Americans likely to support the Democrats. If they run the registration gauntlet, they must again verify their identity on Election Day, with the same culturally skewed set of papers. In the swing state of Florida, the New York Times reports, the activists have given up registering new voters: Too perilous.
True, the Democrats have not been models of political virtue. Cowardly when confronted by their powerful adversaries, confused about the moral grounding of their political vision, faithless to their allies, racketing from one trendy policy initiative to another, without anything resembling long-term planning — with enemies like the Democrats, who needs friends? But blaming the victim is way too easy. Democrats made the mistake of behaving as if the American rules of representative government still applied. Confronted with the lawless conservative Republicans, their fate was sealed.
By: Linda Hirshman, Salon, March 31, 2012
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