At 6:00 p.m. on the Friday before Labor Day weekend, Arizona officials announced the granting of a multi-million dollar contract to Corrections Corporation of America, a private prison giant, for the operation of one thousand medium security prison beds. The grant was not exactly a big surprise; CCA had hired as lobbyists people close to Gov. Jan Brewer.
What should be more surprising is that officials are arguing with a straight face that the deal is good for taxpayers, in spite of evidence to the contrary. As the Arizona Republic reported,
The contract calls for CCA to be paid a per diem rate of $65.43 per bed. The most recent information available shows the average daily cost per inmate in a state-run medium-custody facility in 2010 was $48.42. The award to CCA is 35percent more than what it cost the state to house and monitor inmates two years ago.
Unfortunately for taxpayers, Arizona officials have repeatedly demonstrated their willingness to tap taxpayers in order to advance an anti-government ideology and boost the profits of a company that is generous with its spending on lobbying and campaign contributions.
People For the American Way Foundation’s recent report “Predatory Privatization” noted that private prisons in Arizona cost the state as much as $7 million more in 2009 and 2010 than units operated by the state department of corrections. The report also noted CCA’s aggressive expansion plans:
Earlier this year, CCA wrote to officials in 48 states offering to buy and run prisons if states would guarantee a 90 percent occupancy rate. A coalition of religious groups urged state officials to turn down the offer, which the groups said would create an incentive for mass incarceration and “be costly to the moral strength of your state” as well as costly financially.
Here’s a quick recap of the Supreme Court’s decisions during the past week: Unions are now further disadvantaged and despite some important changes to the state’s immigration law, racial profiling remains a viable option for Arizona law enforcement.
On June 21, the Supreme Court issued its decision on Knox v. Service Employees International Union (SEIU) Local 1000. The case dealt with a labor policy several states have, known as agency shops, in which employees are not required to become members of the union representing their place of employment, but must pay dues since they benefit from the work the union does. At the point in which all employees working at an establishment that has a union presence are receiving higher wages, more vacation days, and overall better working conditions, it is only fair that all employees pay union dues and not free-ride off of just the union members who pay.
However, in the case of public sector unions, the Supreme Court held a generation ago that non-members have the right to opt out of having their dues used for political activity by the union, effectively weakening the union’s ability to operate on its members’ behalf. In Knox, the Court criticized the balance struck in 1986 and ruled that when the union has a mid-year special assessment or dues increase, it cannot collect any money at all from non-union members unless they affirmatively opt-in (rather than opt-out). This ruling addressed an issue that wasn’t raised by the parties and that the union never had a chance to address, furthering the Right Wing’s goal to hamper a union’s ability to collect dues and make it harder for unions to have a voice in a post-Citizens United political environment. To add insult to injury, Justice Alito let his ideological leanings shine through when he essentially claimed right-to-work laws are good policy.
After the Knox v. SEIU decision, the court released its ruling on the highly contentious 2010 Arizona anti-immigration law, known as S.B. 1070. In a 5-3 decision, the court struck down the majority of the southwestern state’s draconian immigration policy. The court ruled that much of the state’s law unconstitutionally affected areas of law preempted by the federal government, acknowledging the impracticality of each state having its own immigration policy. Oppressive anti-immigrant provisions were struck down, such as one criminalizing the failure to carry proof of citizenship at all times, and a provision making it illegal under state law for an undocumented immigrant to apply for or hold a job. The decision also recognized that merely being eligible for removal is not in itself criminal, and thus the suspicion of being eligible for removal is not sufficient cause for arrest.
Although the majority of S.B. 1070 was overturned by the Supreme Court this week, one component remains, at least for the moment. Officers can still check the immigration status of anyone stopped or arrested if they had “reasonable suspicion” that the individual may be undocumented. This keeps the door wide open for racial profiling. Arresting an individual is not the same as being convicted for a crime. Latinos and other minority groups can be stopped for a crime as simple as jaywalking and “appear” suspicious enough to warrant an immigration background check. By leaving this portion of the law, the US Supreme Court has, for the time being, allowed the potential profiling of thousands of Arizona residents, regardless of whether they are immigrants or US citizens, but has left open the ability to challenge the manner in which this provision is put into practice.
ALEC, the American Legislative Exchange Council, and ALEC members are on the run in Arizona. As more Arizonans learn about the tactics and operating procedures of the obscure network, the organization and its corporate funders are scrambling to come up with ways to justify their unjustifiable agenda.
ALEC had operated in relative obscurity for decades since its inception in 1973. However in the past year, with the launching of the ALEC-Exposed project, and some diligent investigative reporting from journalists and good government organizations alike, the veil has been removed, and ALEC has been on the run since – in recent months, thirteen companies have withdrawn financial support from the organization and 28 state legislators have renounced their membership.
In response to these developments, the Arizona ALEC network has revealed just how entrenched it is with its corporate funders. A leaked email provided to PFAW Foundation shows that ALEC legislators held an event yesterday morning to discuss ALEC PR strategy – and that the event was being actively promoted by none other than Russel Smolden, head lobbyist of the Salt River Project, a public utility corporation that sits on ALEC’s Private Enterprise Board:
Debbie Lesko and other ALEC legislative members both present and past would like to invite you to a meeting thisThurs. (April 26th), 11:00am at AGC to get the latest update on the fight that ALEC is waging in the media against its detractors. We would really appreciate your attendance
Russell D. Smoldon
Senior Director Government Relations
The ALEC agenda is out of the shadows, and its affiliates have been scrambling to come up with talking points to sugarcoat their policies. Unfortunately, no amount of obfuscation can conceal the truth. The ALEC agenda is harmful to everyday citizens because it rewards the corporations who fund the network – nearly 98 percent of it. When ALEC legislators and ALEC corporate lobbyists like Russell Smoldon agree to meet behind closed-doors like they did yesterday morning, their attempts to assuage their image crisis only tarnish their reputations further, for what could they could they possibly be discussing that requires confidentiality?
The following photos are of lobbyists arriving at and leaving from the closed-door ALEC-PR strategy meeting:
[Russel Smoldon (on the right) – author of leaked email, head lobbyist for the Salt River Project.]
[Joe Abate – lobbyist representing PHRMA, among other clients.]
[Spencer Kamps – lobbyist for Home Builders Associations of Central AZ.]
[Marty Schulz – former registered lobbyist for Pinnacle West, now works at the Denver, CO-based firm, Brownstein Hyatt Farber Schreck.]
Click here to view PFAW Foundation’s press release on this development.
Endnote: In November of 2011 and April of 2012, PFAW Foundation released two reports, in conjunction with Common Cause, Progress Now and the Center for Media and Democracy, documenting the enormous influence that ALEC has in Arizona. The reports evidence how ALEC legislators have introduced and passed ALEC model legislation that has damaged communities and harmed the state – from attacks on public education to privatizing prisons to reducing consumer protections, the corporate-backed ALEC agenda has transformed Arizona into an ALEC model state, one that Arizonans, as evidenced by the recall of ALEC member and former Senate President Russell Pearce, are rejecting in force.
Following the release of the second report, Arizona Public Service Company (APS), Arizona’s largest utility in the state, announced it was severing ties with ALEC.
And for more information on State Representative Debbie Lesko - who was one of the hosts of the ALEC PR strategy meeting - and her ties with ALEC-sponsor SRP, please check out CMD's post on the connection.
This morning, the Supreme Court heard the oral arguments of Arizona v. United States, a case that will examine key provisions of Arizona’s infamous and draconian immigration law, SB 1070. If implemented, the law, colloquially known as the ‘show me your papers bill,’ would lead to the unjust targeting of Arizonans through racial profiling and increased jail sentencing.
Because of SB 1070’s blatant assault on civil liberties, much of the nation was shocked by its passage. The United States challenged it in court, arguing that the state was unconstitutionally encroaching on the federal government’s responsibility for immigration law. Four sections of the bill were blocked by U.S. District Judge Susan Bolton of Phoenix on July 28, 2010. The 9th Circuit Court of Appeals in San Francisco upheld Bolton’s ruling, and after Arizona appealed that decision, the case arrived at the Supreme Court, which has chosen to address yet another politically polarizing issue in this critical election year. Although the threat to the basic rights of people – both citizens and immigrants – is the subject of significant concern, the legal issue before the Supreme Court today addresses whether Arizona’s effort to make life so miserable for immigrants that they leave the state is preempted by federal law.
Below is an analysis of the legislation that People For the American Way published when participating in a statewide boycott of Arizona following the passage of the legislation nearly two years ago.
Question: How does the Arizona law, S.B. 1070, expand racial profiling? Isn't it focused only on migrant workers?
Answer: Under current law, state-local police are authorized to enforce federal immigration laws only in limited circumstances. Even so, law enforcement in Arizona and across the country already is challenged by substantial evidence of wrongful arrests, racial profiling, and discrimination. The new law would dramatically expand the problem. Specifically, the new law:
• Increases the scope of those enforcing immigration laws from a few police departments, or units within departments, to every single law enforcement officer in the entire state.
• Expands the population at risk of being stopped, arrested, and detained from a limited number – those targeted by bona fide immigration enforcement operations, or those already in police custody – to everyone who comes into contact with a law enforcement officer who has a "reasonable suspicion" someone may be undocumented.
• Virtually guarantees that Latinos and other minorities will be asked to provide proof of legal residency, and be subject to arrest and detention if they cannot do so, at far higher rates than non-minorities. Research on racial profiling shows that, not only do minority drivers experience more traffic stops than non-minority drivers, once stopped, minorities are subject to higher rates of searches, arrests, and formal charges than similarly-situated non-minority drivers.
• Provides powerful incentives for wrongful arrests, racial profiling, and other abuse by creating a private right of action against any agency that fails to uphold the new law's provisions, while at the same time indemnifying police officers from litigation brought by those who are wrongfully detained or racially profiled.
Demonstrations in support of the U.S. Justice Department took place this morning, and PFAW staff were able to attend in solidarity.
End Note: Another controversial aspect of SB 1070 is the role that ALEC, the American Legislative Exchange Council, played in adopting the bill as model legislation and pushing it in states across the country. For an analysis of the ALEC connection and SB 1070, please read our report on ALEC in Arizona released in November 2011, “ALEC IN ARIZONA: The Voice of Corporate Special Interests in the Halls of Arizona's Legislature” and the Center for Media and Democracy’s blog post on the issue.
The Leadership Conference on Civil and Human Rights organized a call yesterday with Sen. Chris Coons of Delaware and attorneys from Ohio, South Carolina and Arizona to discuss how judicial nominations gridlock in Washington hurts Americans seeking justice around the country.
On Wednesday, Senate Majority Leader Harry Reid reached a deal with Republicans to allow votes on 14 of 22 stalled judicial nominees. The first two of those were confirmed yesterday with overwhelming bipartisan votes.
The deal, while it represents more progress than Senate Republicans were previously willing to allow, still leaves eight nominees without even a vote from the Senate until May at least. Three of these nominees are from Ohio, Arizona and South Carolina.
This procedural gridlock is often portrayed as an inside-the-beltway issue. However, it has a real impact on American seeking justice from our federal courts.
Greg Kuykendall, a Tucson attorney who joined the call, told of a client who had to wait 14 months in jail before a District Court judge with an unmanageable caseload was finally able to review his claim that he was being detained in violation of his constitutional rights. “It effectively made the prisoner spend an additional 14 months in unconstitutional confinement, as a result of the judicial emergency,” Kuykendall said.
Cleveland attorney Michael Meuti told of a Ohio business that had to wait 14 months for a federal judge to review charges that had been brought against it. In the meantime, the business had to endure the uncertainty and cost of having a lawsuit hanging over it.
“Understaffed courts struggle to provide efficient and effective justice,” Meuti said. “When judicial vacancies increase, so do the workloads of each sitting judge. In turn, both individuals and businesses must wait longer for their cases to be resolved and must endure the uncertainties and costs of litigation for a greater period of time. President Obama’s nominees have waited four times longer than his predecessor’s. It is time for the Senate to abandon its obstructionist agenda, which can serve only to make justice harder to obtain for everyday Americans and American companies.”
Armand Derfner, a Charleston, South Carolina attorney, added, “"These nominees are being obstructed for no good reason. They’re suitable, qualified, and many have bipartisan support. The Senate should stop delaying votes to fill these vacancies.”
Timothy K. Lewis, a George H.W. Bush nominee who served on the Third Circuit Court of Appeals from 1992 through 1999, offers some perspective on how judicial confirmations were handled before they became mired in hyper-partisan gridlock:
Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my Senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.
Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.
Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting Senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 322 confirmed nominees and Bill Clinton had 372 confirmed.
The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the President’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this President, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the Senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top – top — political priority over the next two years should be to deny President Obama a second term in office. Really, Senator? So where on the priority list do we put conducting the Senate’s constitutional business?
The gridlock in judicial nominations has been one of the less-noticed bits of collateral damage from the congressional GOP’s scorched-earth policy. But it has caused very real harm to Americans seeking justice in courts around the country -- there are currently 37 judicial emergencies in the federal courts in areas where the sitting judges are too overworked to provide prompt access to justice. Last week, Senate Republicans made an exception to their gridlock rule to fill the most publicized of those emergencies: the seat of Arizona Judge John Roll, who was murdered in the Phoenix shooting that critically injured Rep. Gabrielle Giffords. Roll had stopped by the Giffords event to tell the congresswoman about the urgent need to fill vacancies on the court.
Senate Republicans’ commitment to delay was made particularly clear when they refused to allow a floor vote on 20 pending nominees, most of whom had advanced with no opposition. The Senate GOP’s foot-dragging on judicial nominees is clearly meant to hobble the president’s attempts at basic governance and preserve the dominance of conservative George W. Bush-appointed judges. But it also amounts to the shirking of a basic duty of the Senate: to fill the judiciary with capable, non-politically-motivated judges.
This morning, Republicans on the Senate Judiciary Committee did something they have done only a handful of times: They exercised their discretion NOT to obstruct one of President Obama's judicial nominees.
The Committee was scheduled to vote on ten nominations this morning. With only four exceptions during the entirety of Obama's presidency, Republicans have exercised their prerogative to delay a committee vote for judicial nominees, even when those nominees are unopposed and are desperately needed to address burgeoning judicial emergencies. It is part of their larger strategy to throw sand in the wheels of the confirmation process in every way possible.
This morning, they did not request a delay for Jennifer Guerin Zipps, who has been nominated to be a district judge in Arizona. What makes Guerin Zipps different? The seat is a judicial emergency, but that has not mattered before. The nominee is unopposed, but even nominees without opposition and with the strong support of their Republican home-state senators have seen their votes delayed.
Only one thing makes this nomination different: Republicans know that the American people are paying attention, because this is to fill the seat that was held by Judge John Roll, who was among those killed in Tucson last January when Congresswoman Gabrielle Giffords was shot. Roll was seeking to meet Giffords to discuss the worsening caseload crisis overwhelming the area's federal judges. Americans were appalled by the violence, which brings this particular vacancy far more public attention than usual.
Knowing the American people are somberly watching, Senate Republicans declined to play political games with this nomination.
Not surprisingly, for all the other nominations that were scheduled for a committee vote for the first time this morning, they demanded a needless delay.
USA Today ran a fantastic article on its front page today, featuring PFAW Foundation board member Kyrsten Sinema, who is an Arizona state senator and a member of PFAW Foundation’s Young Elected Officials Network. The article highlights some statistics that show our nation as a whole becoming more accepting of members of the LGBT community…and more willing to elect LGBT candidates for public office.
In politics, the number of gay men and lesbians running for public office and winning has begun to increase significantly, although gay candidates, especially in more conservative areas, continue to face skepticism and opposition from some voters.
The Gay & Lesbian Victory Fund calculates that 107 openly gay candidates were elected to office nationwide in 2010, an increase of one-third from 2008 and nearly threefold the number of a decade earlier. The political action committee projects another significant jump in 2012.
In a seismic shift, Americans by more than 2-1 say they would vote for a gay candidate for president.
While there is still work to be done, these numbers are inspiring. The full story features many more interesting facts, along with some great quotes from PFAW Foundation’s own Krysten Sinema, so I definitely suggesting reading the entire article!
Last year, the Supreme Court ruled that corporations have a First Amendment right to spend as much as they want to influence elections. Yesterday, the Court ruled that wealthy candidates and campaign donors have the First Amendment right not to have their spending matched by their opponents.
Welcome to the new logic of free speech in elections.
In a 5-4 decision today, the Supreme Court ruled that a crucial provision of Arizona’s landmark clean elections law, which provides matching funds to publicly financed candidates who are up against particularly well-financed opponents, to be unconstitutional. Why? Because the provision to put publicly financed candidates on even footing with their privately financed opponents “chills” the speech of wealthy individuals and groups who want to pour money into elections.
Yes, if you’re a wealthy person or interest group looking to buy an impact in an election, you might be put off by knowing that, because of matching funds, you would never be able to overwhelm a publicly funded opponent into comparative silence. But, looking at it from the other side, if you’re a candidate who wants to spend your campaign talking to voters rather than donors, you might hesitate to take public financing if you knew you would never be able to even come close the funds of your opponent – without matching funds, the public financing system is all but useless. By taking away the mechanism by which a greater number of candidates can make their voices heard, the Court has stifled speech, rather than protected it.
Justice Elena Kagan, in a zinger-laden dissent, took on the majority’s “more speech is less speech” argument:
The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people."
People For’s Marge Baker had this to say:
The Roberts Court has once again twisted the Constitution to benefit the wealthy and powerful while leaving ordinary Americans with a diminished voice. Like in Citizens United v. FEC, which prohibited legislatures from limiting corporate spending to influence elections, the Court’s majority has strayed from the text and history of the Constitution in order to prevent citizens from maintaining control over our democracy. The Roberts Court would do well to remember that the Constitution was written to protect democracy for all people, not just the rich and powerful. Today it has ruled not only that the wealthy have a right to spend more but that they have a right that everyone else spend less.
Last year, Arizona’s state legislature caused a national uproar when it passed a constitutionally dubious bill giving state and local law enforcement officers the power to police for illegal immigrants and essentially requiring all people who may look like immigrants to carry their immigration papers. Parts of that law are currently on hold as courts determine their constitutionality, but the copy-cat laws keep coming. Alabama’s governor has now signed the state’s own SB 1070 on steroids, or what its sponsor called “an Arizona bill with an Alabama twist”:
Under the new measure, police must detain someone they suspect of being in the country illegally if the person cannot produce proper documentation when stopped for any reason.
It also will be a crime to knowingly transport or harbor someone who is in the country illegally. The law imposes penalties on businesses that knowingly employ someone without legal resident status. A company's business license could be suspended or revoked.
The law requires Alabama businesses to use a database called E-Verify to confirm the immigration status of new employees.
Alabama's law is unique in requiring public schools to determine, by review of birth certificates or sworn affidavits, the legal residency status of students.
In other words, not only are Alabama police now being roped into immigration enforcement – so are public schools and private businesses and even private citizens. The law enforcement provision is troubling: like Arizona’s law, it would seem to encourage racial profiling by police officers instructed to detain people who they suspect may be undocumented immigrants. But Alabama’s new “twist,” requiring schools to investigate the immigration status of their students is one of the most dramatic over-reaches included in the many anti-immigrant laws that have been making their way through state government’s since the passage of SB 1070.
It’s no surprise that the mind behind Alabama’s law is Kris Kobach, Kansas’s secretary of state, who was also behind Arizona’s law. Kobach was formerly the top lawyer at the Immigration Reform Law Institute, the legal arm of FAIR, the central group in the anti-immigrant movement, which has a long history of racially-charged attacks on immigrants. FAIR, formerly a fringe group, and the divisive and dehumanizing rhetoric it pushes have been enjoying a renewed national prominence in the vicious anti-immigrant movement that has begun to take hold among even the mainstream GOP. We reviewed the tactics of Kobach and his allies in a report last year on growing trends in anti-immigrant rhetoric.
With Chief Justice Roberts writing an opinion for the conservative majority (or, in parts of the decision, a plurality), the Supreme Court yesterday upheld an Arizona law imposing draconian penalties on employers for hiring undocumented aliens, evading a federal law preempting such state laws.
Chamber of Commerce v. Whiting involves a 2007 Arizona law that punishes employers who knowingly hire undocumented aliens by suspending or revoking most of their state licenses. The Chamber of Commerce argued that the law is preempted by the federal Immigration Reform and Control Act of 1986 (IRCA). IRCA prohibits the hiring of undocumented aliens and sets forth procedures employers must follow before hiring someone and the sanctions they will incur for violating the law.
Most importantly, IRCA expressly preempts local and state laws creating sanctions (other than through licensing and similar laws).
It is the "licensing and similar laws" clause in the federal law that is crucial in this case, because the draconian punishment set forth in the Arizona law is the suspension and revocation of "licenses," a term defined so broadly in the Arizona statute that it even includes a company's articles of incorporation. Some have called this the "business death sentence."
The Court noted that in dictionary definitions and other statutes, the term "license" can have a very wide definition that includes articles of incorporation. The Court concluded that nothing in the federal law prohibits Arizona from broadly defining the term licenses, so it upholds the state law. However, Justices Breyer and Sotomayor's dissents pointed out that the opinion overlooks how context narrows the definition of a word. As Justice Breyer wrote:
But neither dictionary definitions nor the use of the word "license" in an unrelated statute can demonstrate what scope Congress intended the word "licensing" to have as it used that word in this federal statute. Instead, statutory context must ultimately determine the word's coverage.
Justice Breyer pointed out that IRCA is carefully calibrated to balance multiple competing goals. Arizona's "death penalty" for businesses and lax procedural safeguards throw IRCA's carefully calibrated balance into disarray. Justice Sotomayor explained that the uniform federal plan becomes wildly internally inconsistent if interpreted to allow state-by-state decisions as to whether an employer has hired an undocumented worker.
The Court also upheld Arizona's requiring employers to use the federal E-Verify database to confirm that a person is legally authorized to work. Federal law makes its use voluntary, but the Roberts Court held that means only that no federal agency can make its use mandatory. States are free to require it if they so choose. The fact that it is a pilot program and that Congress actually had reasons not to make its use mandatory seems not to matter.
Federal law mandates a unified federal approach to immigration issues, and comprehensive immigration reform is long overdue. But right-wing efforts in Arizona to attack immigrants on a state-by-state basis today got a green light from the Roberts Court. This may signal that the state's infamous "your papers please" anti-immigrant law may get a welcome reception from the conservative Justices.
In a nod to arbitrariness, Arizona Governor Jan Brewer decided yesterday that one particularly crazy, shameful and embarrassing proposal from her state legislature was just too crazy, shameful and embarrassing to actually sign into law. We are of course talking about the shockingly-still-popular “birther” trend in Republican politics, and Arizona was set to become the first state to pass a requirement that presidential candidates must prove their U.S. citizenship before they can appear on the ballot. According to Brewer, asking the potential next president of the United States to show his or her birth certificate (or perhaps circumcision records) is undignified and unnecessary:
I never imagined being presented with a bill that could require candidates for President of the greatest and most powerful nation on earth to submit their 'early baptismal or circumcision certificates'… this is a bridge too far. This measure creates significant new problems while failing to do anything constructive for Arizona.
Apparently, “show me your papers” is an inappropriate thing to ask of someone who wants the top job in the “greatest and most powerful nation on earth,” but it is a perfectly fine thing to demand from someone who just wants to live and work there. And it is definitely okay to ask this of people that you have racially profiled.
On another note, Governor Brewer must have felt the need to balance her rational decision to veto the birther bill by signing a correspondingly irrational bill that creates huge obstacles for same-sex couples wishing to adopt a child.
A closely divided Supreme Court issued a seriously flawed decision today in Arizona Christian Tuition v. Winn, using constitutional sleight of hand to get around the Establishment Clause's prohibition against the use of public funds for religious purposes and to frustrate Americans' ability to go to court when the constitutional guarantee of church-state separation is violated.
Here's the background to the case, which involves the state of Arizona's program to support religious schools.
States are constitutionally prohibited from directly supporting religious education. So Arizona figured out a way to try to get around that inconvenient First Amendment by setting up a system where that money goes to the religious organization before it gets to the treasury.
Arizona has a program where taxpayers get dollar-for-dollar tax credits for money they give to "school tuition organizations" (STOs), nonprofit organizations that award private school scholarships to children. Many of the STO awards actually require parents to send their children to religious schools as a condition of receipt.
So an Arizonan can take a certain amount of money that he owes in taxes and instead give it to a religious STO to pay for someone's religious education. As Justice Kagan said during oral arguments, Arizona established the program so STOs, acting as state intermediaries, could "make distinctions that the state itself cannot make."
Essentially, the state has set up a money laundering scheme to get around the Establishment Clause.
However, before the Court could address the program's constitutionality, it first had to determine if the taxpayer plaintiffs have standing to sue. The Constitution prohibits federal courts from hearing a case unless the plaintiff has a personal stake in the outcome. Simply being a taxpayer generally does not give you such a personal stake. However, in the Flast v. Cohen decision of 1968, the Supreme Court recognized that federal taxpayers do have such a stake when they challenge Congressional spending.
The Roberts Court today ignored common sense and the reasoning of Flast and concluded that Arizona state taxpayers don't have standing to bring this case to federal court. As they did in the 2007 Hein v. Freedom From Religion Foundation case, the five conservatives acted to prevent courts from enforcing the Establishment Clause of the First Amendment.
According to the Roberts Court, there is no government spending here to contest. Instead, it is simply a series of independent spending decisions made by private citizens who are spending their own money, not the government's.
This is constitutional sleight of hand at its worst, which Justice Kagan pointed out in dissent. As she noted, the majority is making an arbitrary distinction between cash grants and targeted tax breaks for the purposes of standing: Either way, the government has financed religious activity, so either way, taxpayers should be able to challenge the subsidy.
Since there are times when no one other than taxpayers has suffered the injury necessary to challenge government sponsorship of religion, the majority opinion "will diminish the Establishment Clause's force and meaning." The dissent continued:
"The Court opinion thus offers a roadmap – more truly, just a one-step instruction – to any government that wishes to insulate its financing of religious activity from legal challenge. Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts."
It is a good day for the religious right, and a bad one for the United States Constitution and the rule of law.