Constitution

Vitter and Paul Ramp Up Their War Against Latinos

Earlier this year, Senators David Vitter and Rand Paul introduced a constitutional amendment to eliminate one of the key advancements in liberty in American history: the citizenship provision of the Fourteenth Amendment, a necessary reform that was made possible only at the horrendous cost of four years of bloody war. Correcting the mistakes of the past, Americans guaranteed the promises of liberty and equality available for all who were born here. The senators' proposed constitutional amendment was a shameful statement that those who adopted the Fourteenth Amendment had made a mistake.

Even though both senators had also (falsely) claimed that the Fourteenth Amendment did not confer citizenship on people born here to undocumented immigrants, their introduction of a constitutional amendment suggested a recognition that writing millions of Americans out of the Constitution would effect a fundamental change in our nation's character.

However, as Andrea Nill reports in Think Progress, Vitter and Paul have managed to take their hostility toward millions of Latinos to the next level:

This week, the two senators addressed the legislative dissonance by introducing a bill that's essentially a carbon copy of Rep. Steve King's (R-IA) birthright citizenship proposal in the House. Vitter and Paul, along with Sens. Mike Lee (R-UT) and Jerry Moran (R-KS), say their legislation "requires the federal government to limit automatic citizenship to children born to at least one parent who is a citizen, legal resident, or member of the military."

Yet, rather than seeking two thirds of Congress and three-fourths of all the states to amend the Constitution, they now simply seek to redefine it by amending the Immigration and Nationality Act. ...

Since it’s highly unlikely their proposal will get very far, it raises the question of what Vitter and Paul’s goals really are. It’s one thing to argue in favor of a constitutional amendment. The arguments behind it are still beyond questionable, but at least they are based on a general agreement that the 14th amendment has been rightly interpreted throughout the past century. When people start arguing that the Constitution has been misread for over 150 years, it undercuts the legitimacy of the millions of Latino and Asian citizens who at some point in their family tree had citizenship conferred to them through an immigrant family member who came to the U.S. during periods when most foreign residents lacked formal “legal” status. Given the fact that Vitter and Paul waged two of the most blatantly racist campaigns last year, I wouldn’t be surprised if that’s exactly what they’re trying to accomplish.

As we have reported, legislative efforts to exclude millions of people who were born here from the rights of citizenship are flatly inconsistent with the Fourteenth Amendment's plain text and its history, buttressed by over a century of case law.

PFAW

Roberts Court Leaves State’s Church/State Money Laundering Scheme Intact

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.

PFAW

Wisconsin Republicans Challenge The Rule Of Law To Push Anti-Union Agenda

After the Republican-controlled Wisconsin legislature rushed-through Governor Scott Walker’s union-busting legislation, the District Attorney of Dane County, which covers the state capital, sued to block the law’s implementation. According to the District Attorney, the legislature violated the state’s open meetings law by failing to give the public 24 hours notice before meeting about the bill, resulting with a judge issuing a temporary restraining order on the bill’s implementation. But the GOP leaders of the legislature decided to publish the bill despite the judge’s ruling, creating immense confusion about whether the anti-union legislation is the law or not. While the judge did not explicitly bar the Legislative Reference Bureau from publishing the law, the clear intent of the judge’s order was to prevent the law from being implemented.

CNN reports on the ensuing legal crisis and the reactions of labor organizers and State Senator Chris Larson, a member of PFAW Foundation’s Young Elected Officials Network, who are leading the charge against the GOP’s latest power grab:

The litigious and contentious battle in Wisconsin over collective bargaining rights has a new twist -- the publishing of the law despite a judge's order against such a move.

That left lawmakers and observers wondering Saturday whether the law had taken effect.

This latest drama started Friday afternoon when the state's Legislative Reference Bureau published the controversial act that curbs the collective bargaining rights of most employees.



The Wisconsin State Employees Union Council 24 blasted the publishing of the law.

"By attempting to unilaterally publish their bill eliminating the rights of hundreds of thousands of Wisconsinites, (Gov.) Walker and his cronies have unquestionably violated the laws of this state to further their extreme overreach for absolute power over our state's people."

Democratic state Sen. Chris Larson said, "The courts are going to step in again and say, 'No, you have to follow the letter of the law' and again they broke it. ... I think it's pretty shameless of Walker and the Republicans."

Update: Gov. Walker has announced that he will begin implementing the anti-union law despite the legal uncertainties. In response, state Democratic chair Mike Tate said:

"Are there any laws that yet bind Scott Walker and the Republicans? With the arrogance of the zealot, they act as if they were laws unto themselves. Ultimately, our Constitution and our courts will protect us from their warped ideologies, but in the meantime, our democracy in Wisconsin is being flayed."

Update 2: (AP) MADISON, Wis. (3/30):

A Wisconsin judge has ruled that there should be no further implementation of a law taking away nearly all collective bargaining rights for public workers.

Dane County Circuit Judge Maryann Sumi said Tuesday that her earlier restraining order saying the law shouldn't be enacted had either been ignored or misinterpreted.

Sumi stopped short of saying the law was not already in effect. She says she will take more testimony on that issue.

The Legislative Reference Bureau posted the law on a legislative website Friday, leading Gov. Scott Walker's administration to declare the law was in effect.

Sumi revised her original March temporary restraining order blocking the secretary of state from publishing the law, which is typically the last step before it becomes effective.

PFAW

Wisconsin Republicans Clamp Down on the Right to Criticize Them

Wisconsin Republicans have escalated their assault on Democrats, liberals, unions, and anyone else who does not fall into line for their ideological agenda. This time, it is the right to criticize the Republican Party that is under attack, as the Cap Times reports:

The Wisconsin Republican Party, apparently stung by a blog post written by UW-Madison history professor William Cronon, has responded by asking the University of Wisconsin-Madison for copies of all of Cronon's office e-mails that mention prominent Republicans or public employee unions.

Cronon revealed the GOP's Freedom of Information Act request in his Scholar as Citizen blog post late Thursday evening along with a lengthy, and typically scholarly, defense.

In his inaugural blog post on March 15, Cronon, one of the UW's academic stars, had sketched the apparent influence of the American Legislative Exchange Council (ALEC), a shadow conservative policy group that works with Republican state legislators, on Gov. Scott Walker's legislative agenda. It was the first time the respected professor had used a blog format and he was, to put it mildly, surprised by the response. The blog generated more than half a million hits. For many of his readers, it was the first time they were aware of the organization and its involvement with conservative legislators around the country.

Billionaire brothers Charles and David Koch, major Walker campaign contributors, provide funding support for ALEC. ...

The Republican request, filed two days after Cronon's March 15 post appeared, asks for "Copies of all emails into and out of Prof. William Cronon's state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell."

The named individuals are the Republican governor, the Republican leaders of the state House and Senate, and the eight Republican senators targeted for recall.

Professor Cronon has written a long, must-read response to this political effort to intimidate him for daring to question the Republican Party.

In some ways, this is reminiscent of Attorney General Ken Cuccinelli's assault on academic freedom in Virginia. Academic freedom exists only in name if scholars questioning the Republican Party are bullied into not using it. In that sense, the Wisconsin assault against Professor Cronon is directly related to all the other ways that the modern-day GOP is actively undermining the infrastructure of our democracy, giving us:

  • elections where significant numbers of the GOP's opponents are prevented from voting;
  • campaigns where the GOP's opponents can't be heard over corporate millions;
  • the right to protest, but if you oppose a Republican official he may secretly plant troublemakers among your group to discredit you;
  • the right to a free press, but if a Republican who you criticize sends his goons to rough you up, the Party will not bat an eye;
  • the right to form a union that cannot collectively bargain;
  • the right to free speech, but if you displease the GOP you risk becoming the subject of phony video smears followed up by legislative attack;
  • the right to lobby, but your lobbying firm loses access to a GOP-dominated Congress if it hires Democrats.

In isolation, the incident in Wisconsin is terrible. But to see it only in isolation would be a grave mistake.

If the party officials involved with this are not condemned and banished from the party, this incident will do long-term damage. Continuing party support for those who undermine the foundations of our free society – as in the examples above – significantly lowers the bar for what departures from the principles of democracy are now acceptable.

This incident should be a rallying cry for Americans to protect the liberties and rights enshrined in the U.S. Constitution.

PFAW

The Costs of Eliminating Constitutional Citizenship

Last month, Right Wing Watch looked at the historical revisionism, lack of legal logic, and indifference to practical results endemic in the movement to change the Constitution’s definition of citizenship. Following last week’s defeat of a law challenging constitutional citizenship in the Arizona senate, the Arizona Republic took takes an extensive look at the arguments for and against Constitutional citizenship. Their analysis of the pragmatic pros and cons is telling. While denying citizenship to American-born children of undocumented immigrants might save some money on social programs in the short term, the paper reports, the long-term costs of creating a huge American-born undocumented underclass—with up to 400,000 new children each year—could be huge. In addition, implementing a system to discriminate against children based on the citizenship status of their parents would be burdensome:

Limiting birthright citizenship could create costs and challenges for the government at various levels while potentially saving money in other areas.

At some level - local, state, federal or even at the hospital - someone would have to determine whether a newborn's parents were legally in the United States before the infant could be processed for a Social Security number.

Regardless of how the process worked, it would require governments to spend money creating and running an agency to verify the citizenship of parents at a time when the public is calling for less government spending and bureaucracy, said Margaret Stock, a retired Army Reserves lieutenant colonel and immigration attorney specializing in military cases.

She is concerned too that limiting birthright citizenship could hurt the nation's armed services because immigrants, and the children of immigrants, have a higher propensity to join the military than other citizens, she said.

Denying citizenship to the children of illegal immigrants could save taxpayers some money.

According to the Pew Hispanic Center, the children of undocumented immigrants are more likely to live in poverty and lack health insurance than children of U.S. citizens. As citizens, many of those children qualify for public benefits.

By denying them citizenship, those children would not be eligible for most public-assistance programs, so some of the costs to taxpayers would be less, Van Hook said.

In the long run, however, without citizenship, those children would not be able to work legally and would probably earn less money, pay less in taxes and cost the public in other ways such as emergency medical care, she said.

 

PFAW

Boehner Takes a Hit from the Right on DC Vouchers

House Speaker John Boehner took a hit yesterday in, of all places, the conservative Washington Examiner, a newspaper owned by the same folks who own the conservative Weekly Standard. Columnist Harry Jaffee slammed the Speaker for his plans to impose a reinvigorated private school voucher program on the District of Columbia. Jaffe states he is neutral on the issue of private school vouchers in general, but "with one caveat: The scholarships should not be used for parochial school tuition. And that is exactly where they have been going."

The Founding Fathers must be frowning on House Speaker John Boehner; you can almost envision the furrow on Thomas Jefferson's brow.

How could this fine conservative lawmaker from Ohio, who often cloaks himself in the Constitution, go on a crusade to give federal funds to D.C.'s Catholic schools? What happened to the separation of church and state?

Why is this a church-state issue? Because the vouchers are overwhelmingly used for religious education. In fact, the Department of Education reports that about 80% of the participating students have used the voucher to attend religious schools. Although the program may not expressly favor religious schools over others, you have to be willing to suspend your disbelief to think that that's not one of the goals of the program's proponents.

Jaffe ties the program directly to Boehner's upbringing.

So let's not let Boehner kid anyone. He's a good Catholic, attended Catholic schools in Cincinnati, has raised funds for D.C.'s Catholic schools, reads to their students, invited Cardinal Donald Wuerl to the State of the Union. His bill is a subsidy, plain and simple.

Catholic schools provide a strong education, build character and give poor kids a way out. No doubt. In Chicago and other cities, Catholic congregations support vibrant school systems. The truth is that D.C.'s Catholic community can no longer finance more than a few schools, which is why Wuerl turned seven into charter schools.

When John Boehner attended Archbishop Moeller High in Cincinnati, his parents split the cost with the local parish. When his brothers attended, Boehner helped.

That's the American way, where congregations and families helped their own get religious education. That's the way Thomas Jefferson saw it, at least.

Indeed, that is the American Way. But apparently it's not John Boehner's way.

PFAW

Government Shutdown Would Close Courts, with “Dire Consequences”

As if the current judicial vacancy crisis wasn’t enough, now a group of federal judges is warning that a government shutdown over budget issues could lead to courts closing, accused criminals going free, and Americans waiting even longer for access to justice. Judge David Sentelle, chairman of the 27-member Executive Committee of the U.S. Judicial Conference, told reporters that a government shutdown could have “potentially dire consequences” for the courts:

Federal judges would still get paid because under the Constitution, judges’ pay cannot be decreased, Sentelle said. But no other federal employees in the courthouses, like clerks, stenographers, bailiffs and security guards, would get paychecks, making it difficult if not impossible to hear cases, he said.

Also, jury trials would have to end because there would be no money to pay jurors to compensate for them missing work, he said.

If the government shuts down, Sentelle said they would ask essential personnel to work anyway and get their money after a budget is approved. “We’ve been there before and it’s not something you want to ask your employees to do,” Sentelle said.

Without personnel to hear cases, some suspected criminals could be released from prison because their case was not heard before a judge within a required deadline.

A government shutdown would be a one-two punch to the federal courts, which are already severely hampered by a vacancy crisis caused by politically motivated gridlock in the Senate confirmation process. As of March 8, there were almost 100 seats open on the federal bench, 41 of which have been declared “judicial emergencies” by the Administrative Office of the Courts.

Too often the courts are forced to be a pawn in political maneuvering in Washington—in this case, with “dire consequences” for ordinary Americans seeking justice.

PFAW

Japanese American Groups Supporting American Muslims in Fight Against Discrimination

The Washington Post today reports on the work some Japanese American groups are doing to support American Muslims, who are increasingly the objects of widespread fear and suspicion because of their faith. These groups see echoes of the persecution Japanese Americans faced during World War II in the scapegoating and vilification of American Muslims, exemplified by the congressional hearings Rep. Peter King is beginning this week:

Spurred by memories of the World War II-era roundup and internment of 110,000 of their own people, Japanese Americans - especially those on the West Coast - have been among the most vocal and passionate supporters of embattled Muslims. They've rallied public support against hate crimes at mosques, signed on to legal briefs opposing the government's indefinite detention of Muslims, organized cross-cultural trips to the Manzanar internment camp memorial near the Sierra Nevada mountains in California, and held "Bridging Communities" workshops in Islamic schools and on college campuses.

Last week, Rep. Michael M. Honda (D-Calif.), who as a child spent several wartime years living behind barbed wire at Camp Amache in southeastern Colorado, denounced King's hearings as "something similarly sinister."

"Rep. King's intent seems clear: To cast suspicion upon all Muslim Americans and to stoke the fires of anti-Muslim prejudice and Islamophobia," Honda wrote in an op-ed published by the San Francisco Chronicle.

Last November, in the heat of the debate over the Park51 Islamic community center in lower Manhattan (aka the “Ground Zero Mosque”), former Supreme Court Justice John Paul Stevens spoke [pdf] about the parallel between the prejudice Japanese Americans faced during World War II the demonization that American Muslims are facing today. Stevens, a WWII veteran, recalled a visit to Pearl Harbor in 1994, when he spotted a group of Japanese tourists and had to fight his first reaction, which was that “those people really don’t belong here”:

But then, after a period of reflection, some of those New Yorkers may have had second thoughts, just as I did at the Arizona. The Japanese tourists were not responsible for what some of their countrymen did decades ago; the Muslims planning to build the mosque are not responsible for what an entirely different group of Muslims did on 9/11. Indeed, terrorists like those who killed over 3, 000 Americans -including Catholics , Jews , Protestants, atheists and some of the 600 ,000 Muslims who live in New York -have also killed many more Muslims who disagree with their radical views in other parts of the world. Many of the Muslims who pray in New York mosques may well have come to America to escape the intolerance of radicals like those who dominate the Taliban. Descendants of pilgrims who came to America in the 17th century to escape religious persecutions -as well as those who thereafter joined the American political experiment that those people of faith helped launch -should understand why American Muslims should enjoy the freedom to build their places of worship wherever permitted by local zoning laws.

Our Constitution protects everyone of us from being found guilty of wrongdoing based on the conduct of our associates. Guilt by association is unfair. The monument teaches us that it is also profoundly unwise to draw inferences based on a person's membership in any association or group without first learning something about the group. Its message is a powerful reminder of the fact that ignorance -that is to say, fear of the unknown -is the source of most invidious prejudice.


PFAW

King Having Trouble Finding Anti-Muslim Muslims to Testify at his “Radicalization” Hearings

Speaking of officially-sanctioned Islamophobia, GOP Rep. Peter King is having a hard time finding Muslim Americans, or any experts at all, to testify in his planned hearings about the “radicalization” of American Muslims. According to the American Prospect’s Adam Serwer, the one witness that King has managed to nail down for the hearings—which are scheduled to start next week—is a man on the advisory board of a group that seeks to “educate” law enforcement officers in the field of stereotyping Muslims. Beyond that, King hasn’t had much luck finding Muslim Americans to jump on his anti-Islam bandwagon:

Now, King has already removed two witnesses from his hearings for being controversial. The first, AEI Scholar Ayaan Hirsi Ali, has suggested amending the U.S. Constitution to give fewer rights to Muslims. The other, Walid Phares, (who is also on the Clarion Fund advisory board) is a Lebanese Christian who was removed after CAIR accused him of ties to Christian militias implicated in civilian massacres in Lebanon.

These witnesses may have been "controversial," but I suspect part of the reason they were removed is that King may have not realized when he chose them that neither of them identify as Muslims. After the Investigative Project's Steve Emerson wrote King an angry letter saying he felt rejected by King's decision not to call him as a witness, King emphasized that "the lead witnesses would be Muslims who believe their community is being radicalized." Hirsi Ali was raised a Muslim but is an atheist, and Phares is a Christian.

As it stands, King has one witness, tied to the industry of Islamophobic distortion that is undermining the war of ideas against al-Qaeda by relaying misinformation to law enforcement. There just isn't a very deep bench of Muslims willing to testify before Congress that most Muslims are enemies of the state.

As PFAW’s Michael Keegan wrote last month, the problem with King’s proposed hearings is that they seem to be aimed not at dealing with the facts about domestic terrorism, but at further exploring falsehoods and misinformation that have lead to widespread resentment of American Muslims:

Rep. King, in his highly public hearings, intends to explore the "radicalization" of American Muslims and what he sees as a lack of cooperation between Muslim communities and law enforcement. Before he starts, King should look at what the experts say. The nation's top law enforcement official, U.S. Attorney General Eric Holder, recently said that "the cooperation of Muslim and Arab-American communities has been absolutely essential in identifying, and preventing, terrorist threats."

The actions of a handful of violent extremists don't represent the beliefs of an entire faith community. In fact, National Counterterrorism Center Director Michael Leiter, in earlier testimony before Rep. King and the Homeland Security Committee, said that the prevalence of violent extremists in American Muslim communities was "tiny…a minute percentage of the [U.S. Muslim] population."

Local law enforcement officials agree. This month, Los Angeles County Sheriff Lee Baca, who oversees one of the largest law enforcement operations in the country, in one of the nation's largest American Muslim population centers, said he hadn't seen any evidence of the lack of cooperation that King claims exists: "Muslim Americans in the county of Los Angeles have been overwhelmingly astounded by terrorist attacks--like everyone else--and overwhelmingly concerned about a non-repeat performance of that kind, and are willing to get involved and help."

It’s no wonder that King has been forced to rely on extremists, not experts, to argue his case.
 

PFAW

Wisconsin YEO Chris Larson Stands Up To GOP Power Play

Republicans in the Wisconsin State Senate announced that they will penalize the fourteen boycotting Senators by imposing a $100-a-day fine and taking away their parking spaces, but the chamber’s Democrats are determined to block the GOP’s radical anti-labor legislation. In an interview with Talking Points Memo, Democratic State Sen. Chris Larson described the group’s resolve not to budge in the face of Republican threats. Sen. Larson is a member of PFAW Foundation’s Young Elected Officials Network, and is working closely with PFAW to build momentum to stop Governor Scott Walker’s plan to quash workers’ rights. He makes clear that the public is increasingly turning against Walker’s plans, and that the Republicans’ latest move only shows their desperation to quickly pass their extreme legislation:

"They've become increasingly desperate with these petty things that they're throwing out there," Larson said. "The next thing they're gonna throw out is we're gonna have to say 'Mother, may I' before anybody can talk."

TPM asked Larson, who said he was at a rest stop in Illinois, whether he was prepared to pay the fines. "You know, it's not about us, it's not about the finances," said Larson. "It's about the cuts that they're doing to workers rights, it's about the cuts that they're doing to educators, and throwing out Medicare, Medicaid and Seniorcare, and trying to change these provisions."

Larson also was not entirely sure whether the fines were legally permissible. "First of all, it's in the Constitution that you cannot diminish a person's wages," said Larson. "But it's beside the point. The fact that they're trying to hold our paychecks and have these fines, it's petty and it's not impacting anybody. We had a meeting and nobody flinched at it. It was just like, wow, he's [Fitzgerald] looking really desperate."

Later in the interview, TPM noted to Larson that the fines appeared to be based on a provision in the state Constitution that the legislature "may compel the attendance of absent members in such manner and under such penalties as each house may provide."

"Well, we'll have to see when we go back," said Larson. "We'll go over it with some lawyers. The fact is, it's giving - it's not making us think about it twice. We're focused on preserving workers' rights, preserving the way of life in Wisconsin without these huge cuts to rights. That's what we're focused on.

"If they want to throw out fines, if they want to call us names and if they want to take over our staff, they're doing everything they can to ignore what the real issue is, and that's that they're going too far with their power grab. The public is crying foul and calling them out on their power grab, and they're just ignoring it."

He also added: "What they do to us is of little consequence, compared to what they're doing to themselves right now."
PFAW

A Third Judge Upholds the Healthcare Law

Another federal district judge has found the healthcare reform law constitutional. Judge Gladys Kessler in the District of Columbia becomes the third federal judge to uphold the law. As the New York Times reports:

The judge suggested in her 64-page opinion that not buying insurance was an active choice that had clear effects on the marketplace by burdening other payers with the cost of uncompensated medical care.

"Because of this cost-shifting effect," she wrote, "the individual decision to forgo health insurance, when considered in the aggregate, leads to substantially higher insurance premiums for those other individuals who do obtain coverage."

Judge Kessler observed that the basic argument against the law's constitutionality "ignores reality."

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress's power. [internal citation omitted] However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not "acting," especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

Perhaps that is why many of those on the right screaming most loudly that the law is unconstitutional were expressing the exact opposite opinion before the corporate-funded Tea Party arose, with its bizarre version of the United States Constitution seemingly written for We the Corporations, rather than We the People. After all, the individual mandate was a Republican idea and originally championed by many of those who now scream that it is an unconstitutional usurpation of power by the federal government. For instance, Senators Orrin Hatch and Charles Grassley co-sponsored legislation during the Clinton Administration that featured an individual mandate. As recently as June 2009, Sen. Grassley expressed his belief that there was a bipartisan consensus for individual mandates in the health care legislation. Both have completely flip-flopped on the issue.

Whatever this debate is about, it certainly isn't constitutional principle. Pretending otherwise is, to use Judge Kessler's words, ignoring reality.

PFAW

The House GOP's Aboogaboogaboogabooga Constitution

For the past few decades, Republicans have aggressively and notoriously acted as if only they love the flag, only they appreciate families, only they are religious, and only they care about national defense. In the past couple of years, inspired by the Tea Party, they've added a new object to which they falsely lay sole claim: the United States Constitution.

Of course, for many of them, it's little more than a fetish. After all, the Republican Party's Constitution has long denied the right to abortion (and, in many cases, the right to privacy altogether), denied church-state separation, denied the right to vote, and denied equality under the law for LGBT people. The Tea Party's version of the Constitution is even more removed from the real thing, as analyzed in a recent PFAW report, Corporate Infusion: What the Tea Party's Really Serving America.

So it's no surprise that House Republicans' latest effort to lay claim to the Constitution – requiring bill sponsors to submit statements specifying the constitutional authority for their legislation – has turned out to be meaningless. As reported by Congressional Quarterly (subscription required):

During a Feb. 11 subcommittee markup on a bill (HR 358) offered by Joe Pitts, R-Pa., to prohibit federal funds from being used to pay for health insurance that covers abortion, New York Democrat Anthony Weiner offered a point of order against the legislation on grounds that its "statement of constitutional authority" does not point to any specific authority for Congress to take such action.

The bill's statement says: "The Protect Life Act would overturn an unconstitutional mandate regarding abortion in the Patient Protection and Affordable Care Act," last year's health care overhaul.

The markup soon became chaotic as lawmakers clashed for nearly an hour over whether the statement passed muster, and whether the Republicans were flouting their own rule. "The rules are the rules, and the Constitution is the Constitution," Weiner exclaimed.

Eventually, Energy and Commerce Chairman Fred Upton, R-Mich., consulted the Rules Committee, which in January issued a handy guide to complying with the new rule. The Rules Committee provided guidance on how statements of constitutional authority might be phrased, but said the only requirement is that a statement be submitted.

"The question of whether the statement is sufficient is a matter for debate and a factor that a member may consider when deciding whether to support the measure," Upton said.

The committee's top Democrat, Henry A. Waxman of California, called that “a mockery” of the rules. "The ruling is that it doesn't make any difference what you say,” he said. “You could say, 'Aboogaboogaboogabooga!' and that's enough to justify the constitutionality of the proposal."

The Constitution that established a careful separation of powers, an independent court system, freedom of speech, freedom of religion, the eradication of slavery, and equality for all is far too precious a document to become just a symbol in meaningless political posturing. Shame on the House Republicans.

PFAW

Arizona Effort to End Constitutional Citizenship Faces Backlash

Two bills proposed by Republican legislators in Arizona that would revoke constitutional citizenship are running into trouble in the State Senate. State Senate President Russell Pearce, a key force behind the state’s draconian SB-1070 anti-immigration law, is leading efforts to deny citizenship to US-born children of undocumented parents, rescinding a right plainly guaranteed by the Constitution's 14th Amendment.

The Arizona Daily Star reports that the bills were unlikely to win the approval of the Judiciary Committee, and now Pearce may bring the legislation to a more sympathetic committee. Children of undocumented parents, immigration activists, and members of the business community spoke out against what they called an unpopular, confusing, and dangerous attempt to undermine the Constitution:

A bid to deny citizenship to the children of illegal immigrants faltered Monday when proponents could not get the votes of a Senate panel.

After more than three hours of testimony at the Senate Judiciary Committee, Sen. Ron Gould, R-Lake Havasu City, yanked the two measures.

Gould said he lacked the backing of four other members of the Republican-controlled panel, which he chairs. Gould said he will keep trying to secure votes. And Senate President Russell Pearce, R-Mesa, said, if necessary, he will reassign the proposal to a more friendly committee.



Even before any testimony, Sen. Adam Driggs, R-Phoenix, said the proposal, based on that idea of Arizona citizenship, raises a host of unanswered questions.

"I don't understand how you become an Arizona citizen if you move to Arizona, what the bureaucratic model would be," he said. "Do you then need to bring your own birth certificate and both of your parents' birth certificates?"

There were also several children who spoke against the bill, including 12-year-old Heide Portugal who said she was born in this country but her parents were not and that a measure like this, had it been in effect, would have denied her citizenship.

The proposals also drew opposition from the business community.

Kevin Sandler, president of Exhibit One, said he worried about the message adopting such a law would send.

Sandler said his firm, which provides audiovisual equipment to courts across the nation, had to lay off six employees after some out-of-state firms boycotted Arizona businesses after lawmakers adopted SB 1070 last year. That measure gives police more power to detain illegal immigrants.

"We've created a toxic environment," he told lawmakers. "Businesses don't want to move here."

He said companies looking to relocate pay attention to the political climate in a state.

"What we've really done is create a not-open-for-business environment here."



Jennifer Allen, executive director of the Border Action Network, said denying citizenship to children born in this country based on a parent's citizenship would create "a permanent underclass" of people in the state.
PFAW

White House Counsel Calls for End to Judicial Gridlock

The Obama Administration is making another call for the Senate to stop its unprecedented holdup of the president’s judicial nominations. White House Counsel Bob Bauer said today that it’s time for the Senate to end its “cold war” over judicial nominees, reports TPM:

"We will do what it take to try to break through gridlock over some of these nominations," Bauer said at an American Constitution Society panel. He said the judicial crisis creates "egregious delays for Americans seeking their day in court around the country."

Bauer said there has been a disturbing lack of urgency in the political class about the crisis in the judicial system, but said he didn't want to get into the typical finger-pointing about who is responsible for the crisis.

"The facts speak for themselves," Bauer said, noting that the confirmation rate is perilously low and that the problem has been developing for a long time.

Numbers compiled by Senate Democrats in December said that the Senate saw the slowest pace of judicial staffing in a generation, with just 39.8 percent of Obama's judges being confirmed.

But however the process got to this point, Bauer said that there is a growing recognition that "we can not in good conscious" allow it to continue.

"Republicans as well as Democrats increasingly acknowledge -- some privately, some publicly -- that we are witnessing something profoundly troubling," Bauer said.

The slow pace of judicial confirmations has begun to have a real impact on the federal courts and their ability to provide swift access to justice. 49 vacancies on the federal bench have been labeled “judicial emergencies,” resulting in long delays for citizens waiting for their day in court. In all, there are over 100 empty seats in the federal courts.
 

PFAW

Justice Scalia Teaches at Michele Bachmann's Constitution School

People For's president, Michael Keegan, has a piece it the Huffington Post today on Justice Antonin Scalia's visit to Rep. Michele Bachmann's Constitution class:

Yesterday, Supreme Court Justice Antonin Scalia traveled to the Capitol to teach a class about the Constitution to members of Congress, led by controversial Tea Party caucus chairwoman Michele Bachmann. Justice Scalia's participation in Bachmann's Constitution school has prompted a heated debate about the proper relationship between Supreme Court justices and political leaders. But the real debate that should be raging is not about judicial ethics, but about the dubious vision of the Constitution that Scalia and leaders of the Tea Party will be discussing.

As Jonathan Turley pointed out in the Washington Post this weekend, while Supreme Court Justices across the ideological spectrum have taken on increasingly prominent public roles, Scalia has become a true "celebrity justice." But Scalia's pugnacious celebrity is in service of a distorted and bizarre reinterpretation of the Constitution championed by the Tea Party movement.

Although the Tea Party seeks to wrap the Constitutional founding in religious doctrine and intention, this view conveniently ignores the Establishment Clause, the clause forbidding religious tests for public office, and the fact that neither the Bible nor God is mentioned in the Constitution's text. Meanwhile, the Tea Party's Constitution offers very few of the hard-won protections ensuring equal rights and liberties for all Americans, and all but eliminates the power of government to protect and empower its citizens in interstate commerce. Tea Party candidates across America in 2010 also called for repeal of the 16th Amendment (making federal income taxation possible), the 17th Amendment (providing for direct popular election of U.S. Senators), and parts of the 14th Amendment.

Bachmann's Constitution classes are not so much an introduction to the founding documents, but to a new interpretation of the Constitution that mirrors the Tea Party's radical political agenda.

Read the whole thing here.

PFAW

The Anniversary of Roe v. Wade

Today, in events around the country, Americans marked the anniversary of a Supreme Court decision that diminished the rights of individuals. Tomorrow, we’ll celebrate the 38th anniversary of a decision that took a great step toward recognizing the rights and liberties of individual citizens: Roe v. Wade.

The Center for Reproductive Rights has gathered reflections from a number of men and women on why Roe v. Wade and its guarantee of women’s reproductive choice matters to them. You can read those, and contribute your own, here: http://reproductiverights.org/en/feature/38-years-of-roe-v-wade

And don’t forget to wear a silver ribbon to show your support for reproductive rights and justice.

Finally, a quote from Justice Louis Brandeis, who in 1928 spoke of the importance of the Constitution’s protections for individual Americans and our freedom “to be let alone”:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.

 


 

PFAW

More Voices Call For a Constitutional Amendment to Reverse Citizens United as Ruling’s Anniversary Approaches

Friday is the first anniversary of the Supreme Court’s 5-4 ruling in Citizens United v. FEC, which helped unleash massive corporate spending in the 2010 elections, and more voices have emerged to denounce the Court’s wrongheaded and extreme ruling. The decision’s impact on public policy debates became more apparent today as the House of Representatives prepares to vote to repeal the health care reform law after pro-corporate groups spent handsomely to discredit the law with bogus charges and attack Congressmen which supported reform.

Ben Cohen and Jerry Greenfield of Ben & Jerry’s ice cream, along with companies like Patagonia, Stonyfield Farms and Honest Tea, have launched Business for Democracy, “a coalition of like-minded businesses to protest a Supreme Court ruling that struck down limits on corporate campaign spending in candidate elections.” The Wall Street Journal reports that “members of ‘Business for Democracy’ believe ‘the decision is inconsistent with the basic ideal of ‘government of the people, by the people, for the people,’" and support a constitutional amendment to reverse the decision.

In today’s Washington Post, Katrina vanden Heuvel discussed how the vast corporate spending to influence the midterm elections was “just an experiment” compared to how corporations plan to sway the 2012 election. But despite the push by pro-corporate groups to keep spending by businesses in elections unchecked, the efforts for legislative remedies and the push for a constitutional amendment to overturn Citizens United persevere:

According to Bill de Blasio, New York City's public advocate, Citizens United spending - that is, spending that was only made possible by the court's ruling - accounted for 15 percent of the roughly $4 billion spent on the 2010 midterm elections. Eighty-five million dollars of Citizens United money was spent on U.S. Senate races alone. Worse, 30 percent of all spending by outside groups was funded by anonymous donations, an illegal action prior to the ruling. Forty million of the dollars spent on Senate races came from sources that might never be revealed.

But as striking as these consequences might be, the 2010 election was just an experiment, the first opportunity to test the new law. In future elections, corporations and shadowy organizations will have a clearer understanding of the boundaries they are operating within, a reality that is sure to translate into more undisclosed cash. And the savvier corporate players know that the mere threat of a corporate onslaught of funding for or against a candidate is enough to win legislative favor, in effect blunting prospects for sound regulation, consumer protection and fair tax policies. As former senator Russ Feingold (D-Wis.), himself a victim of Citizens United spending, said, "It is going to be worse in 2012 unless we do something - much worse."

Yet even as we lament this decision, we should recognize the opportunity it presents. Justice Roberts and his allies overreached so brazenly that they have created an opening for genuine reform.



The clearest and boldest counter to the court's ruling would be a constitutional amendment stating unequivocally that corporations are not people and do not have the right to buy elections. Rep. Donna Edwards (D-Md.) introduced such an amendment to counter Citizens United during the last session of Congress and views it as the only sure way to beat back the court. "Justice Brandeis got it right," she noted last February. " 'We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both.' "

Campaigns for constitutional amendments demand a great deal of patience and tenacity. But as Jamie Raskin, a Democratic Maryland state senator and professor of constitutional law at American University, notes, "American citizens have repeatedly amended the Constitution to defend democracy when the Supreme Court acts in collusion with democracy's enemies." Not only is a push for an amendment a worthy act, it also provides a unique opportunity to educate the broader public, raise the profile of this important issue and force elected officials to go on record as to where they stand. The campaign could create enormous pressure on state legislatures and Congress, prompting changes to campaign finance even before an amendment is ratified.

Success will require a coalition that transcends party. In this case, there is promising news. An August 2010 Survey USA poll found that 77 percent of all voters - including 70 percent of Republicans and 73 percent of independents - view corporate spending in elections as akin to bribery. Broad majorities favor limiting corporate control over our political lives. A coordinated effort, executed right, could unite progressives, good-government reformers and conservative libertarians in a fight to restore democracy.
PFAW

Thomas and Scalia, the Commerce Clause, and the Healthcare Law

Justices Clarence Thomas, joined by Justice Antonin Scalia, issued an interesting dissent yesterday to the Supreme Court's decision not to hear a challenge to a federal law making it a federal crime for a convicted felon to buy, own, or possess body armor (such as a bullet-proof vest) that had ever been sold in interstate or international commerce, even if the felon himself did not obtain it through interstate or international commerce. Congress passed the law as an exercise of the power granted it by the Constitution's Commerce Clause.

The rejected challenge in Alderman v. U.S. asserted that Congress had gone beyond the power granted to it by the Commerce Clause - the same argument that opponents of the landmark healthcare reform legislation have made. Since the constitutionality of the healthcare law under the Commerce Clause will likely be decided by the Supreme Court, Thomas and Scalia's dissent in this case may be a window into how they will rule in that case.

The Los Angeles Times gives one interpretation of the Court's decision:

The Supreme Court may not be so anxious to rein in Congress' broad power to pass regulatory laws under the Constitution's commerce clause, the key point of dispute in the pending court battles over President Obama's health insurance law. ...

The majority's decision, rendered without comment, could make it more difficult for those challenging health insurance reform to win court orders overturning parts of the new law. ...

Thomas referred to a pair of decisions, beginning in 1995, in which the court's conservatives, led by Chief Justice William H. Rehnquist, sought to put clearer limits on Congress' power. ...

But since Chief Justice John G. Roberts Jr. arrived in 2005, the court has not moved to restrain federal power.

A Justice can have any number of reasons for not wanting to hear a case — perhaps the Justice agrees with the lower court, or the issue is not important enough, or the facts of the case make it an inconvenient vehicle to discuss the legal issue, or there has not yet been enough debate among the circuit courts. As in this case, the public rarely knows why the Court voted not to grant cert.

For any of the Justices to voice their disagreement when cert is denied is unusual, and it suggests that they feel strongly about the issue at stake. In the body armor case, Justices Thomas and Scalia wrote:

Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining other Circuits, the Court of Appeals for the Ninth Circuit [uses reasoning that] threatens the proper limits on Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States. ...

[The lower courts’ interpretation of the Commerce Clause] seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled to the store from Hershey, Pennsylvania.

Such an expansion of federal authority would trespass on traditional state police powers. We always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power.

While the dissent addresses this case alone, the fact that they issued it may reflect a strong desire to limit the scope of the Commerce Clause across the board. That would likely have an impact on the healthcare case when it reaches the Supreme Court. It may also signal their willingness to strike down acts of Congress that would unquestionably have been found constitutional in the past.

Historically, the Commerce Clause has been one of the most powerful tools that the American people have to impose reasonable regulations on giant corporations — and to hold them accountable when they do wrong. Justices Thomas and Scalia have been reliable supporters of Big Business on the Corporate Court. Any narrowing of the scope of the Commerce Clause needs to be viewed with caution.

PFAW

The Tea Party’s Constitution

The new House GOP majority is planning to read the entire Constitution aloud on the House floor tomorrow. We can’t argue with that—our elected representatives can always use a brush-up on what’s in the document. But what’s troubling about the GOP’s planned Constitution-reading is that the new far-right class of House Republicans is trying to paint themselves as the sole defenders of our nation’s laws.

In fact, as PFAW’s Jamie Raskin examines in a new report, the Tea Party movement and the elected officials it empowered are in fact fighting against selected values in the Constitution. Raskin writes of the Tea Party’s relationship with the Fourteenth Amendment:

By railing against the Sixteenth and Seventeenth Amendments, the Tea Party makes clear that it is not at peace with our written Constitution, and its hostility to democratic constitutional purposes runs even further back than its opposition to Populist and Progressive-era amendments. The Tea Party has problems with the Fourteenth Amendment’s fundamental protection of equal civil rights, the very anchor of modern democratic constitutionalism. Tea Party activists may dress themselves up in colonial garb and swear their devotion to the Constitution. But the Constitution they revere is not the real one, but only a projection of their own reactionary desires.

Tea Party leaders have a tortured relationship with the Fourteenth Amendment. They have been attacking its very first sentence, which grants citizenship to all people born in the United States: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” This sentence overturned the Dred Scott decision, which had determined that descendants of slaves could never be citizens of the United States with equal rights. Rep. Ron Paul (R-Tex,.) and other activists have been calling for a constitutional amendment to repeal this language in order to solve the crisis they perceive in the advent of Americans they call “anchor babies,” babies born in the United States to undocumented immigrants. At the same time, other conservative activists without the intellectual honesty of Rep. Paul and the constitutional repealers are claiming that this language does not establish birthright citizenship at all, despite the fact that it has always been understood that way. Ignoring the plain text, they contend that Congress can deny citizenship to the “anchor babies” through a simple bill, and they have proposed to do just that in the Birthright Citizenship Act, introduced by Rep. Lamar Smith (R-Tex.), the new chairman of the House Judiciary Committee.

This difference in opinion on whether to repeal this provision of the Fourteenth Amendment or simply deny its existence and legislate over it is a tactical skirmish, yet both sides essentially agree that it is time to subtract a long-standing and fundamental liberty from the Constitution. The last time we tried this was with Prohibition and we could expect similar chaos and division resulting from this kind of repressive effort if it succeeds today.

Beyond the first sentence, the Tea Party has even bigger fish to fry when it comes to the Fourteenth Amendment, which its leaders see, paradoxically, not as the legitimate and authoritative constitutional source for the civil rights revolution of the 1950s and 1960s, but rather as the illegitimate pretext for a massive assault on the civil rights and liberties of private business owners ever since then. This extraordinary controversy over the meaning and uses of the Fourteenth Amendment, the Reconstruction effort that gave rise to it, and the Civil War that made it possible, tells us everything we need to know about the boastful and ubiquitous claim that the Tea Party speaks for liberty and freedom.

Raskin’s report, Corporate Infusion: What the Tea Party’s Really Serving America, also tackles the Tea Party’s complicated relationship with populism, libertarianism, and the original Tea Party of the American Revolution.

You can read the whole thing here.

 

PFAW

Justice Scalia and Sex Discrimination

Justice Antonin Scalia is in the news again, having pronounced yet again that the United States Constitution does not prohibit the government from discriminating against women. The Huffington Post reports on a newly-published interview with the legal magazine California Lawyer:

[Interviewer:] In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?

[Scalia:] Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.

The Huffington Post notes:

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

Although you might not know it from what Scalia says, there is nothing in the Fourteenth Amendment that puts women outside its scope. The text is quite plain on that regard: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws" (emphasis added). The last anyone checked, women are people.

Scalia has previously discussed with legal audiences his opposition to constitutional equality for women. In fact, he wrote a lone dissent 15 years ago in United States v. Virginia making his view clear: He believes that the landmark 1971 Supreme Court case ruling that the government cannot discriminate against women simply because they are women was wrongly decided. (Then-litigator Ruth Bader Ginsburg helped write the brief arguing for equality in that case.)

When it comes to the rights of women, Scalia’s Constitution is a stiff, brittle document, relegating women to the limited rights they were allowed to have in 1868, when the Fourteenth Amendment was adopted.

Interestingly, his approach is far more flexible for corporations, as we saw in Citizens United, when he concluded that mega-corporations have the same First Amendment rights as people for the purposes of election law.

Perhaps if a woman wants to have full constitutional protection from Justice Scalia, she needs to incorporate.

PFAW