Legal

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

Still More Bipartisan Support for Goodwin Liu

Richard Painter, once the chief White House ethics lawyer for President George W. Bush, has a comprehensive, well-researched piece in the Huffington Post whose title says it all: "Qualified, Measured, and Mainstream: Why the Senate Should Confirm Goodwin Liu." Now a professor at the University of Minnesota, this conservative lawyer is one of the many legal scholars from across the political spectrum to support Liu's nomination.

Despite this broad support, perhaps no jurist nominated to the federal bench by President Obama has been maligned, mischaracterized, and mistreated by far right extremists more than Goodwin Liu. Point by point, Painter demolishes the myths about Liu. As Painter explains in detail, the caricature the far right has created bears no relation to reality. As he writes:

Liu's opponents have sought to demonize him as a "radical," "extremist," and worse. National Review Online's Ed Whelan has led the charge with a "one-stop repository" of attacks on Liu. However, for anyone who has actually read Liu's writings or watched his testimony, it's clear that the attacks--filled with polemic, caricature, and hyperbole--reveal very little about this exceptionally qualified, measured, and mainstream nominee. ...

This post brings together a variety of material about Liu:

  • First, I review Liu's background, qualifications, and key endorsements.
  • Second, I highlight two letters from respected authorities that shed important light on Liu's scholarly record.
  • Third, I provide several responses to various attacks on Liu.
  • Fourth, I address Liu's opposition to the Supreme Court confirmations of Roberts and Alito, two Justices whom I vigorously supported as a Bush administration lawyer and whom I believe were outstanding additions to the Court.

These materials summarize why Liu is an excellent choice for the federal bench. But even if you read this entire post, nothing substitutes for reading Liu's writings or watching his testimony for yourself. That is how I reached the conclusion that Liu deserves an up-or-down vote in the Senate and ought to be confirmed.

Liu's nomination has been stalled by Republican senators for more than a year. Today, he appears yet again before the Senate Judiciary Committee. When the committee once again approves his nomination and sends it to the Senate floor, leadership should schedule a vote, defy any GOP threats to filibuster, and get this most talented of judicial nominees confirmed at last.

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President Obama Calls DOMA Unconstitutional

Attorney General Eric Holder has announced that the Department of Justice will no longer defend Section 3 of the Defense of Marriage Act in court because it is unconstitutional. This is the provision prohibiting federal recognition of the marriages of gay or lesbian couples. As if that wasn't big enough news by itself, DoJ has concluded that legal classifications based on sexual orientation, like those based on race, sex, national origin, and religion, should be subject to a higher level of judicial scrutiny.

While the Department has previously defended DOMA against legal challenges involving legally married same-sex couples, recent lawsuits that challenge the constitutionality of DOMA Section 3 have caused the President and the Department to conduct a new examination of the defense of this provision. In particular, in November 2010, plaintiffs filed two new lawsuits challenging the constitutionality of Section 3 of DOMA in jurisdictions without precedent on whether sexual-orientation classifications are subject to rational basis review or whether they must satisfy some form of heightened scrutiny. Windsor v. United States, No. 1:10-cv-8435 (S.D.N.Y.); Pedersen v. OPM, No. 3:10-cv-1750 (D. Conn.). Previously, the Administration has defended Section 3 in jurisdictions where circuit courts have already held that classifications based on sexual orientation are subject to rational basis review, and it has advanced arguments to defend DOMA Section 3 under the binding standard that has applied in those cases.

These new lawsuits, by contrast, will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

This is the first recognition by the United States government that gays and lesbians have suffered a long history of discrimination so bad that it makes suspect any laws that treat people differently based on sexual orientation.  Moreover, that discrimination continues today and limits their political influence.

[T]he adoption of laws like those at issue in Romer v. Evans [prohibiting the state from passing civil rights protections for gay people] and Lawrence [laws making their private sexual conduct a crime], the longstanding ban on gays and lesbians in the military, and the absence of federal protection for employment discrimination on the basis of sexual orientation show the group to have limited political power and "ability to attract the [favorable] attention of the lawmakers." Cleburne, 473 U.S. at 445. And while the enactment of the Matthew Shepard Act and pending repeal of Don't Ask, Don't Tell indicate that the political process is not closed entirely to gay and lesbian people, that is not the standard by which the Court has judged "political powerlessness." Indeed, when the Court ruled that gender-based classifications were subject to heightened scrutiny, women already had won major political victories such as the Nineteenth Amendment (right to vote) and protection under Title VII (employment discrimination).

The Attorney General's announcement notes that it will continue to enforce DOMA until it is repealed by Congress or struck down definitively by the courts. In addition, it will work to ensure that Congress, should it wish, has the opportunity to defend the law in court since the Administration cannot in good conscience do so. (This would presumably avoid a situation like the one in California, where the state refused to pursue an appeal of the district court ruling against Proposition 8, leaving in doubt whether anyone has standing to do so.)

PFAW

Obama Rescinds Dangerous Bush-Era "Conscience Regulation"

Earlier today, the Obama Administration rescinded most of a Bush-era "conscience clause" regulation that gave special legal rights to health workers who refuse to provide care they find objectionable on personal or religious grounds. Under the Bush rule, hospitals, health plans, and clinics would lose federal funding unless they allowed doctors and other employees to refuse to provide medical care that violated their personal, moral, or religious beliefs. As reported in the Washington Post:

The Health and Human Services Department eliminated nearly the entire rule put into effect by the administration of President George W. Bush during his final days in office that was widely interpreted as allowing such workers to opt out of a broad range of medical services, such as providing the emergency contraceptive Plan B, treating gay men and lesbians and prescribing birth control to single women. ...

The rule was sought by conservative groups, which argued that workers were increasingly being fired, disciplined or penalized in other ways for trying to exercise their "right of conscience."

Women's health advocates, family-planning proponents, abortion rights activists and others had condemned the regulation, saying it created a major obstacle to providing many health services, including abortion, access to the emergency contraception Plan B, birth control pills and other forms of family planning, as well as infertility treatment and possibly a wide range of scientific research. Advocates for end-of-life care also said it could enable doctors, nurses and others to refuse to honor patients' wishes.

Hospitals and other healthcare providers should not be denied the freedom to put the needs of their patients first. If a woman who has been raped needs emergency contraception, a hospital should have the right to actually require its employees to provide that essential care, regardless of their personal beliefs. When a patient needs medical help in an emergency, she shouldn't have to keep her fingers crossed that she happens to get a doctor whose religious beliefs don't clash with hers. When a family has to make an agonizing end of life decision, they should be able to do what's best for their loved one, not what's best for a complete stranger. Medical organizations should be able to hold themselves out as reliable providers of the services they offer.

Under the Bush rule, such entities were forced to run their operations in a way that put people's health - especially women's health - at severe risk, just to please the religious right.

It is important to note that the Obama Administration's move comes on the same day that the House of Representatives voted to deny all federal funding to Planned Parenthood clinics.

The religious right's war against women's rights goes on.

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Dehumanizing Rhetoric, Inhumane Policy

The Arizona State Senate is considering a bill that would require hospitals to check whether patients are in the country legally, and contact federal authorities if they are not.

The bill is similar to Arizona's legislature’s attempt to require local police to check the immigration status of those they detain, even at routine traffic stops. The first bill—portions of which have been blocked by a federal court—threatened to make the state significantly more dangerous by removing all incentive for undocumented immigrants to cooperate with local law enforcement. But the hospitals bill might be, unbelievably, even more dangerous—it would prevent undocumented immigrants from seeking critical health care, driving them to either suffer without care or seek underground, and likely unsafe, treatment.

Right Wing Watch reported on two immigration panels at last week’s Conservative Political Action Committee—both were notable not only for their overtones of white supremacy, but for the dehumanizing language participants used to describe undocumented immigrants.

As we noted earlier this year in a report on right-wing immigration rhetoric, dehumanizing language is key to implementing inhumane policies. You know that that rhetoric has gone way too far when elected officials are proposing fixing the immigration system by preventing sick people from seeking safe and legal health care.
 

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Judge's Children Respond to GOP Congressman Who Wanted to Put Their Father "On the Endangered Species List"

In an address to the Montana State Legislature, Republican Congressman and Senate-candidate Denny Rehberg blasted a federal judge who ruled that the grey wolf had to remain on the Endangered Species list, saying: “When I first heard his decision, like many of you I wanted to take action immediately. I asked: how can we put some of these judicial activists on the Endangered Species list?”

Despite the call for greater civility in politics after the shooting in Tucson, Arizona, that left a federal judge and five others dead, Rehberg continued to employ violent rhetoric to score political points against a judge who was simply doing his job.

In the wake of the Tucson shooting, People For the American Way President Michael Keegan said that all people have a “duty to consider the impact of our words and to approach political discourse with honesty and responsibility,” and the politicians “who denounce violence should also denounce the rhetoric that can incite it.”

Now, the children of the vilified judge are speaking out against the Congressman’s ferocious language targeting their dad in a letter to the Helena Independent Record. The judge’s children ask Rehberg “to remember that words matter, and inflammatory words inflame,” and point out that their father was simply following his role as a judge to “interpret and apply the laws” no matter how unpopular. The judge’s children remind Rehberg and all politicians that such vicious rhetoric has no place in the political and legal debate:

We are writing to express our disappointment and voice our concerns over the comments that Congressman Rehberg recently made at a joint session of the Montana Legislature. Although Congressman Rehberg didn’t identify by name U.S. District Judge Don Molloy — our dad — it was clear to whom he referred.

For the benefit of those not there, here is what was said: When referring to a recent federal court decision about wolves and the Endangered Species Act, Rehberg stated, “When I first heard his decision, like many of you I wanted to take action immediately. I asked: ‘How can we put some of these judicial activists on the endangered species list.’ I am still working on that!”

We, too, are still trying to figure out exactly how he thought it appropriate or responsible to make these comments, especially in light of recent events in Tucson.

We fully recognize that the wolf issue has become a polarizing, politicized issue. Through the years, we have come to understand that the press and public will often critique court decisions without a full understanding of the law or facts. Many cases, like the one involving wolf delisting, are complicated. Politicians like Congressman Rehberg have every right to comment, and like the rest of the public, they have the right to do so on an uninformed basis. But a line is crossed when language such as that used by Congressman Rehberg is spoken. It is not acceptable or appropriate to make veiled or outright threats of harm toward anyone, including a judge who is performing a constitutional responsibility to interpret and apply the laws that Congress enacts, based on the facts and law presented in the court room, and not on public opinion.

This is a personal issue for us, and not only because of these comments about Judge Molloy. We are proud Montanans. In fact, we are fourth-generation Montanans and our parents raised us to respect other people, even people with whom we may disagree. We grew up in a Montana where threats and jeers were unwelcome on a school playground and unheard of in political discourse.

It is our firm belief that we must hold our elected officials to a standard of conduct that is representative of Montanans and how we wish to be known. The respect and civility that we call upon Congressman Rehberg to demonstrate are qualities that we see every day in our fellow Montanans. Each of us can and should rise above the divisive and shallow rhetoric that is becoming so common in public discourse. Each of us can commit to showing through our own words and actions how we can debate the issues with respect, thoughtfulness and vigor.

It is our hope that the image of Montana and its citizens that we have grown up holding tightly to remains — that we are strong in our willingness to stand up and behave responsibly and respectfully to all. For all Montanans, and on behalf of our family, we ask Congressman Rehberg to remember that words matter, and inflammatory words inflame.

Molly, Brynn, Jennifer and Daniel TC Molloy are the children of U.S. District Judge Don Molloy of Missoula.
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House GOP Plans Attack on Fair Elections

After taking power in the House, the new Republican majority is preparing to eliminate one of the most significant efforts to ensure fair elections: the public finance system in presidential races. Instead of making the public finance system stronger, the GOP wants to do away with it altogether with little if any debate. Already, many House Republicans are pushing legislation that would allow corporations to make direct donations to candidates for public office even though “85% of voters say that corporations have too much influence over the political system today.” By eliminating the ability of campaigns to opt to receive public finances, candidates will become more, not less, dependent on the shadowy corporate dollars flowing into our elections.

Andy Kroll of Mother Jones reports on the GOP’s plan to scrap public financing of presidential campaigns:

On Wednesday, House Republicans plan to rush to the floor a bill that would eliminate the federal government's presidential financing system—in the process, violating recent pledges by the GOP's leadership of increased transparency and debate in Congress. Not one hearing has been held on the legislation, nor has a single committee debated its merits. If it passes, it will roll back more than 30 years of law born out of the Watergate scandal, eviscerating one of the few remaining protections stopping corporations from heavily influencing, if not outright buying, American elections, reform experts say.

Democratic lawmakers and campaign finance reformers blasted the bill, not only for seeking to kill public financing but for breaking the GOP's campaign promises on transparency and accountability. "This is a sneak attack on the system," says Rep. Chris Van Hollen (D-Md.). "It's a total break from their public pledge for transparency and openness." Fred Wertheimer, a longtime campaign finance reform advocate at Democracy 21, called the bill "a gross abuse of the legislative process."



Public financing of presidential campaigns provides matching tax dollars to the small donations received by candidates who agree to publicly finance their campaigns, instead of relying on private donations. The intent is to encourage small donations, and the burden on taxpayers isn't much: Americans can voluntarily contribute $3 to the fund on their federal tax filings. The public finance system was created in the aftermath of the Watergate scandal in the mid-1970s. After President Richard Nixon's re-election campaign was found to have illegally accepted hundreds of thousands of dollars from big corporations, Congress created a public financing system so that candidates wouldn't have to rely on corporations and deep-pocketed donors to finance their campaigns.



The way reformers see it, the presidential public financing system needs repair, not repeal. Meredith McGehee, policy director at the Campaign Legal Center, says the amount of public funds currently available to candidates is too small to be competitive in modern presidential races. She says lawmakers need to update the system to better emphasize small donations to candidates and raise the total amount of public funding available. "Imagine if you didn't make any changes to the tax code since 1976. Of course public financing is outdated. The issue, then, is not to get rid of, but how to fix."

Update: The House of Representatives voted 239-160 to end the Presidential Election Campaign Fund, although it's chances to pass the Senate are low.

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Wear a Trust Women Silver Ribbon, Spread the Word, Take Action

Saturday marks the 38th anniversary of Roe v. Wade. This landmark ruling, along with the earlier Griswold v. Connecticut, recognized a constitutional right to privacy and protected a woman's right to make reproductive decisions based on her own life, health, and conscience. Ensuring that women are trusted to make those decisions is a cause that stills needs our support all these years later.

As you may know, People For the American Way has joined the Silver Ribbon Campaign to Trust Women. Along with our Silver Ribbon partners, we’re asking you to wear a silver ribbon during Trust Women Month – January 22 through February 22. And when you do, don’t forget to spread the word and take action.

From our friends at Silver Ribbon:

Since the recent election, the opponents of reproductive health care and women’s rights have claimed they speak for America. They do not.

It’s time to express the true voices of America.

It’s time to come together and show our strength.

We need to stand by each other and claim our rights to the legal health care to which we’re entitled.

Join the Silver Ribbon campaign to Trust Women, for Reproductive Rights and Justice.

Wear a Trust Women Silver Ribbon. Order your Silver Ribbon pin engraved with the credo: "Trust Women," >> for a $5 donation, and wear it through Feb. 22. (or make your own!)

Spread the word. Get your Twibbon on. Follow us on Twitter.

Take action! Donate today to one or more of our partner organizations. January 22 is the 38th anniversary of the Roe v. Wade decision. Our Silver Ribbon partners will be organizing a series of calls to action leading up to this anniversary. Check our Take Action section for the latest updates from our partner organizations.

Join us!

The Silver Ribbon represents science over ideology.

We who proudly wear it:
  • Support reproductive rights
  • Support free access to birth control
  • Support keeping abortion legal and accessible
Trust Women!

For more information, please click here.

PFAW

Cue the Violins: Inanimate Corporations Have Feelings, Too

On Wednesday, in a case involving the Freedom of Information Act (FOIA), the nation's corporate giants are asking the Supreme Court to rule that they have a right to "personal privacy" just as people do. If the Corporate Court ignores the ordinary meaning of the term "personal privacy" and grants corporations their wish to have the same rights as people, as in Citizens United, corporations will be able to block the news media and government watchdogs from accessing important government records that corporations would prefer remain hidden.

The case started several years ago, when the FCC investigated alleged overcharges by AT&T. After the investigation, AT&T's competitors filed a FOIA request to get the FCC to release documents on what they had found. The FCC said it would not disclose confidential commercial information about AT&T, pursuant to a specific exemption in the FOIA statute. However, the company argued that certain additional material would cause the company embarrassment and therefore fell into a separate statutory FOIA exemption - Exemption 7(C) - allowing government agencies not to disclose material compiled for law enforcement purposes that would "constitute an unwarranted invasion of personal privacy."

The FCC ruled that Exemption 7(C) does not cover a corporation's "privacy interest," noting that a corporation's interests are of necessity business interests, not privacy ones.

However, the agency was overruled by the Third Circuit Court of Appeals, which held that FOIA's statutory language "unambiguously" indicates that a corporation may have a personal privacy interest within the meaning of this FOIA exemption. The court said that:

  • FOIA defines "person" to include a corporation; and
  • the term "personal" is derived from the word "person" and is simply the adjectival form of the word.

Therefore, the court reasoned, corporations have personal privacy under the FOIA exemption. And because this interpretation was unambiguous, the court said statutory purpose, legislative history, and contrary case law from other circuits were not relevant.

Nevertheless, it did devote a footnote apiece to these three factors and claimed they were not inconsistent with its interpretation. For instance:

Finally, the [DC Circuit Court of Appeals] in Washington Post noted that Exemption 7(C) concerns only "intimate" details, including "marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption, family fights, and reputation." But a corporation, too, has a strong interest in protecting its reputation.

Cue the violins: Inanimate corporations have feelings, too.

Numerous corporate interests, including the Chamber of Commerce, have filed amicus briefs in support of AT&T, arguing that inanimate corporations have "personal privacy."

If the Roberts Court - with Justice Kagan recused - rules in favor of AT&T, it will significantly weaken the ability of news organizations and government watchdogs to examine government records containing vital information about corporate behavior affecting public health and safety – records that would otherwise remain hidden from the American people. In addition, the Court may seize the opportunity to lay the legal groundwork for treating inanimate corporations like people in other respects.

At least before Pinocchio became human, he had to prove himself truthful and unselfish. Here, in contrast, we have profit-seeking entities asking for humanity so they can hide their embarrassing conduct.

PFAW

Wear a Trust Women Silver Ribbon, Spread the Word, Take Action

January 22, 2011 will mark the 38th anniversary of Roe v. Wade. This landmark ruling, along with the earlier Griswold v. Connecticut, recognized a constitutional right to privacy and protected a woman's right to make reproductive decisions based on her own life, health, and conscience. Ensuring that women are trusted to make those decisions is a cause that stills needs our support all these years later.

People For the American Way has joined the Silver Ribbon Campaign to Trust Women. Along with our Silver Ribbon partners, we’re asking you to wear a silver ribbon during Trust Women Month – January 22 through February 22. And when you do, don’t forget to spread the word and take action.

From our friends at Silver Ribbon:

Since the recent election, the opponents of reproductive health care and women’s rights have claimed they speak for America. They do not.

It’s time to express the true voices of America.

It’s time to come together and show our strength.

We need to stand by each other and claim our rights to the legal health care to which we’re entitled.

Join the Silver Ribbon campaign to Trust Women, for Reproductive Rights and Justice.

Wear a Trust Women Silver Ribbon. Make your own Silver Ribbon, or for a $5 donation you can order a Silver Ribbon pin. Wear your Silver Ribbon from January 22nd to February 22nd to show your solidarity.

Spread the word. Get your Twibbon on. Follow us on Twitter.

Take action! Donate today to one or more of our partner organizations. January 22 is the 38th anniversary of the Roe v. Wade decision. Our Silver Ribbon partners will be organizing a series of calls to action leading up to this anniversary. Check our Take Action section for the latest updates from our partner organizations.

Join us!

The Silver Ribbon represents science over ideology.

We who proudly wear it:
  • Support reproductive rights
  • Support free access to birth control
  • Support keeping abortion legal and accessible
Trust Women!

For more information, please click here.

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.

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Deferred Decision in Prop 8 Case

Earlier today, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued an opinion in the Proposition 8 case, unanimously concluding that they do not have enough information to decide if the Proposition 8 proponents have standing to pursue the appeal. Only if they have standing can the Ninth Circuit even consider the merits of the case.

The answer depends on what California state law is, so they have asked the California Supreme Court for guidance. We will have to wait for that court to respond before we learn if the Ninth Circuit will even get to the merits of the case.

If the Ninth Circuit should eventually overturn Proposition 8, we will doubtless hear accusations from the right that the judges pursued a political agenda to get the desired result at the expense of the law. Today’s decision undercuts any such argument. All three judges deferred making a decision until they could address the basic legal question of standing. This is hardly the move of judges with a political agenda and contempt for law.

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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

The Conservative Assault on the Constitution

Last week, SCOTUSBlog had a podcast interview with legal scholar Erwin Chemerinsky, discussing his new book The Conservative Assault on the Constitution. The blog has asked Chemerinsky some follow-up questions, and his responses are worth reading.

For instance, he discusses the concept of a living Constitution and the hypocrisy behind the Right's claims of a consistent approach to judging cases.

Q. Within the context of the "conservative assault" you discuss in the book, can you please define the terms "living constitution" and "strict constructionist"?

- Everyone is a strict constructionist in that everyone believes that the text of the Constitution should be followed where it is clear. But the phrase "strict constructionist" was coined by Richard Nixon to refer to something more ideological: Justices who followed the conservative approach to interpreting constitutional provisions. Interestingly, conservatives are not strict constructionists in interpreting the Second Amendment. There conservatives read the Second Amendment as if it simply said "the right of the people to keep and bear arms shall not be infringed." They ignore the first half of the Amendment which speaks of the right existing for the purpose of having a well-regulated militia.

A belief in a "living Constitution" rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted. A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs. There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.

He also discusses how self-professed conservative "originalists" are selective in when they pay attention to original intent.

Q. You write in your book that "it is clear that conservatives often abandon the original-meaning approach when it does not serve their ideological purposes." Can you please elaborate - perhaps by providing an example or two?

- Affirmative action. I am skeptical that we can ever really know the original intent or meaning for a constitutional provision. But if ever it is clear, it is that the drafters of the equal protection clause of the Fourteenth Amendment intended to allow race-conscious programs of the sort that today we call affirmative action. The Congress that ratified the Fourteenth Amendment adopted many such programs. Yet originalist Justices, like Antonin Scalia and Clarence Thomas, pay no attention to this history in condemning affirmative action. Another example is campaign finance. There is absolutely no indication that the drafters of the First Amendment intended to protect the speech of corporations (that did not occur for the first time until 1978) or spending in election campaigns. But conservative Justices nonetheless find a First Amendment right for corporations to engage in unlimited expenditures in campaigns.

Of course, that is a reference to Citizens United, where the aggressively activist Roberts Court handed our elections over to powerful corporate interests. There is a direct line from that case to the new corporate-friendly gang that will be running the House of Representatives for the next two years.

Who sits on the Court has consequences for us all.

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Judge Said to Have Made "Obvious and Significant Error" In Health Care Ruling

Once people had time to look past the headlines and actually read this week's opinion striking down a key component of the Affordable Care Act, a number of them are pointing out what they consider a serious flaw in Judge Hudson's reasoning. The key error, they claim, is when the judge wrote:

If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution.

Calling the opinion "Amateur Hour," Talking Points Memo writes:

Legal experts are attacking Judge Henry Hudson's decision on the merits, citing an elementary logical flaw at the heart of his opinion. And that has conservative scholars -- even ones sympathetic to the idea that the mandate is unconstitutional -- prepared to see Hudson's decision thrown out.

"I've had a chance to read Judge Hudson's opinion, and it seems to me it has a fairly obvious and quite significant error," writes Orin Kerr, a professor of law at George Washington University, on the generally conservative law blog The Volokh Conspiracy.

Kerr and others note that Hudson's argument against Congress' power to require people to purchase health insurance rests on a tautology. ...

The Necessary and Proper Clause allows Congress to take steps beyond those listed in the Constitution to achieve its Constitutional ends, including the regulation of interstate commerce. Hudson's argument wipes a key part of the Constitution out of existence. Kerr says Hudson "rendered [it] a nullity."

Kerr's co-blogger, Case Western Reserve University Law Professor Jonathan Adler agreed, though he cautioned that Hudson's error doesn't necessarily imply that the mandate is constitutional.

In an interview with TPM this morning, Timothy Jost of Washington and Lee University, a supporter of the mandate, called the logic on this point "completely redundant."

Ouch.

Steve Benen in the Washington Monthly wrote:

That's a rather bizarre legal analysis.

"Bizarre" is one way to describe it. Perhaps another way would be "outcome-based judicial activism."

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Three Discharged Service Members Sue Over Don’t Ask, Don’t Tell

Earlier this month, Defense Secretary Robert Gates implored Congress to lift the widely unpopular Don’t Ask, Don’t Tell policy before it could be lifted by federal courts. A federal judge has already ordered the ban on gays and lesbians serving openly in the military to be lifted, but her order is on hold while the decision is appealed. Now, the Service Members Legal Defense Network has helped three more former service members discharged under Don’t Ask Don’t Tell to sue the government over their firings.

A repeal of the policy failed in a procedural debacle on the Senate floor last week, but Sens. Susan Collins and Joe Lieberman have introduced a stand-alone repeal bill in hopes that the Senate will pass it before it leaves for the holidays. Michael Almy, one of the plaintiffs in the new lawsuit, told the Guardian he hoped senators would take a good look at their priorities:

Almy, a decorated officer who was in the Senate chambers last week when Republicans refused to let the repeal measure advance, said he still hopes lawmakers can be persuaded to take up the standalone bill, even if it means postponing their holidays.

Almy is the son of an air force officer who did not know he was gay. He was discharged in 2005 after another member of the air force searched his computer files and found a private email Almy had written to another man when he was in Iraq. His 13-year career ended with him being given a police escort off the base.

"I spent four Christmases deployed in the Middle East," he said. "If we can make that kind of sacrifice for our nation, certainly our senators can give up a Christmas to get this done."
 

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77% of Business Leaders Want Disclosure Laws

Last week, we wrote about the negative reaction some local chambers of commerce have had to the U.S. Chamber of Commerce’s $75 million spending spree on campaign ads. It turns out small businesses aren’t the only ones upset by the Chamber’s political spending and wary of getting involved in national politics. Eliza Newlin Carney of the National Journal reports that many business leaders are questioning the wisdom of contributing to political campaigns, and especially of keeping those contributions secret:

In a Zogby International poll of more than 300 business leaders commissioned by the CED, fully 77 percent said that they “strongly” or “somewhat” support disclosure of the political money corporations spend, both directly and indirectly through third-party groups that run campaign ads. Two-thirds supported the statement that “the lack of transparency and oversight in corporate political activity encourages behavior that puts corporations at legal risk and endangers corporate reputations.”

Caught in the crossfire is the U.S. Chamber, whose pro-GOP spending and advertising blitz was underwritten in part by seven-figure corporate contributions. A trio of Massachusetts investors last month filed shareholder resolutions at some half-dozen corporations that sit on the chamber’s board, urging them to take a more active role on what they called the trade group’s “passive and compliant” board.

Shareholders object to the chamber’s aggressive and partisan midterm spending, its recent lobbying push to challenge or stall recently-enacted financial reforms, and to its policy positions on issues such as climate change, said Timothy Smith, senior vice president at Boston-based Walden Asset Management, one of three investor groups that issued the challenge. Shareholders have also approached close to two dozen companies that do not serve on the chamber’s board, Smith said.

And it seems that many business leaders took to heart the lesson that Target learned the hard way this summer when it spent money to help the campaign of far-right Minnesota gubernatorial candidate Tom Emmer and met with a strong backlash:

“I think there are real counter-pressures developing,” said Bruce Freed, president of the Center for Political Accountability, a nonprofit that advocates better corporate governance. Business leaders are increasingly sensitive to the risks that their campaign expenditures pose, said Freed. The uproar over Target Corp.’s indirect backing for a Minnesota gubernatorial candidate opposed to gay rights was a wakeup call, he added: “Companies are recognizing that we really need to protect ourselves.”

When 77% of business leaders join 84% of Americans in agreeing that their political spending should be disclosed to the public, it makes you wonder just who Republicans in Congress are looking out for by refusing to pass disclosure legislation.
 

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Today's Healthcare Ruling: Ideology and Judicial Activism

Today, a Bush-nominated federal district court judge struck down the insurance mandate of the landmark health care bill. This is the bill that Republicans did everything in their power to derail - including creating the breathtaking lie that Democrats wanted to kill voters' grandmothers.

The modern Republican Party has a deep-rooted antipathy toward the federal government (unless they're running it). They have created all sorts of legal theories to reinterpret the Constitution - especially the Commerce Clause - so as to prevent Americans from using government as the founders intended to tackle our most serious nationwide problems. With a federal government made impotent by this revision of the Constitution, corporations will continue to pollute, cheat their consumers, discriminate against their workers, and put out fatally defective products with impunity.

Today, it is health care legislation on the docket. But that is just the opening salvo against a wide variety of government endeavors.

Talking Points Memo observes:

A year ago, no one took seriously the idea that a federal health care mandate was unconstitutional. And the idea that buying health care coverage does not amount to "economic activity" seems preposterous on its face. But the decision that just came down from the federal judgment in Virginia -- that the federal health care mandate is unconstitutional -- is an example that decades of Republicans packing the federal judiciary with activist judges has finally paid off.

Indeed, contrary to conservatives' long-standing anathema to "activist" judges who "legislate from the bench," that is precisely what Judge Hudson appears to be doing in this case.

For instance, on page 38:

However, the bill embraces far more than health care reform. It is laden with provisions and riders patently extraneous to health care - over 400 in all.

These are not the words of a neutral, apolitical judge, but of someone with a policy ax to grind and his own view of what the legislative process should have comprised. The activist ax comes out again on page 39, when discussing whether striking down the insurance mandate section of the bill requires the judge to strike down the entire law:

The final element of the analysis is difficult to apply in this case given the haste with which the final version of the 2,700 page bill was rushed to the floor for a Christmas Eve vote. It would be virtually impossible within the present record to determine whether Congress would have passed this bill, encompassing a wide variety of topics related and unrelated to health care, with Section 1501.

If you didn't know better, you might think this was a talking points document put out by Congressional opponents of health care reform.

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Evolving Media Narrative of the Roberts Court

More and more Americans have noticed the Roberts Court's habit of twisting the law in order to benefit powerful corporations over the rights of individuals. As recently as a year ago, the national dialogue on the Court rarely touched on this issue. But last January's Citizens United decision was so outrageous that it made people see both the Court's previous decisions and its current work through a new lens. Evolving press coverage reflects the changing paradigm in how Americans view the Supreme Court.

For instance, earlier this week, the Supreme Court announced that it had agreed to hear a case of sex discrimination against Wal-Mart and a separate case involving global climate change. Press coverage recognized the common factor in the Court's decisions to hear these very different and unrelated cases.

The Los Angeles Times wrote:

The Supreme Court announced Monday it will hear two major appeals from corporate America that seek to block mass lawsuits, one involving a huge sex bias claim against Walmart and the other a massive environmental suit that seeks to hold coal-fired power plants liable for causing global warming.

In both cases, the justices agreed to consider stopping these suits before they can move toward a trial.

Monday's move is only the latest sign that the Roberts Court is inclined to rein in big-money lawsuits against business. The conservative justices have been particularly skeptical of sprawling suits that could run on for years and lead to enormous verdicts.

Under a headline reading "Two Supreme Court Cases to Test Corporate Interests," the Washington Post reported:

The Supreme Court on Monday agreed to hear two major challenges brought by corporate interests, ...

In both cases, corporations are challenging decisions by federal appeals courts that the suits can go forward. They come before a court that traditionally has been sympathetic to business interests, but is sensitive about recent criticism from the left that it favors corporations over consumer and environmental groups.

Time wrote:

Two federal courts have ruled that their suit can proceed as a class action on behalf of between 500,000 and 1.5 million women, but on Monday the Supreme Court announced it would review that decision. It looks suspiciously like another case in which the court's conservative majority will twist a procedural rule to prevent victims of discrimination from getting a fair chance at justice

As Jeffrey Toobin observed in the New Yorker this week:

This is the rule in the current Supreme Court. If there is a human being on one side of the "v." and a corporation on the other, the corporation wins.

The Roberts Court is learning that if you look like a duck, walk like a duck, and quack like a duck for long enough, people will eventually realize that you are, indeed, a duck.

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Senate Majority Leader Harry Reid Files Cloture on DREAM Act

Because, thanks to the ongoing GOP obstruction in the Senate, virtually nothing can get done without a time consuming cloture vote, Senate Majority Leader Harry Reid filed cloture late yesterday on the motion to begin debate on the DREAM Act. If passed, the legislation would allow undocumented immigrants who were brought to the United States as children to gain legal status and a path to citizenship if they attend college or join the armed forces.

The Brookings Institution gives a rundown of what the legislation includes:

The Development, Relief and Education of Alien Minors (DREAM) Act would offer conditional citizenship to a specific group of young individuals. To gain conditional status under the DREAM Act one must have entered the United States before the age of 16, been in the country continuously for five years, earned a high school diploma (or GED) and not committed any crimes that would otherwise restrict someone from entering the country. During a six-year period of conditional status, this group will have been required to complete two years in uniformed service or two years enrolled at an institution of higher learning, and must pass a second criminal background check before being considered for full citizenship. It should also be noted that the DREAM Act only applies to young people currently in the country so that it will not encourage additional families to bring children to the U.S. looking for benefits.

The bill seems to have plenty of support. Orrin Hatch, Sam Brownback, Susan Collins and Olympia Snowe have all supported it in the past. But when it comes to Republican obstruction, good policy takes a backseat to good politics.

By filing the cloture petition, Reid will be able to hold the vote on cutting off debate and then proceeding to consideration of the bill on Wednesday. We’ll keep you posted as the issue moves forward.

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